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Standards Of Proof


Wings

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[Federal Register: March 31, 2006 (Volume 71, Number 62)]

[Proposed Rules]

[Page 16463-16475]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr31mr06-32]

[[Page 16463]]

Part III

Department of Veterans Affairs

38 CFR Part 5

General Provisions; Proposed Rule

[[Page 16464]]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AL87

General Provisions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize

and rewrite in plain language general provisions applicable to its

compensation and pension regulations, including definitions. These

revisions are proposed as part of VA's rewrite and reorganization of

all of its compensation and pension rules in a logical, claimant-

focused, and user-friendly format. The intended effect of the proposed

revisions is to assist claimants, beneficiaries and VA personnel in

locating and understanding these general provisions.

DATES: Comments must be received by VA on or before May 30, 2006.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery

to Director, Regulations Management (00REG1), Department of Veterans

Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to

(202) 273-9026; or e-mail through http://www.Regulations.gov. Comments

should indicate that they are submitted in response to ``RIN 2900-

AL87.'' All comments received will be available for public inspection

in the Office of Regulation Policy and Management, Room 1063B, between

the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except

holidays). Please call (202) 273-9515 for an appointment.

FOR FURTHER INFORMATION CONTACT: Bob White, Acting Chief, Regulations

Rewrite Project (00REG2), Department of Veterans Affairs, 810 Vermont

Avenue, NW., Washington, DC 20420, (202) 273-9515.

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has

established an Office of Regulation Policy and Management to provide

centralized management and coordination of VA's rulemaking process. One

of the major functions of this office is to oversee a Regulation

Rewrite Project (the Project) to improve the clarity and consistency of

existing VA regulations. The Project responds to a recommendation made

in the October 2001 ``VA Claims Processing Task Force: Report to the

Secretary of Veterans Affairs.'' The Task Force recommended that the

compensation and pension regulations be rewritten and reorganized in

order to improve VA's claims adjudication process. Therefore, the

Project began its efforts by reviewing, reorganizing and redrafting the

content of the regulations in 38 CFR part 3 governing the compensation

and pension program of the Veterans Benefits Administration. These

regulations are among the most difficult VA regulations for readers to

understand and apply.

Once rewritten, the proposed regulations will be published in

several portions for public review and comment. This is one such

portion. It includes proposed rules regarding the scope of the

regulations in new part 5, general definitions, and general policy

provisions.

Outline

Overview of New Part 5 Organization

Overview of Proposed Subpart A Organization

Table Comparing Current Part 3 Rules with Proposed Part 5 Rules

Content of Proposed Regulations

5.0 Scope of applicability.

5.1 General definitions.

5.2 [Reserved]

5.3 Standards of proof.

5.4 Claims adjudication policies.

5.3 Standards of proof.

The next regulation in this NPRM, proposed Sec. 5.3, addresses the

standards of proof used in the adjudication of claims for VA benefits.

New proposed Sec. 5.3(a), "Applicability,'' explains that Sec. 5.3

states the general standards of proof for proving facts and rebutting

presumptions and that these standards apply unless a statute or another

regulation specifically provides otherwise. For example, 38 U.S.C. 1111

requires "clear and unmistakable evidence'' that an injury or disease

existed before acceptance and enrollment for service and was not

aggravated by service to rebut the presumption that a veteran was in

sound condition when examined, accepted, and enrolled for service.

Accordingly the default standard in Sec. 5.3(b) for rebutting a

presumption would not apply because there is a statute that

specifically provides another standard.

Proposed Sec. 5.3(b) addresses the default standard for proving a

specific fact or facts material to the determination of a claim. The

relevant statute, 38 U.S.C. 5107(b), specifies that in cases where

"there is an approximate balance of positive and negative evidence

regarding any issue material to the determination of a matter, [VA]

shall give the benefit of the doubt to the claimant.'' This language

has been interpreted to mean, essentially, that when there is a balance

of evidence for and against the existence of a fact, and proof of that

fact would support a veteran's claim, VA must consider the fact proven.

An excellent illustration of this point may be found in Gilbert v.

Derwinski, 1 Vet. App. 49 (1991), an early opinion by the CAVC in which

it first considered the "benefit of the doubt'' doctrine (then

contained in 38 U.S.C. 3007).

