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

[Testvet]

Vike one day you and I really need to discuss my claim and the handling of it by the VARO I would be happy if they even read my evidence let alone thought about giving me "benefit of the doubt" I have been lied to, lied about, then told oh yea you were there but you can't prove they exposed you to anything

no I can;t because the data is all classified and they have it and have admitted much of it was destroyed in congressional testimony and they refuse to even read the EP|A reports on the toxins found on Edgewood Arsenal

My claim is a travesty of justice all the way around from Oct 2002 thru today....

[Vike17]

Testvet,

Like Stretch's claim(s), I suspect your beef is probably with the DoD and not VA. The Edgewood experiments from when you were there also fall under the Project 112 program. The DoD has been less forthcoming with those experiments and the circumstances surrouding them than they have been with the SHAD events. I have done some research on this and have to say the DoD seems to be dancing around the issue alot. Hell, the VA is having a hard time getting the needed information from DoD to correctly adjudicate the claims that are now surfacing about those experiments. The DoD just doesn't seem to want to release the needed info to anyone.

I read somewhere (I forgot exactly where, though) that out of the total amount of people that took part in those experiments, which I can't remember exactly how many there were, only about 400-500 hundred have been notified by VA of the possibility of health probelms associated with Edgewood. This was primarly due to DoD's reluctance to release all of the names of those individuals. I don't know if the VA has been able to obtain any more in the recent past from DoD, but the DoD seems to really lagging behing on this.

In your case, from I can remember from the old board and your posts here on the new one, you are having a hard time proving that you were actually in the test facility being tested at the time the tests were administered. Your hopsital stay from the end of June through the two weeks in the begining of July seem to have put you at odds with the DoD records of experiments that were done during that time frame. I suspect that until the DoD gets their records and stories straight with you and the VA, it will be an uphill battle. To achieve your service-connection, I would start with having a sweet Jesus talk with your Congress person about how to finally get the DoD to do the right thing. Again I suspect your beef probably should be with the DoD and not VA.

Vike 17

[Berta]

The VA can deny the vet Benefit of Doubt without enough evidence to weigh- and of course if they do not acknowledge your evidence, there is nothing on your side of scale so they dont even extend this reg to you-

that is what they told me- even though I had sent them plenty of evidence and 2 IMOs at that point.

(meaning it appeared in the VA's decision at that time that my vet rep lied too)

The VA allows 60 days to respond to a SOC-

it took me years but by continually SOC responses in the 1990s I succeeded on my claims-these days my SOC responses-all with evidence and regs attached- were not even read-

except one they said they were using for the formal I-9- I wrote back-No Way -and then sent them a formal I-9-with a statement of their illegal errors on page one of it-

In the numerous submissions of the evidence they have failed to consider -in my case- I certainly sent them the BOD regs- 38 4.3 and 4.6 and even M21-1 statement from their own handbook as to how they are to follow these regs-

I suggest that you do this too if needed and maybe in your case they will actually read what you send.

I actually expect a proper decision this time- maybe I suffer from an illusion but

if the rater looks at the remand request I made, the IMOs, and all of the medical evidence (and legal evidence from the FTCA case) I will succeed.

Or at least I will get some VA crapola that I can counter with another IMO-

All of the suggestions you are considering are very good-

(just dont change your name to mine- so it all doesnt go into a shredder)

I posted these regs etc in a prior topic.

Edited February 18, 2007 by Berta

[john999]

Just think.....if you file for a CUE the benefit of doubt rule does not exist so they can just deny it and tell you to go to hell or the BVA or Court. If the VA did not use the benefit of doubt none of us would ever get SC'ed for anything because they would just deny everything and say to hell with you. I mean if the VA denies a good claim so what? Do they have to pay interest when you finally win the claim....no so why not deny them and hope you give up. They act like an insurance company.

[Josephine]

I just happped to spot this case on benefit of the doubt.

A win for Dr. Bash, thought some may want to read this.

http://www.va.gov/vetapp06/files5/0634966.txt

Josephine

[Berta]

This why I raised Hell in 2005-and continue to fight for my rights

I still have the letters and emails to and from my POAs.

When you are told by VA that your evidence does not even raise to the level to consider BOD and you have significant IMos and other medical evidence they dont even acknowledge-

your claim is in the crapper- and if you have anyone like my POA -they offered no explanation of how this occurred after 2 DRO reviews -and my vet rep was present at each one-

some wannabee even responded to me via email from the main state POA office that the Bash opinion was apparently not appropriate so this is why VA ignored it-

They probably never had a claimant with an IMO from Dr. Bash before.

Craig did not take this BS from some vet rep lightly-I sent him copy of it before he prepared his second IMO.

In my case the FTCA report alone should award the benefit- along with the med recs-

I mean VA could not even diagnose heart disease and strokes right- so how can some VA "expert" read only 3 med recs from the files and opine the veteran did not have diabetes.

She did state Rod was a definite risk for DMII (based on the 3 1990 med recs) but failed to even read the autopsy showing conditions causing death due to diabetes-

there is no other medical etiology he had that could possibly have caused these two concurrent disabilities- atherosclerotic heart disease and ischematic brain strokes -of a diabetic origin-there are many types-but I did much research on this-

but for undiagnosed, untreated diabetes.Symptomatic and documented in med recs for 6 years.

If the VA expert had treated him in his lifetime, based on her opinion-she would have commited malpractice and killed him too.

I think I am actually used to VA crapola- they gave me all sorts of problems before I succeeded in my last claims- re-opens of the veterans claims-

their denials always taught me a lot-

this situation however has ramifications beyond VA-

I actually thought I had good vet reps-but they do not even have a copy of my claims-

the former rep handed them back to me-

never made a copy- you would think I would have thought something was odd-but didnt-because he said -it all goes up there anyhow- and I had sent the claim to RO already-Jan 2003-then when I got the DRO review their rep at the RO ignored the first review and I had to prove that they held my POA-

apparently the initial rep I had told them I was not represented by them

(yet I was also working on some claims for him that he had -as a volunteer!)

If the VA never gets your med evidence in the c file-meaning someone makes sure it gets lost or destroyed-

it is up to you unless you have a real vet rep- to find what is missing and then send it in again-

and again until they acknowledge it.

I will get a resolve eventually from the VARO-

but I am determined to get an explanation from my POA too-

The salaries in their local office total over $100,000 per year and then the phone, fax, email etc- office expenses (my vet rep says his email didnt work and apparently his phone was broke too-he could only call the VARO and DROs for other claimants but not for me.)

I await my IRS return info from my tax person and I know I will have to pay state taxes again.

And when I pay them I am also going to find out why a state POA, based at VAMCs like this one in Bath, and handling many may vets a day,doesn't have a grasp on basic VA 101.

Edited February 19, 2007 by Berta