Where to find this VA mandate

[jamescripps2]

I am sure that I have read this either in the 38 C.F.R or the 38 U.S.C.   A  mandate, that where there is an option, or choice, the VA is to choose the most favorable option in the best interest  of the veteran. Where can I find this mandate? I am looking in the C.F.R but I have not found it yet.

Thanks

[ArNG11]

§4.3   Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

 

§4.7   Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned

[jamescripps2]

Thanks for the post, but I am still looking for the mandate that directs the VA rating authority to give to the veteran, no matter what the discrepancy, a ruling that is most favorable to the veteran. 

I have an "L" rating for loss of use, The VA then used 100% Heart Disease to get me the boost to "M", Now they want the 21-2680 to show that I need A&A for 100% Kidney disease. That would be hard to do because I am not on Dialysis yet. 

My contention is, The rater was correct in assigning the loss of use x 2 as an "L" rating. The rater then had a a choice  to make as to whether to use the 100% Heart disease or the 100% Kidney Disease for the boost to "M".

Had the rater chosen the Kidney Disease, instead of the Heart Disease, for the Boost to "M" That would leave the Heart Disease as an unused 100%award to become a basis for the need for A&A. That scenario would have given the most favorable outcome to the veteran.

How can I support my contention, by statute, that the VA is mandated in every incident, to give to the veteran the most advantageous ruling where there is an option to consider?

I have another thread open, but here in this thread, I am looking for a matter of law to support my contention.

asknod maybe?

[broncovet]

Excellent question, James, that is not especially easy to answer.  Not only is VA required to give BOD, but VA has a duty to MAXIMIZE your benefits. (See link below for citations and case law)  However, in addition to the great answer by ARNG, Try this one, even tho there are "claimant friendly" statements throughtout VA regulations and case law.  

§ 3.102 Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

 

Also see Roberson, as explained here:

http://www.purpleheart.org/ServiceProgram/Training2013/19-T-Effective%20dates-Ron.pdf

As Alex has pointed out, national VSO's argue "benefit of the doubt" in almost every brief they prepare for BVA.  

 

 

This said, lawyers who work for VA have done a great job "eroding" BOD.  One example of this is the "deemed denial" principal.  If the Veteran is to be given the benefit of the doubt how is it that unadjuticated issues are "deemed denied", when it would make more sense that they are "deemed approved".  If the VA forgets to decide a claim, should that not also go in the claimants favor? 

This is partially resolved in Colvin Derwinski.  In Colvin, the judges decided the BVA can rule against the VEteran if there are 2 conflicting exams, BUT the VA must give a reasons and bases as to why the Board picked the less favorable exam, such as the less favorable exam was more thorough (because the examiner reviewed the records and maybe the more favorable examiner did not so state).  In other words, the BVA has to explain why they did not favor the Vet.  

Also see doctrine of equipose in VA law.  When that word is used, its usually favorable, if the Veteran can get his claim "in equipose" then they must decide in favor of the claimant.  

Edited January 20, 2016 by broncovet

[broncovet]

Veterans attorney, John Tucker explains it this way:

Veterans often ask me what the term “equipoise” means.  You will often see the term in decisions from the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (the CAVC, or Veteran’s Court).  “Equipoise” is actually a word that is defined in the one of the federal statutes governing VA claims, 38 U.S.C. § 5107(b).  It describes a presumption that the VA must give to the Veteran when the evidence on a given fact is evenly balanced (i.e., a 50/50 split proving one side or the other of a given fact).
The law states, “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”  So, when the information in a veterans claim file is equal enough to either prove or disprove a particular fact, the Secretary is required by law to reach the conclusion which is more favorable to the Veteran.  This does not mean that any evidence will put an issue into equipoise.  On the contrary, equipoise only exists when there is equal evidence on either side of a particular issue.
For example, all things being equal, if two doctors each give differing opinions on medical nexus (connection of a disability to an in service event or injury), then the VA must conclude that the nexus exists in favor of service connection.  Of course, the VA will often distinguish the doctors’ opinions, and try to show that the doctor who stated that there was no connection should be followed.  This may be error, because the doctors may be equally credentialed, have both examined the Veteran and reviewed her or his entire claim file, therefore putting them more on equal footing than the VA claims.
The concept of equipoise can be a very powerful tool for Veterans to use in their claims for service connected compensation and pension with the Department of Veterans Affairs.
 

[Buck52]

This is a long read but maybe beneficial to you James cripps2

3.4. Benefit of the Doubt

 

A key difference between the VA benefits system and other federal benefits systems is the standard for how convincing the evidence has to be in order to support an award. In legal terms, this is called the "standard of proof" or the "evidentiary standard." Most people are familiar with the standard of proof of "beyond a reasonable doubt" in a criminal trial. This is a very high evidentiary standard.

