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

[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 VSO.   Thank you."

 

I gave up on VBN long ago when they told me that I could not beat an appeal by submitting a request for a higher level review. I then submitted the request, and less than 30 days later, won the claim. They deleted my post after I presented the approved claim to the forum.

[Dustoff1970]

That sounds like them alright as I and many others have had same experience with them

[vetquest]

4 hours ago, Dustoff 11 said:

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.

I might just do that to see if I get banned dustoff.

I also believe that the old system was adversarial in the 80's and 90's.  I was medically discharged as unfit to perform my military duties due to a service injury in 1986.  I first received 0% from the VA and then 30% back to 10%, and then 50% in 1991.  So much for the statement that the VA was there to take care of disabled vets.  

[Dustoff1970]

Over a 30 year period I learned to trust only myself in filing claims and appeals and in order to achieve my legitimate service connection ratings has been a semi full time effort on my part.  I have compared my claims and appeals to those that were granted by the BVA and with nearly exact same evidence and conditions as my situation and know that i had correct justified claims from the very beginning but like them had to go thru unnecessary hoops and delays to receive the proper ratings.   

Those that are in special groups never have to go thru that appeal BS and get everything on the first go but that is life in America.  I do not mourn the loss of any..........................................

Edited January 16, 2020 by Dustoff 11

[Foxhound6]

Vync, you got my brain juices flowing with this thread. Decided to look up 38 CFR regarding reasonable doubt (3.102). I think I may be able to create an example argument based on my claim in hopes it could help others in similar situations? Id like to break this down a bit, highlight what I feel are important terms to note, and get feedback. Ill submit my DBQ here as well so you can see why I am making the argument in the first place.

§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.

-This, I think, we are all familiar with....broad interpretations indeed.. but they look at the facts case by 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.

- After considering all of the procurable (by VA) and assembled (generally our gathered evidence) data, if there is a doubt whether the disability was caused in service, the severity of the disability, or any other point (this is where they can tend to overstep their authority), then the tie goes to the Veteran.

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.

-  The doubt exists because of a balance (a tie) of positive and negative evidence that 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.

- To not fall under this doctrine, the doubt must be substantial. Meaning, it must be something that isn't formed of pure speculation or a remote possibility.

It is not a means of reconciling actual conflict or a contradiction in the evidence.

-It is not meant to be used as a way of resolving a conflict or a contradiction in the evidence of the claim.

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.

- This is important. If mere suspicion OR doubt as to how truthful ANY statement submitted is, the rater should invoke this doctrine and award benefits as long as the rest of the claim warrants invoking this doctrine. The only other way they could weasel out of this would be to outright call your statement(s) false, or the evidence contradicts your statement(s) or other evidence within the claim.

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.

-This could be beneficial to those in this situation. This means that the doctrine can also be invoked in the absence of official records. Especially if the basic incident happened under combat, or similarly strenuous conditions, and is consistent with the results of such known hardships.

For me, the event happened during a training exercise so would not fall under combat, but, the nature of the exercise made it difficult to seek treatment outside of a medic checkup in the field.

Also, during the time the CP doc states I did not seek treatment or have notes regarding pain (but immediately states he did see a note in history from 2016 stating I did complain of back pain back a few years back in 2014/2013).

I was primarily going to the VA for my mental health as it was a major problem during that time, which the VA has documentation of and I have a claim in for as well. I was also very weary of the VA, especially during the 2014 PHX VA scheduling fiasco.

I did tell them about my back and neck pain, however, they pretty much ignored it, saying it was "probably because of my SC knee", at that clinic. I, years later, went to a different clinic that was better and were the ones to find all my issues.

My DBQ was medically favorable throughout, it was his opinion that was questionable as to reasonable doubt doctrine the rater may have to look at with my claim. Take a look and maybe let me know any thoughts anyone has? I have found this very interesting.

I am not an attorney, these are just my interpretations

DBQ Redacted.pdf

[Vync]

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.