Equipoise

[free_spirit_etc]

What is somewhat frustrating in reading a lot of BVA cases is that if even if they grant the claim - they always throw in equipoise and benefit of the doubt.

I swear, someone can have something diagnosed in service, have opinions from both their private doctors and VA examiners that support the claim, and no evidence against the claim - and the Board will still say they are giving the veteran the "benefit of the doubt" because the claim is in "equipoise."

[Carl the Engineer]

I'm confused. If the claim is at a "Board", then it was denied or not ajudicated to the satisfaction of the claiment. So there must have been either evidence or doubt by the original rater, etc.

I think in these cases, equipoise is the balance between evidence "for or against" the claim.

I dont see a claim not being approved if all of the evidence supported the claiment and there was no dought or evidence against.

But then again, "equipoise" is a pretty big word for me and I can't or wouldn't use it in a sentence. I had to look it up.

Fun with words.

Hamslice

[carlie]

relative equipoise is a beautiful thing for VBA claimants.

once it's been established the BOD is in the claimant's interest.

[free_spirit_etc]

I'm confused. If the claim is at a "Board", then it was denied or not ajudicated to the satisfaction of the claiment. So there must have been either evidence or doubt by the original rater, etc.

Maybe in a perfect world. But it doesn't always work out that way. You must have a pretty good RO to stay that optimistic! Here is an example from my RO. VA Examiner gives diagnosis of Chronic ethmoid sinusitis with Agger Cells with obstruction, and points out my husband "underwent an x-ray of his sinuses on September 3, 1982 and the xray was shown ethmoid and maxillary inflammatory changes of the chronic type."

RO states "A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability associated with sinusitis is not shown by service medical records. "

??? He had many bouts of sinusitis in service. It was diagnosed as chronic by an x-ray showing changes of the chronic type in 1982. The VA examiner pointed that out. The RO twisted it and acted like he just had a sinus infection once.

So - no - I am not convinced that there is always evidence against a claim when a claim is denied, or that the RO had a doubt. There are many times the RO knows dang good and well a claim should be granted, but they twist the evidence and deny.

I think in these cases, equipoise is the balance between evidence "for or against" the claim.

That would be equipoise, yes. But many times the claim -- at least by the time it is finished at the BVA is not in equipoise. The evidence for granting the claim is much stronger than the evidence against granting the claim. But you don't see decisions saying "The evidence for granting the claim is much stronger than the evidence against the claim." They will most generally say it is in equipoise, and resolving all doubt in the veteran's favor, etc.

Granted - there are claims were there is a balance. But there can't be that many of them. Most of the claim I see granted always use the "benefit of the doubt."

I dont see a claim not being approved if all of the evidence supported the claiment and there was no dought or evidence against.

That is true. They will grant it (and say it is in equipoise, and they are resolving all doubt in favor of the veteran...)

But then again, "equipoise" is a pretty big word for me and I can't or wouldn't use it in a sentence. I had to look it up.

Fun with words.

Hamslice

[carlie]

As long as the issue gets granted - whether it by way of overwhelming evidence or BOD,

to me, it irrelevant.

To me - all that matters are the words granted SC'd.

[71M10]

I understand what you are saying Free, but I think in general they use the equipose language because they will not unequivocally state the rater at the RO was wrong and can't read or evaluate the evidence correctly.

I am so ready to get to the BVA, I am really going to find it interesting how they can resolve the rater stating, "I do not have kyphoscoliosis", when the VA has it listed on my problems list and I have over 20 visits with manual medicine trying to minimize the problems it is causing, I have multiple VA decisions stating my SC back injury has caused kyphosis and scoliosis in the thoracic spine. In the initial decision the rater states I cannot have any restictive lung disease/conditions, because the VA C&P doctor stated "I was not exposed to Asbestos"(someone needs to go back to medical school). In the SOC without any further examination, they grant SC for Sleep Apnea and state that it is a restrictive lung disease and was granted due to the medical records and medical opinion I had submitted 5 years before the initial decision. They then go on to state I have no other restrictive lung disease/conditions and if I did, they could not be granted because of pyramiding. I guess they never heard of the rule for 0% ratings and never read the rule about granting the higher of the two ratings in the instance of two disabilities in the same system.

If they want to call it equipose at the BVA and grant on BOD, I am fine with that!

[Berta]

I agree but:

the BVA made this statement in my 2009 award:

“3.  The weight of the competent evidence is at least in 
relative equipoise on the questions of whether the Veteran 
had diabetes during his lifetime that was caused by Agent 
Orange exposure during his Vietnam service, and whether that 
diabetes caused or contributed substantially or materially in 
causing the Veteran's death.”

The "is at least in relative equipoise “ part was comforting to me but I really hoped the BVA
 would say that 'the widow had 
 provided an absolute  sh-t load of compelling evidence, far beyond Relative Equipoise.'

And I wish they had mentioned all of my evidence (it could have helped others) but 
they don't do that...The BVA keeps their awards pretty concise..short and sweet.