Caluza and The Credibility Trap

[Vync]

This is a short article from 2015 which discussed how the Caluza ruling introduced adversarial factors into the VA's non-adversarial claims process.

 

Daniel L. Nagin, The Credibility Trap: Notes on a VA Evidentiary Standard, 45 U. Mem. L. Rev. 887 (2015).

https://dash.harvard.edu/bitstream/handle/1/27814585/Nagin_CredibilityGap.pdf?sequence=1

[awgv001]

29 minutes ago, Vync said:

This is a short article from 2015 which discussed how the Caluza ruling introduced adversarial factors into the VA's non-adversarial claims process.

Daniel L. Nagin, The Credibility Trap: Notes on a VA Evidentiary Standard, 45 U. Mem. L. Rev. 887 (2015).

https://dash.harvard.edu/bitstream/handle/1/27814585/Nagin_CredibilityGap.pdf?sequence=1

This is a good read! Thank you for posting this!

[Foxhound6]

2 hours ago, Vync said:

This is a short article from 2015 which discussed how the Caluza ruling introduced adversarial factors into the VA's non-adversarial claims process.

 

Daniel L. Nagin, The Credibility Trap: Notes on a VA Evidentiary Standard, 45 U. Mem. L. Rev. 887 (2015).

https://dash.harvard.edu/bitstream/handle/1/27814585/Nagin_CredibilityGap.pdf?sequence=1

This is great! Article may actually have a high amount of relevance to my current claim that I just had a less likely CP for.. I found this bit the most interesting and pertaining to my case regarding the lack of evidence/notes:

 "The record in the case indicated that local law enforcement had informed VA that it did not have records from as long ago as 1966. In scathing language, the Veterans Court declared that "t is hardly logical to derive a negative credibility finding, even in part, because the [veteran's] allegations are not corroborated by nonexistent records.

CP doc stated could not find notes of complaints in my earlier records, however, immediately goes on to state that he saw a note from a slightly later visit that stated I did complain of pain before, etc..

Very interesting, thanks for posting!

Edited January 15, 2020 by Foxhound6

[Dustoff1970]

Thank you for that enlightening article and confirms what many of us old hand veterans have suspected for many years of filing our own claims and appeals and dealings with the VA and VSOs.  In spite of their ad nasum repeat of giving us vets the benefit of the doubt in our claims and the system being non adversarial this is pure BS on part of VA and Congress.

Although mostly successful I have had claims denied that included strong VA,  Army medical and other evidence to support my lay statements but in their final decision wording the VA pukes made it clear to me they did not believe me or my VA and military medical evidence submitted by simply saying there was no evidence submitted to support my claim which is of course an outright lie on their part and a deliberate insult to me but of course I know who many of the raters are which is no surprise to me.

On the other hand I learned from hard experience in my Vietnam Army unit that many of my fellow vets are not honorable people and like the civilian population will lie like hell to get disability benefits that they do not deserve at the expense of other vets.

 

Edited January 15, 2020 by Dustoff 11

[Vync]

33 minutes ago, Foxhound6 said:

CP doc stated could not find notes of complaints in my earlier records, however, immediately goes on to state that he saw a note from a slightly later visit that stated I did complain of pain before, etc..

The law says the VA must assume the veteran is credible.

The VA says they will assume the veteran is credible only if they can produce evidence to back up their claims.

 

I had a situation similar to yours back in the 1997. Basically, the doc diagnosed me with something, but then clearly contradicted themselves a several of times.
  I had a lumbar/back claim where I verbally told the doc I had experienced pain, but not every day. They noted it. In one question they stated "motion stops when pain begins". But then in the next question about measuring painful motion, they state that it is "not measurable". Back then, the spine ratings were simply severe/moderate/mild, but under today's standards I fell squarely under the 20% category. The doc went on to diagnose me with DJD of minimal degree, but then stated there was no clinical evidence of disability. The rating decision was very vague and just said there were no acute findings. That one still has me scratching my head. I might have to dig in a bit further to see if it might be CUE worthy.

[Vync]

12 minutes ago, Dustoff 11 said:

Thank you for that enlightening article and confirms what many of us old hand veterans have suspected for many years of filing our own claims and appeals and dealings with the VA and VSOs.  In spite of their ad nasum repeat of giving us vets the benefit of the doubt in our claims and the system being non adversarial this is pure BS on part of VA and Congress.

In this case, the courts introduced the adversarial aspects. However, having filed claims back in the 90's, I can definitely tell you that I believed it was a very adversarial process.

 

14 minutes ago, Dustoff 11 said:

Although mostly successful I have had claims denied that included strong VA,  Army medical and other evidence to support my lay statements but in their final decision wording the VA pukes made it clear to me they did not believe me or my VA and military medical evidence submitted by simply saying there was no evidence submitted to support my claim which is of course an outright lie on their part and a deliberate insult to me but of course I know who many of the raters are which is no surprise to me.

On the other hand I learned from hard experience in my Vietnam Army unit that many of my fellow vets are not honorable people and like the civilian population will lie like hell to get disability benefits that they do not deserve at the expense of other vets.

Having solid evidence in your record and the VA claiming it does not exist happens way to often. It happened to me when I filed my initial claims. All denied because they said my service treatment records were silent. I found out that they lost the copy of STRs I sent in with my claims. That put me on the appeals wagon from the start and I won some, but not all, of my claimed conditions.

You're definitely right about dirty claims. I was once told that laws and regulations exist because of the mistakes of others. I have no doubt that many claims are frivilous. That's probably why the VA goes out of their way to be adversarial behind the scenes, while claiming the opposite publicly.

[Dustoff1970]

I wish someone on here who is also active member of the Veterans Benefits Network (VBN) forum would post the above excellent article on that forum as the people who run it are ex VA raters, DROs and VSO.   Thank you.