38 usc 3.102 Am I reading this correctly?

[ballistics-guy]

Is the stuff below reality or wishfull thinking?

§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 …

•[not]pure speculation or [beyond] 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 … is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine.

If you can’t say:

“this evidence is impeachable by, or contradicted by evidence or known facts”,  then

(even if you doubt that it’s true, but concede that it’s not pure speculation or beyond remote possibility),

it’s subject to Reasonable Doubt Doctrine and must be resolved in favor of the claimant

 

(Authority: 38 U.S.C. 501)

[50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]

[R3dneck]

Was this amended again recently? 

[ballistics-guy]

(Authority: 38 U.S.C. 501)

[ 50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]

[ballistics-guy]

21 minutes ago, R3dneck said:

Was this amended again recently? 

https://www.law.cornell.edu/cfr/text/38/3.102

[toddt]

It is reality.  Check it out:    Go here -   http:   //www.index.va.gov/search/va/bva.jsp     

Put this in the block labeled "find these words"   -  "38 C.F.R. § 3.102"

You will see thousands of  BVA decisions quoting 38 C.F.R. § 3.102 some granted some not.

[ballistics-guy]

I re-worded the language in the law to make the last sentence.  I read that to mean, for example, if I present a journal article that shows sleep apnea is caused by bad haircuts, the VA has to take that as the truth until they can show that it's not even remotely possible or pure speculation.  Wow.

If you can’t say:

“this evidence is impeachable by, or contradicted by evidence or known facts”,  then

(even if you doubt that it’s true, but concede that it’s not pure speculation or beyond remote possibility),

it’s subject to Reasonable Doubt Doctrine and must be resolved in favor of the claimant

 

That's not the way the VA works in Massachusetts.  You can state whatever you want, the VA will make a decision and the may or may not even acknowledge that you made a point.  If a C&P doctor says "I doubt", you're done.

[CB1]

Ballistic Guy,

Did you ever get  Sleep Apnea rating granted? I’m going through the same battle.

Thanks,