diabetes Benefit Of Doubt Regs-

[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 February 13, 2007 by Berta

[Guest jangrin]

Berta,,

Have you heard from the General Councel regarding your law suit for destruction of property (your many lost IMOs)? If I remember correctly you should be ready to go ahead and file as his time has run out. If not you should be close. Correct?

What is the sequence of events once that suit is filed? Please enlighten me as I am not too familiar with law suits and who does what next.

Also, you had mentioned filing a Writ of Mandamus (sp) is that still the plan? Is the Writ for the missing IMOs or for your claim(s) that was remanded?

Thanks,

Jangrin

[Berta]

Jangrin- I think the RC has until March 1st to decide on my SF 95 FTCA claim-

havent checked that lately-I filed it on Sept 1st.2006.

He might ask for an extension.

I am not calling to remind- It would be advantageous to me to have the time slip by.

I filed this claim for property destruction because the IMos I paid for (4000 bucks)and the considerable mailing and copy fees of all of my evidence in addition to the IMos (500 bucks)

all of this has monetary value and -

since VA has never acknowledged - and last month said they have Never received these IMOs-I supported my FTCA claim with the VA's own email.It has all been lost, misplaced or destroyed.And all had Value to proper resolve of my claim.

The IMOs were sent back to VA with the BVA remand-also I had suppied 10-12 copies of the initial two IMOs-My POA claimed he too presented them to the DRO- the SOC and subsequent mail from his boss shows that never happened-

also in December I emailed my vet rep to try one more time to check the c file (they have 2-3 reps at the RO)-to see if the IMOs have shown up-

I actually copied one IMO -in 2005-into the back of a letter to the Director asking for the IMOs to be considered. No answer.

I have talked to Regional Counsel twice about this claim.

I dont want my money back -I want the IMOs considered and acknowledged as evidence.

I want due process.

RC didnt know if this was a FTCA basis-never had a case like this-I found a similiar case from a prisoner filed in NY-

and sent it to him -

I thought he would walk over to the RO, see the IMOs in the file, send me a letter stating that and I would have withdrawn the FTCA claim. It didnt work that way.

I received two or three BS emails in return-from my POA since Dec. indicating that they had the means of checking this by looking in the c file-(of course they do) but nothing that said they would.And they didnt.

(I am saving their correspondence and going to complain to the Governor as soon as my AO claim is resolved.)

I think it is a travesty that a VA claimant has to file suit in order to get Due Process.

I believe this is a violation of every basic VA case law there is.

HOWEVER

I also believe that the sticky fingers might be attached to the hand of a vet rep on my POA.

Two of them screwed up my claim terribly and it would be to their advantage to never have those IMOs see the light of day.I am considering a Discrimination suit with the NYS Dept of Human rights-

When I emailed Deputy Sec Mansfield in early Dec at the VBA in Wash- the claim suddenly started to get worked on again-it has been with a rater since Dec 9th I think.

I am ready for an additional IMO too if needed.I am glad you asked- I have been overwhelmed by a lab course and shoveling lots of snow and having been spending time not even thinkng about all this-

The SF 95 form explains the jurisdiction and basically how you state a claim like this.

For the Writ of Mandamus-four years have passed.

I have made attempt to have the General COunsel decide this and have to ask the VARO one more time for a decision-

in other words I have to show the court, via the writ, that I have exhausted every avenue so far- to get a decision on that claim.

That specific claim involves a legal issue that has to be sent to VA counsel as a legal question-VA counsel could not accept jurisdiction over it yet but their letter shows the CAVC that I attempted to get this claim to the proper place-to VA counsel- because VA failed to do that in 4 years.It is a legal issue.

The writ or anything else I do at this time would be more one thing to get my AO claim and the CUEs out of the raters hands-

I am biding my time.

NVLSP suggested I go there and get it straigthened out-

I will as a last resort-

My own POA has vet reps right there who live in Buffalo-and work on the RO grounds-that could do in less than an hour what I need to take 2 whole days of travel time etc to do-not to mention I am in school-

they dont have daily homework-brag that they go in and out of the VARO and talk to DROs all the time- and are paid to be vet reps.