Perhaps the analogy most helpful to an understanding of the

application of the "benefit of the doubt'' rule was provided by

Deputy Assistant General Counsel Mullen at oral argument when he

stated that the "benefit of the doubt'' standard is similar to the

rule deeply embedded in sandlot baseball folklore that "the tie

goes to the runner.'' If the ball clearly beats the runner, he is

out and the rule has no application; if the runner clearly beats the

ball, he is safe and, again, the rule has no application; if,

however, the play is close, then the runner is called safe by

operation of the rule that "the tie goes to the runner.'' * * *

Similarly, if a fair preponderance of the evidence is against a

veteran's claim, it will be denied and the "benefit of the doubt''

rule has no application; if the veteran establishes a claim by a

fair preponderance of the evidence, the claim will be granted and,

again, the rule has no application; if, however, the play is close,

i.e., "there is an approximate balance of positive and negative

evidence,'' the veteran prevails by operation of 38 U.S.C. 3007(b).

Gilbert, 1 Vet. App. at 55-56.

Turning to the exact language of proposed Sec. 5.3(b), we propose

to define "equipoise'' in paragraph (b)(1). Although the language is

considerably simpler than current Sec. 3.102, the definition of

"equipoise'' that we propose is consistent with the longstanding

explanation of the "reasonable doubt'' doctrine in current Sec. 3.102

concerning "an approximate balance of positive and negative evidence

which does not satisfactorily prove or disprove the claim.'' This

proposed definition is that equipoise means that there is "an

approximate balance between the weight of the evidence for and the

weight of the evidence against the truth of the asserted fact, such

that it is as likely as not that the asserted fact is true.''

Paragraph (b)(2) would require VA to apply the benefit of the doubt

"[w]hen the evidence is in equipoise and the fact or issue to be

proven would support a claim.'' Paragraph (b)(2) would emphasize that

if the evidence is in equipoise and "the fact or issue to be proven

would not support a claim, the matter will not be considered proven.''

Such facts or issues must be established by a preponderance of the

evidence.

Finally, paragraph (b)(2) clarifies that the "benefit of the

doubt applies even in the absence of official records,'' as described

in current Sec. 3.102. This rule is consistent with the statutory

statement of these same principles in 38 U.S.C. 5107(b): "When there

is an approximate balance of positive and negative evidence regarding

any issue material to the determination of a matter, the Secretary

shall give the benefit of the doubt to the claimant.''

Proposed paragraph (b)(3) would define the "preponderance of the

evidence'' by stating: "A fact or issue is established by a

preponderance of evidence when the weight of the evidence in support of

that fact or issue is greater than the evidence in opposition to it.''

This definition accords with the generally accepted definition of the

term. See Black's Law Dictionary 1064 (5th Ed., 1981).

Proposed Sec. 5.3(b)(5) provides that the equipoise standard does

not govern determinations as to whether evidence is new and material

when offered to reopen a previously denied claim; instead "VA will

reopen a claim when the new and material evidence merely raises a

reasonable possibility of substantiating the claim. While the explicit

statement of this exception is new, the law underlying it is not. This

rule is consistent with Annoni v. Brown, 5 Vet. App. 463 (1993). In

Annoni, the CAVC, citing Gilbert, noted that the benefit of the doubt

rule (the equipoise standard) does not apply during the process of

gathering evidence and that it does not shift the initial burden to

submit a valid claim from the claimant to VA. Annoni, 5 Vet. App. at

467. Additionally, new and material evidence determinations do not

involve the usual weighing of "all information and lay and medical

evidence of record'' within the meaning of 38 U.S.C. 5107(b), but

instead require threshold determinations of the significance of

discrete items of evidence, which VA must presume credible and to which

VA must give full weight. See Justus v. Principi, 3 Vet. App. 510, 513

(1992). Such threshold determinations as to whether a claimant has

submitted new and material evidence are governed by the standards set

forth in 38 CFR 3.156(a).

The default standard of proof applicable to rebuttal of a

presumption is addressed in proposed Sec. 5.3©. In some cases,

Congress has specifically provided the standard of proof applicable to

rebutting a presumption. For example, Congress has imposed rather high

standards of proof in two circumstances. Section 1111 of title 38,

"Presumptions of sound condition,'' requires "clear and unmistakable

evidence'' to rebut the presumption of sound condition upon entry into

military service. Section 1154(b) of title 38 requires "clear and

convincing evidence'' to rebut a combat veteran's satisfactory evidence

of combat incurrence of a disease or injury. The question remains as to

what standard of proof applies to the rebuttal of a presumption where

Congress has not provided a specific standard.

