tdiu "the Benefit Of The Doubt Belongs To The Claimant"

[BoonDoc 0]

I was reading some "food for thought" that Berta suggested for me in my claim denied for TDIU. My last employer submitted 2 responses from the Form 21-4192 that I had completed. This made it look like I had two different jobs at the same time, and worked longer than I did without a break in employment like I had.

They listed the apartments that I managed, and the parent company that owned them that I really didn't have anything to do with.

Well, I am proud to my "smart...just like a woman" wife saved all of our tax records since we were married, so I have proof of what I'm saying. I also have statements from others as to this.

Now to the "food for thought" in the M2-1, part 3, change 129, Transmittal that I have copied and highlighted states:

a. The reasonable doubt rule is found at 38 CFR 3.102. Every person involved in the adjudication of compensation and pension claims must be thoughly familiar with this regulation.

b. The benefit of the doubt belongs to the claiment, if there is a balance of evidence supporting and against factual issue, VA must make a factual determination in favor of the claimant. In Gilbert v Dervinski, no. 89-53 of the Court of Veterans Appeals (now CAVC).

If the evidence is approxitmately balanced, resolve doubt in favor of the claiment.

I know that they see the evidence a little different than I have, but if your case is hanging on some issue like mine, my word against my former employer, who I can prove bias, since I caused them a repremand and a hefty fine from HUD because my old tenant record from before I took over the management of the apartments caused a "black eye" for the company after we were long gone trying to forget the whole experience!

Anyway, thanks to Berta, I have a little more ammo to help my claim.

Oh yeah, .... Thanks Berta! :D

Boondoc

[Testvet 2]

do not hang your hopes on the "benefit of the doubt rule" it seems to get lost in the files most times...

[john999 975]

TestVet

You know when the VA uses the benefit of doubt rule to evaluate evidence they have their thumb on the scale. One ignorant resident MD who is not dry behind the ears is better than a board certified private doctor if the resident helps deny a claim. I had three IMO's to get my P&T rating against one resident MD and the VA still dragged their heels.

[BoonDoc 0]

do not hang your hopes on the "benefit of the doubt rule" it seems to get lost in the files most times...

Looks like some other vets are thinking/talking about "Benefit of the doubt" law too.

I would't have posted mine if I had seen it posted here before I posted.

Not hanging my hopes on anything but the evidence to support my claim why the VA denial is incorrect.

This is just another piece of "ammo" like I said....

I'm sending a copy of it with my NOD today, so hopefully it won't get lost, if it does my congressmans Veterans Liason has it too.

I know that getting your MC, SEN involved can slow things down, but without SEN. David Pryor I would never had gotten to where I am now.

I already said the VA sees things their way no matter what we say.

Boondoc

Edited September 20, 2006 by BoonDoc

[Pete53 0]

Benefit of doubt is to reslove differences in Medical Opinions and not facts. The thing is you have proof that your employer did not fill out form correctly. If it were me and I still had some kind of contact at the Company I would ask them to furnish a short letter explaining exactly what you did.

Good Luck

[BoonDoc 0]

Sorry for a double post...I :D

Edited September 21, 2006 by BoonDoc

[BoonDoc 0]

Benefit of doubt is to reslove differences in Medical Opinions and not facts. The thing is you have proof that your employer did not fill out form correctly. If it were me and I still had some kind of contact at the Company I would ask them to furnish a short letter explaining exactly what you did.

Good Luck

The example listed in the M2-1, part 3, change 129 doesn't use a medical opinion, it uses a MVA motor vehicle accident, with the slcik road, and speeding veteran having an accident....the vet was ticketed for speeding, but the wet roads give enough of a "balance in the evidence" to use the "benefit of the doubt"

http://www.warms.vba.va.gov/admin21/m21_1/part3/chg129.doc

Like I have said before that I don't think that this one law will be the one straw that broke the proverbial camels back, just another piece of ammo to send in with the NOD.