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."

[free_spirit_etc]

"The BVA keeps their awards pretty concise..short and sweet."

Yes. I have started to notice if I have to scroll down very far to see the result, it won't be good news.

I guess I will look forward to getting the benefit of the doubt then....

But in some of those cases it just seems like the evidence is SO strong... and then they throw in the equipoise.

[Philip Rogers]

The BVA is part of the VA so, of course, they aren't going to say anything bad, about the VA. jmo

pr

[free_spirit_etc]

71M10,

I hope they grant you equipoise.

[free_spirit_etc]

Hmmm - So something as simple as saying that the preponderance of the evidence is in support of a veteran's claim is saying something bad about the VA.

Kind of makes you wonder....

The BVA is part of the VA so, of course, they aren't going to say anything bad, about the VA. jmo

pr

[free_spirit_etc]

I ran across a decision that didn't use equipoise or the benefit of the doubt.

http://www.va.gov/vetapp13/Files2/1313247.txt

"Acknowledgement is given to the fact that diagnostic tests completed during service in March 1992 and July 2005 and post-service in January 2008 and May 2010 showed right AC joint degenerative arthritis while those from the March 2006 VA QTC medical examination showed no right AC joint arthritis. This arguably signifies that the Veteran had arthritis during service, no longer had arthritis near the conclusion of his service, and then had arthritis again post-service as a result of some intercurrent cause. However, this scenario is quite unlikely. All diagnostic tests are in agreement with the exception of the March 2006 diagnostic tests. Discussed above is that there is no indication, whether medical or lay, of an intercurrent cause. The most plausible explanation therefore is that the March 2006 diagnostic tests are inaccurate. In other words, the Veteran most likely has had arthritis since March 1992.
Service connection for a right shoulder disability including arthritis, in sum, is established outright without the need to invoke the benefit of the doubt rule. This determination renders it unnecessary to proceed by discussing private Dr. T.F.'s August 2011 letter containing the opinion that the Veteran has several physical conditions, to include those of the right shoulder, which "may be a result of his intensive military training career." Discussion of whether service connection for a right shoulder disability including arthritis may be presumed additionally is unnecessary. Of note, however, regarding this alternative theory of entitlement is that the January 2008 VA diagnostic tests showing arthritis were taken just a few months after the Veteran's first post-service year. The aforementioned determination that the Veteran most likely has had arthritis since 1992, and thus throughout the entirety of his first post-service year, is also noted."

[Berta]

An interesting case. In part it states:

“The benefit of the doubt shall be given to the Veteran in this regard, however, in light of VA's fault. “
It regarded the fact that
“although the Veteran's original claims file has been lost or destroyed in VA's possession{ etc, the VA had an enhanced Duty to Assist.”

“The Board has a heightened obligation to explain and to consider the benefit of the doubt when, as here, records presumably or actually are lost or destroyed while in the possession of the government. Ussery v. Brown, 8 Vet. App. 64 (1995); Cuevas v. Principi, 3 Vet. App. 542 (1992); Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the standard for establishing service connection is not lowered. Russo v. Brown, 9 Vet. App. 46 (1996).



"Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In this case, the Board finds the preponderance of the evidence supports service connection for a right shoulder disability. All necessary requirements for establishing entitlement to the benefit are met.”

The BVA found a preponderance of evidence and there was no need for BOD.AS far as the granted claim goes...the rest of the claim was on remand and might well e decided with BOD.

What gets me is when a claimant has a preponderance of evidence and the VA invokes Equipoise standards. They did that in my BVA AO claim, but didn't in my Section 1151 DIC claim.

I think that was because my FTCA evidence from the VA General Counsel was assessment and opinions based on a preponderance of medical evidence I had sent to the OGC, that was also probative to my 1151 DIC award.

I dont know if VA ever invokes BOD in 1151 claims because they must proof medical negligence without any doubt whatsoever.

VA didnt invoke BOD in my SMC 1151 CUE claim either.

The evidence was preponderant.