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diabetes Benefit Of Doubt Regs-
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Question
Berta
A local PTSD vet recently contacted me -very angry at his RO decision-which did not raise to the level for VA to consider and award under Benefit of Doubt regs-
I think this reg is often misunderstood-
The evidence has to rest within Relative Equipoise-
meaning equal evidence for and against the claim.
Fox Ex: my AO death claim
VA examiner used 3-4 med recs and opined against the claim and never considered any other evidence-(although she also actually offered support for the claim too)
IMOs (3 so far) state with full medical rationale that the veteran, my husband, had diabetes mellitus (undiagnosed or treated by VA) that contributed to/caused his death.
Also The General Counsel determined years ago that VA had caused Rod's death-with "indefensible" negligence therefore it is most likely they could not diagnose diabetes because they could not even diagnose his heart disease and strokes properly (FTCA report and Sec 1151 award)
This shows a balance of evidence in my favor which should award Benefit of Doubt.
(Actually the VA has a "preponderance" of evidence-above and beyond what the Benefit of Doubt Regs require)
The vet who contacted me had not given the VA any evidence to support his stressor-
nor did he engage in combat.
Quite some time ago I gave this vet the link to NARA - to get his personnel records as well as SMRs and also I gave him his unit site and some other stuff to help find a buddy,etc.
He had sent the VA a very long rendition of numerous events that happened to him-in service- with no dates, places, witnesses, etc- nothing to back them up-no buddy statements nor anything else that could prove the stressors-
CURR cannot look for a stressor without specifics.
So far this veteran cannot be extended the benefit of doubt regs-
He recalled that one incident was in the local newspaper -near the base-
If this vet can obtain this article and then put himself into the same unit,same time and place,
by personnel records and/or eye witness account- there is good likelihood that this evidence would put him into realm of Benefit of Doubt regs.
Stressors often take legwork-to prove.
But the internet has made that easier than it used to be.
This is M21-1's explanation of Benefit of Doubt regs :
from:
http://72.14.205.104/search?q=cache:aUSCuD...=2&ie=UTF-8
"1.03 EVIDENCE IN BALANCE
a. The reasonable doubt rule is found at 38 CFR 3.102. Every person involved in the adjudication of compensation and pension claims must be thoroughly familiar with this regulation.
b. The benefit of the doubt belongs to the claimant. If there is a balance of evidence supporting and against a factual issue, VA must make a factual determination in favor of the claimant. In Gilbert v Derwinski, No 89-53, the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims (CAVC)) likened the reasonable doubt rule to a rule "deeply embedded in sand lot baseball folklore that the 'tie goes to the runner'.” If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and again, the rule has no application; if, however the play is close, then the runner is called safe by operation of the rule that 'the tie goes to the runner'.” After obtaining all relevant evidence, evaluate the evidence and determine if the evidence in favor of the position held by the claimant is of greater weight than the evidence to the contrary. If the evidence supports the position of the claimant, the claim is allowed. If the evidence does not support the claimant, the claim is disallowed. If the evidence is approximately balanced, resolve doubt in favor of the claimant.
Example: A veteran filed for compensation based upon injuries acquired as the result of an automobile accident while serving on active duty. The police report indicates that the veteran's vehicle failed to negotiate a curve and was speeding at the time of the accident. The report also states that the road surface was slippery as the result of rain earlier in the night, and that there were skid marks which indicate that the veteran attempted to stop the vehicle prior to the accident. The combined evidence that the accident was caused by hazardous road conditions in contrast to being caused by the veteran’s reckless driving is in approximate balance and, therefore, the injuries that resulted from the accident will be considered as having been incurred in the line of duty. "
(I wish they had used a different example-many examples of these regs are found within BVA decisions.
http://www.va.gov/vetapp06/files4/0626136.txt
and:
http://www.va.gov/vetapp06/files4/0624129.txt are 2 good examples of how the vet succeeded up Benefit of doubt-
In the second decision- the VA tried to say the vets smoking habit caused his heart disease.
The vet claimed his DMII did.
BVA weighed the evidence in an unusual but sensible way:
"In weighing the above evidence of record to determine whether
there is an etiological relationship between the veteran's
cardiovascular disability and diabetes mellitus, the Board
finds that the evidence (particularly the finding that his
cardiovascular disability is 50 percent due to diabetes and
50 percent due to past tobacco use) is in equipoise.
Therefore, resolving all benefit of doubt in the veteran's
favor, the Board concludes that the competent evidence of
record supports a finding of service connection for a
cardiovascular disability, as secondary to service-connected
type II diabetes mellitus."
(Of course a VA doc provided the smoking-DMII nexus opinion --- a private doctor disregarded that factor with a stronger IMO.)
As I often say-VA owns the scale and kicks Blind Justice in the knee-so the evicence is not properly weighed when they consider Benefit of Doubt-
the reality is- as long as they can ignore many of your medical evidence-supporting your claim they might as well hold Blind Justice as a disabled hostage-and Benefit of Doubt reg does not even have to be considered
it is imperative that you make sure they have considered your evidence in the SOC and have stated a legitimate medical rationale as to why they rejected it-
and -as you all know- I filed FTCA claim against them- in order to get my IMOs acknowledged.
They claim they never received numerous submissions of my IM0s since 2005.
I will not hesitate to file suit in the fed court soon- if they still maintain they dont have them.
I dont care if they come up with more VA medical crapola- I can get another IMO-
but as long as the VA can ignore your evidence or say they never got it-
Benefit of Doubt wont help you a bit.
Edited by BertaGRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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