Benefit Of The Doubt

[add55p]

Is the "Benefit of The Doubt" rule ever applied at the VA Regional Office level.

From what I have read, the rule is/will more likely be applied at the Board of Veterans Appeals level and higher.

[evandc]

Sorry, don't know, but mine was at the BVA back in 1999.

[deanbrt]

Add55, I think you are correct. You are more likely to have it applied at BVA.

[Berta]

VA applies the Benefit of Doubt rule to hundreds of claims daily at the regional level ,as well as at the BVA.

It is a basic tenet of VA case law.

Many of us here have had awards under Benefit of doubt from both the regional and the BVA level.

Benefit of doubt comes from the legal concept of Relative Equipoise- meaning if the evidence weighs equally for and against the claim, then BOD kicks in.

Example-the veteran has a strong IMO from a cardio doctor,that fully complies with the IMO criteria and the VA C & P denies the cardio claim ,which was done by a PA, and was speculative.

A RO Rater who hopefully can read ,would weigh these two opinions and award the claim under BOD.

I didnt get my IMOs weighed properly against VA BS until one of my claims went to the BVA.

However if the ROs were not making any awards under BOD at all, they could not justify their existence.

For 6 years I could not get my RO to read my evidence.

Of course the BVA read it all and stated in part :

“Dr. CRB's opinion was based on an examination of the

Veteran's records and an accurate history. This is at least

as probative as the November 2005 VA examiner's conclusions.

Such favorable competent opinion evidence is sufficient to at

least place the evidence in relative equipoise on the

question of whether the Veteran had diabetes, and whether the

diabetes contributed substantially or materially to the

cardiovascular disorders that more immediately caused the

Veteran's death.

Based on this evidence, the Board finds that the weight of

the evidence is in relative equipoise exists in this case.

Resolving reasonable doubt in the appellant's favor, the

Board finds that the criteria for service connection for the

cause of the Veteran's death have been met, and the service

connection for the cause of the Veteran's death is warranted.

38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Service connection for the cause of the Veteran's death is

granted.”

My husband had never been diagnosed or treated by VA for diabetes. This was,in essense , an adsditional claim of 1151 malpractice ,from my 1995 claim, but I had to carefully word it so VA could not deny because they already had awarded me 1151.

I succeeded because not only was it malpractice but it involved an AO disability that the original 1151 and FTCA awards did not cover.

I was disappointed at this BVA statement:

“Such favorable competent opinion evidence is sufficient to at

least place the evidence in relative equipoise on the

question of whether the Veteran had diabetes, and whether the

diabetes contributed substantially or materially to the

cardiovascular disorders that more immediately caused the

Veteran's death. “

I wanted the BVA to say I had supplied a s--t load of evidence,ooops

I mean a Preponderance of evidence.

Preponderance was my goal.

Nevertheless ,they awarded under reasonable doubt,which is the Benefit of Doubt regulation.

The only problem with the BOD regs is that VA owns the scale.

Every inaccurate statement in a decision MUST be challenged and these days there is nothing better ,in many of not most cases, than getting am IMO from a real doctor to combat a negative VA C & P exam.

The IMO criteria is in our IMO forum here.

Edited May 14, 2012 by Berta

[carlie]

Is the "Benefit of The Doubt" rule ever applied at the VA Regional Office level.

From what I have read, the rule is/will more likely be applied at the Board of Veterans Appeals level and higher.

Sure the BOD is applied at the VARO level.

BUT -

If the evidence of record is acknowledged to be in relative equipoise and

the BOD is not correctly considered and applied at the VARO level,

then by all means HOPEFULLY the BVA or Court will acknowledge and

apply it in favor of the claimant.

JMHO

[john999]

I have benefited from BOD one time in a pretty big way. I was shocked because I was not looking for BOD at all. 99% of the time BOD was against me except for one time. Always appeal low ball ratings and get more testing. Just the weight of evidence can put you into BOD land.