Content Curator/HadIt.com Elder Vync Posted January 15, 2020 Content Curator/HadIt.com Elder Share Posted January 15, 2020 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, vetquest, paulstrgn and 2 others 5 Link to comment Share on other sites More sharing options...
0 Foxhound6 Posted January 17, 2020 Share Posted January 17, 2020 2 minutes ago, Vync said: Hey @Foxhound6, That is a very good breakdown of Benefit of the Doubt, a very powerful law. Several of my own claims were won in this fashion. I never had to go out of my way to argue for it's application, but the VA did come to that determination on their own. At least your C&P doc acknowledged you did complain of pain. If it was probably SC because of your knee, then would that not be sufficient for secondary SC? I know the VA tends to discount terms like "probably" or "possibily". BOD excludes "remote possibilities", but "probably" is less excluding then "remote". I took a look at your DBQ and was surprised to see they sent you to a physiatrist (i.e. physical rehab doc). The opinion part gets me. "I have not been asked for an opinion". If this was for an existing SC disability then that makes sense. But the doc opined "less likely" which is puzzling. You had an event in service. You have a current disability. The doc did not bother to indicate if there were any other possible causes. In my non-professional opinion, BOD should indeed apply here. It's probably another case of the VSR's blindly looking at the nexus statement first without reviewing for BOD factors. You have solid evidence in your favor. The only evidence against is this doc's opinion. Might be worth checking your VA medical records yourself to see if you can find neck complaints that the doc missed. Thanks! I feel like it may fall under BOD. However, until I get my decision letter, I wont know what the VA will do. However, I think I am set up nicely to fight it needed. I hope they apply the doctrine..If not, Ill try to argue. If that does not work, like you said, secondary to Knee would be my pressure release valve sorta speak. I was also interested that they had a PM&R doc on staff to do the exam. You're also right that his opinion is puzzling. Perhaps he knows the ratings as well and was purposely trying to walk the line? Hard to tell but it has been interesting for sure.. Link to comment Share on other sites More sharing options...
0 Content Curator/HadIt.com Elder Vync Posted January 17, 2020 Author Content Curator/HadIt.com Elder Share Posted January 17, 2020 @Foxhound6 Was this your first claim for it? Have you received a rating decision yet? In my case, I am considering a CUE due to a jacked up C&P exam, but I have the details posted on another topic. Of course, due to the age and it being a potential CUE, the rules are much more strict. Link to comment Share on other sites More sharing options...
0 Foxhound6 Posted January 17, 2020 Share Posted January 17, 2020 2 minutes ago, Vync said: @Foxhound6 Was this your first claim for it? Have you received a rating decision yet? In my case, I am considering a CUE due to a jacked up C&P exam, but I have the details posted on another topic. Of course, due to the age and it being a potential CUE, the rules are much more strict. I initially filed the ITF in SEPT 2018. I filed the claim SEPT 2019. They initially denied it in about 2 weeks lol ( i had no real clue what I was doing). While it was going thru the first round, I got onto the forums here and started to educate myself lol. I sent in Supplemental with new evidence (medical stuff, lay statements, etc) in OCT 2019 and here I am now. So I do have about 15 months and counting of retro pay "skin in the game" for this claim. I only have pulled the Docs CP exam from HealthEVet. It has not had a decision given yet, although based on the docs opining negatively, I expect another denial which is why I am looking into the BOD. Just in case it is needed to make an argument..but it has been over a month since the CP and still no word. Link to comment Share on other sites More sharing options...
0 Content Curator/HadIt.com Elder Vync Posted January 17, 2020 Author Content Curator/HadIt.com Elder Share Posted January 17, 2020 Keep in mind that most claims are won on appeal. I only think I won a couple on the first try. If they overlook BOD in the rating decision, time to educate them and file another supplemental. Foxhound6 1 Link to comment Share on other sites More sharing options...
0 Foxhound6 Posted January 17, 2020 Share Posted January 17, 2020 28 minutes ago, Vync said: Keep in mind that most claims are won on appeal. I only think I won a couple on the first try. If they overlook BOD in the rating decision, time to educate them and file another supplemental. You took my thoughts, Sir. I'm eagerly awaiting the decision letter lol The only claim I won on first go was my knee and was service presumptive, right when I got out. Vync 1 Link to comment Share on other sites More sharing options...
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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
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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:
pwrslm
"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
Vync
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. H
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