If I have to go there to check what they are paid to do- the Gov of the state of New York will own me plane fare and a hotel bill-

I maintain this POA because I am building a case against them as I await them to redeem themselves by doing one positive thing to help me get a proper VA decision.

As I said-I do believe the fault might not rest wth the RO-

if evidence is lifted out of a file as soon as they get it-how could I expect the RO to make a proper decision?

The letters and emails I have from many levels of my POA as well as the boss are atrocious and indicate they do not have knowledge of basic VA regs and case law.No wonder the local boss wanted me to apply for a job there in 2004-He probably still doesn't have a clue.

When I contacted NVLSP I told Ron that I hoped lawyers , after June, will not only look for CUES in older decisions (and hopefully the lawyer regs will allow them to handle that)

but to look for potential financial loss that occurred to the vet due to poor representation by a vet rep-which cannot be recovered by a Cue claim.

Sorry for long post-

as Ron Abrams said to me- something was Definitely wrong up there and I believe

it started right here at the local POA office in January 2003.

[Berta]

Jangrin- I think the RC has until March 1st to decide on my SF 95 FTCA claim-

havent checked that lately-I filed it on Sept 1st.2006.

He might ask for an extension.

I am not calling to remind- It would be advantageous to me to have the time slip by.

I filed this claim for property destruction because the IMos I paid for (4000 bucks)and the considerable mailing and copy fees of all of my evidence in addition to the IMos (500 bucks)

all of this has monetary value and -

since VA has never acknowledged - and last month said they have Never received these IMOs-I supported my FTCA claim with the VA's own email.It has all been lost, misplaced or destroyed.And all had Value to proper resolve of my claim.

The IMOs were sent back to VA with the BVA remand-also I had suppied 10-12 copies of the initial two IMOs-My POA claimed he too presented them to the DRO- the SOC and subsequent mail from his boss shows that never happened-

also in December I emailed my vet rep to try one more time to check the c file (they have 2-3 reps at the RO)-to see if the IMOs have shown up-

I actually copied one IMO -in 2005-into the back of a letter to the Director asking for the IMOs to be considered. No answer.

I have talked to Regional Counsel twice about this claim.

I dont want my money back -I want the IMOs considered and acknowledged as evidence.

I want due process.

RC didnt know if this was a FTCA basis-never had a case like this-I found a similiar case from a prisoner filed in NY-

and sent it to him -

I thought he would walk over to the RO, see the IMOs in the file, send me a letter stating that and I would have withdrawn the FTCA claim. It didnt work that way.

I received two or three BS emails in return-from my POA since Dec. indicating that they had the means of checking this by looking in the c file-(of course they do) but nothing that said they would.And they didnt.

(I am saving their correspondence and going to complain to the Governor as soon as my AO claim is resolved.)

I think it is a travesty that a VA claimant has to file suit in order to get Due Process.

I believe this is a violation of every basic VA case law there is.

HOWEVER

I also believe that the sticky fingers might be attached to the hand of a vet rep on my POA.

Two of them screwed up my claim terribly and it would be to their advantage to never have those IMOs see the light of day.I am considering a Discrimination suit with the NYS Dept of Human rights-I have the forms- haven't read them yet-the last BS emails I got from my POA-asking them to do their job-and check the c file-will give me the date of last documented issue to fall into the NYSDHR statute of limits.

When I emailed Deputy Sec Mansfield in early Dec at the VBA in Wash- the claim suddenly started to get worked on again-it has been with a rater since Dec 9th I think.

I am ready for an additional IMO too if needed.I am glad you asked- I have been overwhelmed by a lab course and shoveling lots of snow and having been spending time not even thinkng about all this-

The SF 95 form explains the jurisdiction and basically how you state a claim like this.

For the Writ of Mandamus-four years have passed.

I have made attempt to have the General COunsel decide this and have to ask the VARO one more time for a decision-

in other words I have to show the court, via the writ, that I have exhausted every avenue so far- to get a decision on that claim.

That specific claim involves a legal issue that has to be sent to VA counsel as a legal question-VA counsel could not accept jurisdiction over it yet but their letter shows the CAVC that I attempted to get this claim to the proper place-to VA counsel- because VA failed to do that in 4 years.It is a legal issue.

