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Preponderance Of The Evidence 38 C.f. R. & 3.102


Josephine
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  • HadIt.com Elder

The application of, "as likely as not" itself is not speculation. The " as likely as not" standard equates to the statutory standard of the " approximate balance of positive and negative evidence", accepted by VA. to grant service connection. See 38 U.S.C.A. & 5107 (:D; C.F. R. & 3.102.43.

The preponderance of the evidence supports granting the benefits sought on appeal. At the very least, an approximate balance of a claim, is present to cause a reasonable doubt to exist. Therefore, I point to 38 C.F.R. & 3.102 which provides that when a reasonable doubt exist " regarding service original, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.".

If this is true and you go to the BVA and are remanded to The Appeals Management Center and you have two C&P's

1. More likely than not service was the origin of her anxiety by Va. PhD. Psychologist.

2. Nothing in service bothered her by a VA Psychiatrist.

3. Buddy letter by witness to all events mentioned in my claim

4. 3 letters by my pastor before and after service, that I did not have anxiety before service.

5. Letter by my Board Certified Internist of 29 years, that in his opinion with reading my military records and all private medical records from 1965 to date, my anxiety began in service

6. Letter from a friend that has known me since I was 8 years of age. The before and after service again with no signs of nervousness or anxiety until after service and no medication, until after service.

7. Letter by my treating physician in service to explain that his wording of " vascular versus tension headaches, was a concept and that the cafergot was for a headache and that the librium was for my nerves.

8. Clinical report by Military Psychiatrist Jones for mild nervesness, headaches and irrability.

9. Clinical by Board Psychiatrist recommending an early discharge due to same.

10. Letter by husband, and two daughters.

Where does the preponderance of the evidence lie?

Why would The Management Center say to me on the telephone, it appears that I will be going for another C&P examination?

Does the Preponderance of the evidence deal with the Credentials of the two have a Greater Baring on the Decision?

Actually the PHD Psychologist was a great deal more on the ball than ever the Psychiatrist.

Josephine

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  • HadIt.com Elder

Josephine

I think you are getting another shot at proving your condition is service connectedd via the C&P. If you have any more evidence like an IMO give it to the C&P doctor(not the original but a copy). Bring your medications with you to show what you are taking. Tell the C&P doctor about any side effects of the medications. The new C&P exam is going to be the quickest route to service connection.

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  • HadIt.com Elder
Josephine

I think you are getting another shot at proving your condition is service connectedd via the C&P. If you have any more evidence like an IMO give it to the C&P doctor(not the original but a copy). Bring your medications with you to show what you are taking. Tell the C&P doctor about any side effects of the medications. The new C&P exam is going to be the quickest route to service connection.

Thanks John 999,

Josephine

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  • HadIt.com Elder

Preponderance of evidence means that the evidence is egual to or is more than 51% for one one side or another.

Preponderance of evidence isn't needed to grant a veteran's claim for disability, it only must be in an equal balance, equipoise, or 50% to warrant service-connection. However, a preponderance of evidence supporting a denial is needed to deny a claim.

If your doctors opinions were without a rational, such as referencing credible medical litrature, then those opinions probably didn't carry very much, if any, weight towards your claim. That's probably why the BVA remanded it to the AMC for another C&P exam, probably to try and substantiate your doctors opinions and to put the evidence in equipoise.

Vike 17

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  • HadIt.com Elder

Vike 17,

The PHD Psychologist, to whom I saw first made perfect sense as to his opinion and his reasoning.

It was the Psychistrist that made no sense. To say that nothing bothered me in service made no sense, when in the line before that , she stated, she took Librium and Caffergot.

I just can't figure out why the need for the second examination within 5 months of the first C&P with no one adjudicating the exam.

The Psychiatrist took 42 years of my private medical records and twisted and turned them and didn't use any records to back up a thing that she was saying.

I feel that the Management Center is sending me for another examination to get rid of this open claim of 1978.

How does filing for Anxiety with Depression and Headaches, become an Acquired Psychiatric Disorder?

The ruling from the R.O stated, we place our weight with the Psychatrist, becaue they are Psychaitrist, with no reasoning behind that either, except they thought that a Psychaitrist was more crediable then a PHD Psycholgist.

