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

[BoonDoc]

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

[tdak]

Boondoc,

I hope it helps you out!! We can all use an edge now and again. I neither agree or disagree if the "benefit of doubt" is actually in our favor. After all isn't it "innocent UNTIL proven guilty" and in some cases it sure doesn't seen true either.

In any case, yes extra ammo means a few more shots for you!!! Go get um!!

Good luck,

Tamara :D

[john999]

BoonDoc

I would do as Peter has suggested. If you left your job on good terms get them to do a letter to explain better why you left and put it on your disability. Responding to the VA's objections directly is the way to win a claim. The VA is just treading water on this denial to put you off and if you can directly rebutt them it helps in a big way. I got denied for IU even though I was 70% SC because the VA tried to put it off on my NSC injuries. I went to an IMO and directly rebutted that assertion and got IU. They were just blowing smoke at me like you with that BS denial. You are going to win your claim eventually and this might make it go faster.

[BoonDoc]

BoonDoc

I would do as Peter has suggested. If you left your job on good terms get them to do a letter to explain better why you left and put it on your disability. Responding to the VA's objections directly is the way to win a claim. The VA is just treading water on this denial to put you off and if you can directly rebutt them it helps in a big way. I got denied for IU even though I was 70% SC because the VA tried to put it off on my NSC injuries. I went to an IMO and directly rebutted that assertion and got IU. They were just blowing smoke at me like you with that BS denial. You are going to win your claim eventually and this might make it go faster.

John,

I had the VA use my other disabilities against me for years too. I had to ask them to focus on my SC disability that made me unable to work, and not my other medical problems. For some reason my layer who did my SSD calim didn't use migraines in that claim...ended up hurting me, but at the time I was so happy to get enough mony to pay for just the basics that I overlooked it.

I do think that I will eventually win this claim, because I meet all of the requirements of the kaw for IU, but like you say they are blowing smoke...I've open another claim for secondary depression/anxiety and think that I should have added that a long time ago, but my SO never told me...good thing that I found this site...I still haven't heard from my DAV SR about the denial letter that I have alraedy mailed the NOD for!

Now if they don't care enough to return my calls, or make contact when the VA sends out denials (if VA did send it to DAV,AL?) what do I need them for?

I've gotten more acomplished by myself using this site than all of the years of going through a service organisation and letting them do all of the work. They really don't care, as long as they have a job to go to , they must see us as just a number ..like the ..VA.

I quit after the first three denials that I claimed, and didn't appeal, so I think that the VA looked at that and thought that I would quit again, this time I let them know that I plan to appeal any decision not in my favor.

I cost the company some money, and a "black eye" from a lost file from when I likved in one of the apartments in voc rehab. and I don't think I'm their favorite person, but I may call anyway, or have someone neutral call. I do have a former tenant who said that she would write a statement telling the VA what happened, don't know how much that would help, but maybe add up to tip the "scales" in my favor..

Boondoc

[Pete53]

Don't forget that you can explain it also. My suggestion to get employer letter clarifying what was said is just another shot at getting something to VA to refute their prior decision.

Another thing that Vets used to try is to see a Social Worker and have them do an assessment on your work History and if you are employable or not.

Remember there is more than one way to skin a cat and the VA has showed what they are using to turn you down.

I agree with you and John that you will win the claim.

Good Luck

[BoonDoc]

Don't forget that you can explain it also. My suggestion to get employer letter clarifying what was said is just another shot at getting something to VA to refute their prior decision.

Another thing that Vets used to try is to see a Social Worker and have them do an assessment on your work History and if you are employable or not.

Remember there is more than one way to skin a cat and the VA has showed what they are using to turn you down.

I agree with you and John that you will win the claim.

Good Luck

Thanks for the good info. Pete. I hadn't thought of going to a social worker before. I haven't had any kind of social and industrial survey before, so maybe that is an angle that I can use to help. I wont' get into the other medical problems that I have, and stay focused on what SC disabilities make me unable to work. I've thought about applying for voc rehab again, but I think I'm past the time limit...I read somewhere that you 10 years after being rated SC to apply for those benefits, does anyone know if that's the case?

I sent in my tax returns proving that my wife took over, and I didn't move as reported. and sent in letters from my mom and wife who filled in for me several times a week (it was just 2 hours a day waiting for the phone to ring, or somebody come in to hand a application to) and have a former tenant who said that she would give me a statement saying that I had to quit because of vascular headaches, but I am going to have to track her down it seems. I went ahead and sent in the NOD so I could get some rest, and clean up the mess that I made while researching and writing it! I couldn't sleep but an hour or two for the past week it strested me out so much....I think the VA counts on that causing us to just give up and go away, but not anymore!!

Thanks again for the advise,

Boondoc

[BoonDoc]

Boondoc,

I hope it helps you out!! We can all use an edge now and again. I neither agree or disagree if the "benefit of doubt" is actually in our favor. After all isn't it "innocent UNTIL proven guilty" and in some cases it sure doesn't seen true either.

In any case, yes extra ammo means a few more shots for you!!! Go get um!!

Good luck,

Tamara :D

Thank you for the encouragement! Sometimes when dealing with "Golieth" it seems overwhelming to the little guy, so a little encouragement goes a long way!

Aren't you the one who asked about Chai' (SP?) malformation?. If so I have a daughter-in-law who has it. She has fibromyalgia too. Do you have FMS too?

Thanks again,

Boondoc