The Court of Appeals for the Federal Circuit addressed this issue

recently in Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). The

specific issue considered by the court was determining the correct

standard of proof for rebutting the presumption in 38 U.S.C. 105(a)

that an injury or disease incurred during service was incurred in line

of duty. Section 105(a) does not specify a standard. Because of the

significance of the court's opinion in this case, we quote from it at

length.

The government acknowledges that Sec. 105(a) does not specify

the evidentiary standard necessary to rebut the presumption that a

peacetime disability was incurred in line of duty, but argues that

Congress established the general evidentiary standard for factual

determinations of veterans' cases in 38 U.S.C. 5107(b). The

government urges this court to apply Sec. 5107, and the evidentiary

standard applicable to Sec. 5107, to Sec. 105(a) in this case.

In support, the government points out that this court in Forshey

examined 38 U.S.C. 5107 for the purpose of determining the proper

evidentiary standard under Sec. 105(a), although Forshey declined

to decide whether Sec. 5107 set out a "preponderance of evidence''

or "clear and convincing'' standard. Forshey, 284 F.3d at 1351-52.

The government therefore contends that 38 U.S.C. 5107 establishes a

general evidentiary standard governing determinations by the Board

on issues material to the resolution of claims which is applicable

to Sec. 105(a) and the determination of willful misconduct for

peacetime disabilities.

The government further relies on language in other opinions by

this court as support that Sec. 5107 sets out the "preponderance

of evidence'' standard. Although acknowledging that Sec. 5107 does

not explicitly state an evidentiary standard, the government points

out that this court has found that Sec. 5107(b), "the benefit of

the doubt rule,'' does not apply `"n cases in which the Board finds

that a preponderance of the evidence is against the veteran's claim

for benefits.'' Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir.

2001). Furthermore, the government points to language by this court

quoting similar language by the Veterans Court. Forshey, 284 F.3d at

1340-41 (relying upon Gilbert v. Derwinski, 1 Vet. App. 49 (1990)).

We need not rely on the applicability of Sec. 5107(b) alone,

however, to reject Thomas's argument that "clear and convincing''

rather than "preponderance of the evidence'' is the proper

evidentiary standard here. Indeed, we find as strong or stronger

argument to be that Congress did not specifically set out that a

heightened standard was necessary to rebut the presumption of

service connection in Sec. 105(a) where the veteran's own willful

misconduct or abuse of alcohol was involved.

"The `preponderance of the evidence' formulation is the general

burden assigned in civil cases for factual matters.'' St. Paul Fire

& Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir.

1993). The Supreme Court has explained that suits over money

damages, as opposed to suits to deny liberty or life or individual

interests, appropriately fall under the less stringent "fair

preponderance of the evidence'' standard. Santosky v. Kramer, 455

U.S. 745, 755, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); see also

Gilbert, 1 Vet. App. at 53. Indeed, the normal standard in civil

suits is the "preponderance'' standard. The "clear and

convincing'' standard is "reserved to protect particularly

important interests in a limited number of civil cases'' where there

is a clear liberty interest at stake, such as commitment for mental

illness, deportation, or denaturalization. California ex rel. Cooper

v. Mitchell 'Bros. Santa Ana Theater, 454 U.S. 90, 93, 70 L. Ed. 2d

262, 102 S. Ct. 172 (1981); Addington v. Texas, 441 U.S. 418, 424,

60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) (commitment for mental

illness); Woodby v. Immigration & Naturalization Serv., 385 U.S.

276, 285, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966) (deportation);

Chaunt v. United States, 364 U.S. 350, 353, 5 L. Ed. 2d 120, 81 S.

Ct. 147 (1960) (denaturalization). The liberties at stake in those

cases are easily and clearly distinguishable from this case, where

the issue is whether an injury was incurred by a veteran in the line

of duty.

It is true that Congress has established specific, heightened

evidentiary standards for other determinations in veterans cases in

38 U.S.C. 1111 and 1154(b). In those sections, Congress provided

that certain decisions adverse to claimants must meet the heightened

thresholds of either "clear and unmistakable evidence'' or "clear

and convincing evidence.'' Notably, however, Congress did not

similarly do so for determinations under Sec. 105(a), supporting

the assertion that Congress did not intend for a higher standard to

apply here. See Grogan v. Garner, 498 U.S. 279, 286, 112 L. Ed. 2d

755, 111 S. Ct. 654 (1991) (finding that "silence is inconsistent

with the view that Congress intended to require a special,

heightened standard of proof''); Russello v. United States, 464 U.S.

