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"the Benefit Of The Doubt Belongs To The Claimant"

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BoonDoc

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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

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Benefit of doubt means -if the evidence is equally for and against the claim the veteran should succeed.

Equal is a value that the VA seems to determine to often be in their favor against the claim.

If there is a Preponderance of evidence for the claim-the vet succeeds-

a preponderance against and then VA wins.

A vet should not only try to get evidence equal to theirs(VAs) in their support for Benefit of doubt but should send them a whole s--t load of any other evidence too if they can.

Hate to be so blunt but-say a vet has 2 medical treatises and an IMo as well as a layperson's statement , and an inservice buddy's statement as to their disability and it's nexus to service.

The VA would have to be pretty good to combat all that.That is a preponderance of evidence.

I found one widow's claim in early 2006 decisions at the BVA where the widow had supplied a preponderance of evidence and won DIC compared to 20 or more other veteran's claims that contained ,per the BVA, a preponderance of evidence against the claim and these claims were denied.

It takes so long for a vet to even get a denial and then wait at least a year here in NY for the VA to respond to a NOD, that the vet really has significant time to access anything they can to support their claim.And the internet has made that easy.

Edited by Berta
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I won a 1999 BVA Decision that was Benefit of Doubt. After pages of BS & 62 months the BVA, gave me the all things being equal line. Case decided in favor of Veteran. That's the first I time I really understood "Benefit of Doubt" as it could relate to me & my claim. All I wanted was to go from 30% to 50% for PTSD. My case was an outstanding example of how not to handle a claim. I cannot always answer fellow vets questions, but I can tell them what not to do. I had 62 months learning all what not to do.

Don

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Berta,

That's how I understood it. I have the man who took over the grounds keeping, who had a annual contract but as soon as Fall came they fired him so they wouldn't have to pay during the Winter months, athat said that he remember when I had to quit, and he took over the lawn mowing, etc. and worked for my wife. I am going over to his house week after next (he's leaving town for a week) and get his statement to support what I have been telling. He told me when he was fired "I don't see how you worked for those people" only he wasn't as nnice about it!

I have another lady that was a tenant when I had to quit who said that she remembers me having to quit, and that it was from severe migraines.

My parents, and wife gave me statements of how the filled in for me, and what they have observed when I have a migraine.

I proved that the company submitted 2 21-4192 (I think it's another form, but in response to what I submitted on the 21-4192) to make it look I was working 2 jobs, and they didn't show the break in employment that I had...I had what they thought was a CVA or TIA, but my C&P doctor said that he thought it was due to vascular headaches, and that funny stuff can happen, funny for whom? And then they rehired me, so they really thought about how to make it look bad for me. My boss's husband is a Circuit Court Judge, or was, so they knew what to do.

I am going to the VA Monday. I'm making a list so I stay focused on my migraines, depression, anxiety, and other medical problems from my SC vascular headaches.

I'm going to go to a private social worker, and get the series of tests to prove my employability (my neurologist told me even if you never work again, you must get out of your house-now getting that on paper is a different story, unless he wrote it in the progress notes, and I doubt it.

I found out the VA outpatient clinic where I go has a new shrink...guess who's going to be going to start therapy?

I am going to use all of the real medical health problems that have come with having head trauma, and vascular headaches. It may take some time, but if I don't work on it, I will never get it!

Boondoc

I also sent in my tax returns to prove that my wife took my place, and I didn't move like they stated...and explained what happened about records of lost time, I worked by my self in the office, only talking on the phone every now and then to my boss. She only came down every 2-4 months to get a large sum of cash from the pay laundry. As long as the apartments were rented they didn't care who was answering the phones.

I want blunt info, that way I can base what I am trying to do to defend my claim, on facts. I believe that I have equal evidence to prove that what they have reported is erroronious, and that the benefit of the doubt should make me the "runner" Now with that said, I know that the VA is capable of anything. I know that they can see black when you say white, etc. so I have no delusions (from my claim anyway :D ) and am preparing to ask for a formal hearing at the local RO and hire an attorney if it comes to it.

Ther was a lawer here in Arkansas who had a website that I found a few years back, but at that time I wasn't at the appeal level yet. Maybe I can find him later.

Edited by BoonDoc
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I won a 1999 BVA Decision that was Benefit of Doubt. After pages of BS & 62 months the BVA, gave me the all things being equal line. Case decided in favor of Veteran. That's the first I time I really understood "Benefit of Doubt" as it could relate to me & my claim. All I wanted was to go from 30% to 50% for PTSD. My case was an outstanding example of how not to handle a claim. I cannot always answer fellow vets questions, but I can tell them what not to do. I had 62 months learning all what not to do.

Don

I'm glad that you won your claim! Also good to hear that the benefit of the doubt worked for you.

I am just pulling anything out of the law, regs, fast letters, proposed law, etc. to try to swing the balence my way...it comes down to the old boss's word to mine, and5 other people's word, and I know that the VA has a way of not seeing the obvious, or at least obvious to the claiment. I will just keep on going if they continue to deny. I quit 3 times before, so maybe they think I'll quit this time too. I let them know in my NOD that I would appeal this decision for as long as I could legally.

Boondoc

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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

Boondoc,

Yes that's me with the Chiari. I do have Fibromyalgia along with Chronic Fatigue Syndrome, and about 20 other problems from the Chiari. It sux some days, but I'm alive and thats what counts. If you want any info check out my other post I made in my Chiari question, there is a great link for her. If you have any questions please ask me. I try to log in everyday.

I have 1 saying and 2 rules that help me a lot.

Saying from my sister: Put on your big girl panties and deal with it!! (make appropriate change for guy)

Rule 1: Don't sweat the samll stuff!!!

Rule 2: EVERYTHING is small stuff!!!!

I have as long as life allows me to have, so I try to make use of everyday.

Tamara :D

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Boondoc,

Yes that's me with the Chiari. I do have Fibromyalgia along with Chronic Fatigue Syndrome, and about 20 other problems from the Chiari. It sux some days, but I'm alive and thats what counts. If you want any info check out my other post I made in my Chiari question, there is a great link for her. If you have any questions please ask me. I try to log in everyday.

I have 1 saying and 2 rules that help me a lot.

Saying from my sister: Put on your big girl panties and deal with it!! (make appropriate change for guy)

Rule 1: Don't sweat the samll stuff!!!

Rule 2: EVERYTHING is small stuff!!!!

I have as long as life allows me to have, so I try to make use of everyday.

Tamara :D

The reverse gear was out on my first old truck...it taught me to only go forward.

I try not to get my "panties" in a wad, but sometimes the VA gets me all"wadded" up so tight I can't see forward very well!!! :D

Boondoc

Edited by BoonDoc
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