The writ or anything else I do at this time would be more one thing to get my AO claim and the CUEs out of the raters hands-

I am biding my time.

NVLSP suggested I go there and get it straigthened out-

I will as a last resort-

My own POA has vet reps right there who live in Buffalo-and work on the RO grounds-that could do in less than an hour what I need to take 2 whole days of travel time etc to do-not to mention I am in school-

they dont have daily homework-brag that they go in and out of the VARO and talk to DROs all the time- and are paid to be vet reps.

If I have to go there to check what they are paid to do- the Gov of the State of New York will own me plane fare and a hotel bill-

I maintain this POA because I am building a case against them as I await them instead - to redeem themselves by doing one positive thing to help me get a proper VA decision.

As I said-I do believe the fault might not rest wth the RO-

if evidence is lifted out of a file as soon as they get it-how could I expect the RO to make a proper decision?

The letters and emails I have from many levels of my POA as well as the boss are atrocious and indicate they do not have knowledge of basic VA regs and case law.No wonder the local boss wanted me to apply for a job there in 2004-He probably still doesn't have a clue.

When I contacted NVLSP I told Ron that I hoped lawyers , after June, will not only look for CUES in older decisions (and hopefully the lawyer regs will allow them to handle that)

but to look for potential financial loss that occurred to the vet due to poor representation by a vet rep-which cannot be recovered by a Cue claim.I have a separate Life Insurance policy I bought specifically for my daughter-in the event of my death prior to the claims being resolved-to cover attorney fees so she can sue my POAs for negligence in the event I die before an award is made.I have it all in a special file for her to use as evidence of their negligence.

Sorry for long post-

as Ron Abrams said to me- something was Definitely wrong up there (VARO with my c file)and I believe

it started right here at the local POA office in January 2003 and has continued-to the present time.

Edited February 14, 2007 by Berta

[Vike17]

1968,

The "benefit of the doubt" docterune is probably used more at VA than you realize. One thing to keep in mind is that the benefit of the doubt is envolked when there is an equal amount of evidence in weight for the claim and against the claim.

"Wonder why the VARO consistently ignors the Benefit of the Doubt Rule; whereas, the BVA observes it. I have read a lot of BVA cases that were denied by the VARO, but upheld/reversed by the BVA on the Benefit of the Doubt Rule"

Many, many times when a claim reareaches the BVA the claiman has submited additional evidence for consideration, which brought the amount of evidence in weight to an equal proportion. Then BVA grants the claim based on the benefit of the doubt.

"Guess it is standard VA procedure to deny or degrade initial claims.... regardless of the Benefit of the Doubt Rule. I DO believe that is THE case. Isn't that PATHETIC. They do that just to discourage a deserving Vet from his rights..... and it works, most of the time"

You are so far out there in this assement! Like I've said before, there is a big difference in what the veteran thinks is evidence and what is really objective to one's claim. It's really funny when a veteran thinks, just because they sent in 100 pages of internet articles pertaining to a disability they have, they think the benefit of the doubt applies in their case. When in actuality those articles have no probative weight and do little if nothing for the claim and the RVSR must deny the claim.

I guess there will always be those veterans that think there is a VA wide conspiracy to dely and deny veteran's benefits, when there actually isn't.

Vike 17

[john999]

I bet if you ask the vet, the claims examiner and the VSO they would all say that they were abused by the system and misundertood. There is a dysfunction in the system. The VA needs the funds to do their jobs and I don't think they get the money they need.

[Berta]

I do agree with Vike-

in my case the VA would not even extend Benefit of Doubt at the DRO review because none of my evidence was addressed even though my POA claimed he highlighted the IMos I had.

This conference was the result of my asking the VSM to cue the initial DRO denial as it

did not consider my evidence and then- when the vet rep had the chance to correct this-

and told me a 'story' about how he presented the IMos to the DRO-

it was not borne out by fact-the SOC-

When the VA finds and considers my IMos and the other medical evidence-to include the FTCA report- all of it was good-I should be afforded Benefit of Doubt regs.