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

[Foxhound6]

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..

[Vync]

@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.

[Foxhound6]

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.

[Vync]

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]

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.