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

[Josephine]

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

Edited September 23, 2006 by Josephine

[john999]

Josephine

I think you are going to need a board certified psychiatrist to do an IMO for you. Your internist opinion will not stand up against a VA psychiatrist I don't think. Now if it was the other way around the VA would go with the their internist against your shrink. You need all the fire power you can get to win your claim.

[Vike17]

Josephine,

It looks like the problem lies in the two letters the doctor had written for you.

Dr. P writes "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.

The VA needs the doctor to substantiate why Dr. P thinks you do not have a personality disorder and why the fact from the later consultation from D. L are incorrect. It aslo doesn't help that he doctor is not a psychiatrist or a psychologist. In letter three Dr. P still does not provide a rational as to why he/she doesn't think you do not have a personality disorder. Standard psychological testing would verify this. From personal interaction, history taking, and 'physical' exams since 1979 aren't really going to cut it. The VA probably needs actual psychological evaluations with the pertinent testing and so forth. The only thing that may be probative for the VA is the medication that the doctor stated you have been on since 1967. I'm not a shrink by any stretch of the imagination, but the medication that you have been on may also be prescribed for other mental disorders, I don't know?

I suspect that if you were to obtain an IMO with the rational I stated above, you'll probably prevail in your claim.

Vike 17

Edited September 24, 2006 by Vike17

[Josephine]

John 999, & Vike 17,

Dr. P believes that this Va Psychiatrist should have to back up what she says against my medical records. If she wants to say an eating disorder, when in truth we are talking about Diabetic. That I have 3 children, when my medical records clearly state that I have two. Self inflicted injuries, where are they? I don't have any and anyone can clearly see this. Beating up my husband when he has written a notarized letter that is a lie and the same for tearing our home to shreds. They are all lies and she should have to prove what she has stated.

I agree with you, but there is not a Psychiatrist around that will go with a claim of 42 years.

They have all told me that there is no way in the world that they could say that my anxiety today began in service.

That is when I wrote to Dr. C. my military physician in 1964 to please clarify his military treatment records of me.

Here is the letter that he typed for me.

To whom to it concern:

___, formerly, ______, has requested that I write documenting my care of her during the time period of February and March, 1964, at the US Naval Dispensary, 19th and Constitution In Washington D.C. She was an enlisted person and I was a General Medical Officer practicing at that facility. The question she has asked me to address is whether I helped her obtain a discharge from the Navy.

_____ has provided documents from her medical record as well as a recent letter to me, which is undated. My - evaluation of her on 2/20/64 and a follow up visit on 2/27/64 are available. Two psychiatric consultations are also available for review. The fist performed on 3/12/64 to Dr. J and the second performed on 3/27/64 by Dr. M. Finally the letter from Co H recommends an Honorable discharge by reason of unsuitability. My understanding is that her discharge occurred shortly thereafter.

After phone discussion with ______ I did remember her as an enlisted person at the Dispensary with whom I worked with on occasion. My workup of 2/20/64 concluded that she had tension versus vascular headaches and I added a tranquilizer to her headache medicine for her anxiety. The note from 2/27/64 documents that the lab test were normal and I recognize personal shorthand in my notes that I often used for a counseling session. After 40 years I do not remember whether I started the process for a discharge, but I suspect that I may have been supportive. She had seen a Navy Psychiatrist on 3/12/64 with no indication of further workup or return visit. Two weeks later she saw another Psychiatrist to whom I frequently referred patients who needed special understanding and sensitivity. While there is no documentation that I referred her, the fact that she saw Dr. M. scarcely two weeks after a first consultation and with no worsening of her condition does suggest to me that I may had sent her for the evaluation relative to discharge.

Both C H. and Dr. M. comment on ----- immaturity and that she is uncooperative in her duties.

After she reminded me and recalled specific instances, I did recall that she baby-sit in our home on multiple occasions with our two children ages 2 and 1. I know that my wife and I would have not allowed her to stay with the children if there had been any question of her suitability. The Dispensary staff was closely knit and I would have likely been made aware of any poor behavior on --------part.

While my memory does not allow me confident documentation of my role in her discharge there is circumstantial evidence that her story is credible . I hope that you will give her case every consideration.

BCC

Edited September 24, 2006 by Josephine

[john999]

Josephine

That is amazing that you got that statement from a doctor from more than 40 years ago. I am trying to get my medical records from the doctor who saw me at Ft. Stewart in 1971. I wrote the FOIA official at Ft Stewart and asked for records and my dishcharge physical if I ever got one.

[Josephine]

John999,

Had I not baby sit for him and his wife, he would have never remembered me. If he hadn't gotten me out of that place, I know that I would have killed myself. I remember it all just like it was yesterday.

Will his letter help me?

I had no ideal when I filed in 1978 and they sent me a rejection letter and then again in 2002, that the psychiatric records were never in my claims file.

I secured them all myself in 2004 and presented the Psychiatric consulation letters and the letter from my commanding officer to the Va. The three of them speak of my working conditions etc.

I located this year from the archives my long lost transfer papers to get out of that place, but my discharge came first.

I just typed his name and all these medical articles that he had written for the Mayo Clinic were there and tracked him down.

I knew where he and his wife were from, but never knew that I would need his help one day.

I have kept his message on my answering machine all this time stating that he had received my fed ex and had reviewed the records to please call him at his home with his telephone number.

I am hoping with his letter and all my medical records of 42 years can help me win this claim.

If you know your doctors name and place of residency, you may luck out as I did.

It was a miracle that I located mine.

Thanks so much for your time,

Josephine

[john999]

Josephine

I think the letter from your doctor will help. It is evidence. Your old medical records will help. You are building up evidence to prove your claim. This is what wins claims.