In VA benefits cases the standard of proof is a "preponderance of the evidence." This is a very low – and more easily met – evidentiary standard. Because "preponderance" means the "majority," an award should be granted when the evidence supporting a claim is ever so slightly more than the evidence against a claim. Another way of stating this is that VA is supposed to grant a award unless more evidence is against the claim than supports the claim.

The preponderance of the evidence standard leads directly to another important rule, known as the "benefit of the doubt" rule. The law requires that, after consideration of all the evidence, if there is an approximate balance of positive and negative evidence, the benefit of the doubt in resolving each such issue should be given to the claimant. In other words, if VA finds that the evidence is equally divided between evidence supporting a claim and evidence against a claim, such as two conflicting medical opinions, the claimant gets the benefit of the positive evidence. For this reason, the rule is also known as the "tie goes to the runner" rule, where the claimant is the runner.

The benefit of the doubt rule, however, is widely misunderstood and is often the source of great frustration for claimants. Despite what many believe, the rule does not mean that VA must make an award anytime a claimant submits an account of an event supporting an award. The rule also does not mean that VA has to believe a claimant, a claimant's spouse, or claimant's doctor when other evidence is in conflict with their statements. VA is always required to weigh such evidence against other evidence, such as service records or other medical opinions, but VA can find other evidence more convincing.

All the rule really means is that when all the evidence on a particular issue is equally balanced between positive and negative, VA must give the benefit of the doubt to the veteran on that particular issue. The rule only applies when there is a close call on some issue: when the evidence tilts one way or the other, the rule does not apply. Further, giving the benefit of the doubt on one issue does not mean the entire claim must be resolved in favor of a claimant. This is because the rule is applied to individual issues, not an entire claim. So, for example, resolving whether a certain event occurred during service using the benefit of the doubt rule does not have any effect on the issue of whether there is a nexus between the incident and a current condition. If the evidence is strongly against a nexus, the claim will still be (correctly) denied.

Pursuant to 38 C.F.R. § 3.102, any reasonable doubt must be resolved in favor of the appellant "[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter."  "The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant."  38 U.S.C. § 5107(b).

"When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant."  38 C.F.R. § 4.3.  Section 3.102 defines the term "reasonable doubt" as used in § 4.3 as doubt "which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim."  38 C.F.R. § 3.102; see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) (stating that section 3.102 "restates" the provisions of 38 U.S.C. section 5107(b) (benefit of the doubt) in terms of "reasonable doubt").  Thus where the Board concludes that the evidence is not in equipoise, specific consideration of section 4.3 is not warranted.  See Schoolman v. West, 12 Vet. App. 307, 311 (1999) (explaining that where the preponderance of the evidence is against an appellant's claims, "the benefit of the doubt doctrine does not apply").  Mayhue v. Shinseki, 24 Vet. App. 273, 282 (2011).

Perhaps the analogy most helpful to an understanding of the "benefit of the doubt" rule is that the standard is similar to the rule deeply embedded in sandlot baseball folklore that "the tie goes to the runner."  If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and, again, the rule has no application; if, however, the play is close, then the runner is called safe by operation of the rule that "the tie goes to the runner."  Similarly, if a fair preponderance of the evidence is against a veteran's claim, it will be denied and the "benefit of the doubt" rule has no application; if the veteran establishes a claim by a fair preponderance of the evidence, the claim will be granted and, again, the rule has no application; if, however, the play is close, i.e., "there is an approximate balance of positive and negative evidence," the veteran prevails by operation of 38 U.S.C. section 5107(b).  Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

The Court has held that the failure of the BVA to apply the benefit of the doubt rule or to set forth clearly its reasons for not applying it constitutes error.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Sussex v. Derwinski, 1 Vet. App. 526, 529 (1991).  In addition, the Court notes that 38 U.S.C. 1154(b) provides specifically that the Secretary "shall resolve every reasonable doubt in favor of the veteran."  38 C.F.R. § 3.302.  Furthermore, when the BVA can cite no evidence or facts by which to impeach or contradict a claim, there is no justifiable basis upon which to deny application of the doctrine under 38 C.F.R. § 3.102.  Sheets v. Derwinski, 2 Vet. App. 512, 516-17 (1992).

 

Because the benefit of the doubt rule only applies in these specific situations, the rule is not applicable to many claimants. In cases where there is significant evidence in support of a claim, however, VA must provide a satisfactory explanation as to why the evidence was not balanced enough to apply the rule if the decision was adverse to the claimant.

 

..............Buck

[broncovet]

Great answer, Buck, yours was a better answer than mine.  This should be a new post titled "benefit of the doubt", so that other Veterans can find these tasty gems that could/should help them win.  The BOD arguement is so strong that many VSO's use it exclusively.  While I think that is a mistake, I wont disagree that many, many a Veteran has one his claim on BOD.  

Edited January 20, 2016 by broncovet