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"Absence of Evidence" is not "evidence of absence".

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Dont Let VA pull this one on you, but they try it all the time.  



In pertinet part:


The VA examiner based her negative nexus opinion exclusively on a lack of evidence of treatment for sleep apnea while in service, or for 16 years after service…[r]elying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate.”

Understand the difference between "negative evidence" and "lack of evidence".  

If your doctor administers tests for, say, diabetes, and the results are negative, then that is "negative evidence".  This would go "against your claim" for diabetes.  However, if the doctor says your military service is absent a diagnosis of diabetes, then its possible, or even likely you could have still had diabetes because:

1.  Maybe you were never tested for diabetes in service but you actually had it.  

2.  Maybe you were tested, but the doctor failed to enter this into your medical record.

3.  Maybe your doctor entered it into your records, but for whatever reason, the rating specialist either could not find it, or, he top sheeted you and never bothered to read it.  

Bottom line:  Dont let VA deny you and put in the reasons and bases "your SMR's were negative for diabetes", because its a logic error to try to prove a universal negative.  


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The VA can, and does, use absence of evidence to deny a claim. Every minute of every day. I hope you'd agree It would be equally absurd to claim that absence of evidence makes it likely you had an affliction- I'm not sure that's what you meant to write- And you know me; not at all one to take the VA's side.

On 7/4/2017 at 9:21 PM, broncovet said:

... However, if the doctor says your military service is absent a diagnosis of diabetes, then its possible, or even likely you could have still had diabetes... 

Here's two extracts from the lengthy 'working instructions' for people who actually do the claims.

III.iv.5.A.2.g.  Court Holdings on Negative Evidence


The Federal Circuit held in Maxson v. West, 12 Vet.App. 453, aff’d sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), that when rebutting the presumption of aggravation for a condition incurred during combat, 38 U.S.C. 1154(b) permits consideration of the entire medical history, including a lengthy period of absence of complaint following service about the claimed condition.


Important:  Do not use the absence of evidence as negative evidence in cases where the claimant has simply failed to prove an element of the claim by the applicable standard (typically relative equipoise).  However, the absence of any positive evidence, such as medical evidence showing diagnosis or treatment, may be considered in determining whether the benefit may be awarded. 

Now, if you read the lengthy instructions, you'll find it contradicts itself, and is vague. That's why when you see lawyers arguing, they each have found 'precedent' that suits their position, on the same question.

If you were a physician, had a middle aged, obese man appear before you claiming he got diabetes, or sleep apnea 16 years ago in the service, with no credible evidence, what would you do?

My advice is to skip lawyer arguments and file a RFD or DRC claim- Something you've advocated. Otherwise, by the time it actually gets to the court, chances are most of us would be dead, or close to it.

Get lay, or better yet, buddy statements.

Have your own clinician fill out a DBQ and IMO.

Get all your PMRs.

Submit everything in one batch, perhaps do an index of where to find what, so it goes RFD on day one.

This isn't a guarantee, my buddy had sleep apnea denied even after the VA examiner opined it was more likely than not from his service, but you'll agree it's far closer to 'slam-dunk' than zero chance.

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Excellent opinion MikeHunt.   You also cited case law to support your opinion.  It happens like this a lot.  Case "A" suports the Veteran obtaining his benefits, while Case "B" suggests he should be denied.  

In this instance, the benefit of the doubt is supposed to accrue to the Veteran, but as we all know, counting on VA to follow their own regulations is frustrating for Vets.  

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Thanks for the props, Bronco.

The standard, I think in the article you linked in OP, is 'more likely than not.' Really, it's less: 'equipoise.'

To find working instructions, google "M21-1" and whatever your question is- Usually M21-1 'cites' CFRs or USC, and in this case it cited precedent, if you want to 'drill up' to find instruction's grounds.

But, what you would do if a veteran filed a claim is to read through STRs and see if s/he was treated- or even anything you thought was close to being treated for the contention- and if so, order exams. You'd cite the VBMS document, date and page number for the examiner.

You didn't do anything with negative findings, besides mark it RFD. The rater would just deny them. Of course, the worst sticks with you; You'd have people put down over 100 contentions. Most, or all contentions, had zero evidence- not enough to even get an exam, let alone worry about equipoise.

You'd never see, or hardly hear of a DRC claim. It just wasn't done.

Again, the best you can do is have everything squared away when you file so it's EZ to just say 'yes.'

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ON A DISABILITY. This kind of stuff raters have to look at claiming sh** you can prove

evidence wins not your lay statements from you or your buddies. VA I guess suppose to

believe everything we say should be true  but its not easy and you will e surprise how many

vets file Bogus claims and VA has to look at this kind of stuff and make a decision. Waste of

time this add to the backlog. jmho


Edited by porgee
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Well, there are some 28 million Veterans, and all of them served their country.  About 2/3 of  VA employees did NOT serve their country, and VA is called "the most corrupt and inefficient agency in the United States" by the president.  So, I guess you are saying we should trust corrupt VA employees, and assume all Veterans are liars.    Oh, wait, not all VA employees are corrupt, right?  Well not all Vets submit so called "bogus claims".  You should be very happy if you are a rater and receive a "bogus claim", as it should be a quick denial, and you can make your quota    Please tell me how a VA employee badge means more than 4 or more years of service to our country, when Veterans put their very lives at risk for their service.  What do VA employees risk, maybe getting fired?  Dont talk to me about "bogus claims" because that very statement is a "culture of denial" at VA.  

The Average Federal employee earns about 76,000 per year, according to the Washington post.  


A few years ago, someone figured up the "average" Veterans Compensation, reminding you that Veterans earn anything from 0 percent, up to a maximum of 100 percent, which is 2915 per month or about

under 35,000 per year.  35,000 is not the average, its the maximum.  The average varied widely by Regional Office, but in my RO the average was less than 10,000 per year.  Senator Barack Obama got very angry because Illinois Veterans received one of the lowest in the country.  The VA responded by "no longer tracking" the average compensation per Vet in different RO's.  That is how they fixed the problem, by burying it so no one could see it.  

So, the average VA employee earns 76k a year, and compensates the average Vet 10,000 per year.    I wonder why there are more homeless Veterans, than there are homeless VA employees, especially considering that VA employees get paid in 2 weeks after they get hired on, while Vets sometimes wait 10 years or more.  

It looks to me like VA employees ought be very happy about their 76 grand per year, and do a better job taking care of Veterans with their 10,000 per year, and stop complaining about so called "bogus claims".  By the way, the 10,000 average compensation per year paid to Veterans is well below the poverty level.  Its no wonder why they are homeless.  If a 10,000 dollar per year Vet paid out 1/3 of his income to rent, then he would have to find a place to rent for 275 per month, which is virtually impossible in most parts of the country.  

Edited by broncovet
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You know what people on SSI have to live on $770.00 per month and pay their bills and

no food stamps. BUT the POTUS don't want to pay that to the poor. Then they wonder why

people have to sell food stamps to get by. Cut congress pay $165,000 a year and cant vote 

or come together on anything we had 8 years they couldn't and still cant agree on nothing.

That pay scale could be a little more now for congress


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