16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983) (finding that where

"Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion'') (quoting United States v. Wong

Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); Cook v. Principi, 318

F.3d 1334, 1339 (Fed. Cir. 2002) ("Applying the familiar canon of

expressio unius est exclusio alterius, we conclude that Congress did

not intend to allow exceptions to the rule of finality in addition

to the two that it expressly created.''); St. Paul Fire & Marine

Ins. Co., 6 F.3d at 768-69 (Fed. Cir. 1993) ("Given that Congress

explicitly imposed a high burden of persuasion on the importer when

mounting a pre-importation challenge to a Customs ruling, and given

that subsection (b) which contains the "clear and convincing''

standard follows subsection (a) in the statute, we find no reason in

the statute or its legislative history to import the clear and

convincing standard from subsection 2639(b) to subsection

2639(a).'').

Accordingly, while Thomas argues that these other statutes

support incorporating a "clear and convincing'' standard into Sec.

105(a), we find the opposite to be correct. Sections 1111 and

1154(b) implicate distinguishable circumstances to justify a

heightened evidentiary standard. Specifically, Sec. 1111 relates to

wartime disability compensation, creating a presumption of soundness

only for veterans found "to have been in sound condition when

examined, accepted, and enrolled for service'' unless there is

"clear and unmistakable evidence'' that the injury existed before

service and was not aggravated by wartime service. Similarly, Sec.

1154 relates to injuries sustained by a "veteran who engaged in

combat with the enemy in active service'' unless service connection

of such injuries are "rebutted by clear and convincing evidence.''

We therefore find that the absence of a heightened standard in Sec.

105(a) supports a finding that Congress did not intend for such a

standard to apply where the veteran's own willful misconduct or

abuse of alcohol was involved. See Wagner

v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004).

Thus, we find that preponderance of the evidence is the proper evidentiary

standard necessary to rebut a Sec. 105(a) presumption and determine

that a peacetime disability was the result of willful misconduct.

Accordingly, the Veterans Court properly affirmed the Board's

application of a preponderance of the evidence standard to rebut the

Sec. 105(a) presumption and the Board's determination that Thomas

did not incur his injuries in the line of duty. Thomas, 423 F.3d at 1282-84 (footnotes omitted).

Although the court was specifically discussing the standard

applicable to rebuttal of the presumption in 38 U.S.C. 105(a), the

court's analysis clearly applies to the rebuttal of any presumption in

those cases where Congress has not provided a specific standard.

Therefore, Sec. 5.3© would adopt the preponderance standard in such

cases.

VA does not consider all evidence of equal weight and does not

merely count pieces of evidence for and against an issue.

That is, in weighing the evidence, VA is as much or more concerned with the quality

of evidence as it is with its quantity.

The CAVC stated in Gilbert that a determination under

38 U.S.C. 5107(b) (then 3007(b)) is ``* * * more

qualitative than quantitative; it is one not capable of measurement

with mathematical precision and certitude. Equal weight is not accorded

to each piece of material contained in a record; every item of evidence

does not have the same probative value.'' Judgments must be made * *

*.'' Gilbert, 1 Vet. App. at 57. While this remark was made in the

context of an exposition of the equipoise standard, we believe it is

also applicable to the evaluation of evidence generally, as we propose

to provide in Sec. 5.3(d).

We propose not to include the fifth sentence of current Sec.

3.102, which states with regard to reasonable doubt that "t is not

a means of reconciling actual conflict or a contradiction in the

evidence.'' The reconciliation of actual conflict between evenly

balanced "positive'' and "negative'' evidence in a manner that favors

the claimant is precisely the function of the equipoise standard. We

therefore propose not to include this sentence because retaining it

would be misleading.

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Wings,

I'm taking a while to decipher all this.

carlie

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Me too Carlie! A LONG time ago, here on the board - and before Well Grounded Claims was overturned by the VCAA - - and before Hayre was overturned by deciding Cook, Alex remarked that the VA did not hold very high "standards of proof". I asked then, and wonder now, if it wouldn't just be simpler to incorporate the Federal Rules of Evidence in deciding our claims?! Clearly, the the VA has raised the bar on "standards of proof" on some issues!

P.S. I hope Hoppy sees this post!

~Wings

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