Thanks for I am trying to reason in my mind what this system is all about.

Josephine

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  • HadIt.com Elder

It depends where you aquired the anxiety and depression. If you aquired it in service the VA is going to have to pay. What you want to show is that you were fine before service and that "in service" you aquired an anxiety condition. If they were giving you librium something was wrong besides having a bad day. They were giving me stelazine and denied I had a psychiatric problem. They had to eat that later on but it hurt at the time. I never got my psychiatric records from my last duty station. They probably burned them. I never got a discharge physical.

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  • HadIt.com Elder

Hi guys,

Here are two letters that my private physicans has written for me. I know that he is not a psychaitrist, but after 29 years, I will not go the other way.

I saw a Psychaitrist in 1977 and he was terrible.

The first letter is written concerning those two examinations and his findings of the two.

The second letter is another letter the BVA requested. I first I will have to locate in my tons of papers. My psychiatric records didn't show up until I located them myself in 2004. I received a dishcharge code 460 - Emotional Instability.

Dr. BCC has written to letter only to clarify his treatment records of me in service.

Did my private physician say enough for Nexus??

Thanks Bunches!!!

Josephine

Letter 2

To Whom it May Concern:

RE:

This letter is written as an addendum to a previously written letter dated 4/ 5/2006.

It is written after I reviewed records from a compensation and pension examination by Dr. M. I have also reviewed another compensation and pension examination from 4/15/2006 by Dr. L.

I have treated this patient since 1979, Moreover, I have had multiple family contacts with her mother and her sister through the years.

It is considered my medical opinion that she does not have a personality disorder.

Some of the facts of the later consultation from Dr. L are patently incorrect.

True, I am not a psychiatrist, but I am a board certified physician in internal medicine. Her primary diagnosis is that of a chronic anxiety disorder.

Sincerely Yours

Dr. P

Letter 3

April 28, 2006

Re:

To Whom It May Concern:

The above is currently undergoing an appeal process with The Board of Veterans Affairs.

This letter is written as an addendum to previously written letters dated 4/5/2004 and 1/23/2006 in regard to her current appeal with the Department of Veterans Affairs.

The basis for my previous noted diagnosis of this veteran was based on knowledge of personal interaction, history taking and physical exams going back to 1979. I am aware of the fact by reviewing all of the military records of this veteran that the patient was treated with Librium and Caffergot while in the military service, 1964, presumptively for treatment of anxiety and associated migraine headaches, by Dr. BCC, followed by two Psychiatric consultations thus leading to her early discharge.

This veteran has been on anti-anxiety medication from 1967 to date making it plausible that I am correct. I have maintained all of the veterans civilian records from 1965 to date and all of her military records todate.

As I have stated previously, It is my considered medical opinion that her subsequent problems with anxiety/depression have been of a significant magnitude to adversely affect her overall health and result in disability.

I have no specific training in Psychiatry but I have the usual level of expertise that would be expected in an internist, board certified in 1976 and actively practicing internal medicine since that time.

I graduated from the University of Florida Medical School in 1973 was board certified in internal medicine in 1976 and have remained in active practice since that time.

Sincerely

Dr. P

Health Grades

What is a Board Certified Internist?

A Physician who provides long-term comprehensive care in the office and at the hospital, managing both common illnesses and complex problems for adolescents, adults and the elderly. Trained in disease prevention, wellness, substance abuse, mental health, and treatment of common problems of the eyes, ears, skin, nervous systems and reproductive organs

Edited by Josephine
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This thread is over 365 days old and has been closed.

Please post your question as a New Topic by clicking this link and choosing which forum to post in.

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If this is your first time posting. Take a moment and read our Guidelines. It will inform you of what is and isn't acceptable and tips on getting your questions answered. 

 

Remember, everyone who comes here is a volunteer. At one point, they went to the forums looking for information. They liked it here and decided to stay and help other veterans. They share their personal experience, providing links to the law and reference materials and support because working on your claim can be exhausting and beyond frustrating. 

 

This thread may still provide value to you and is worth at least skimming through the responses to see if any of them answer your question. Knowledge Is Power, and there is a lot of knowledge in older threads.

 

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