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]

Viking I finally got the date part straight they know I was sick for 2 weeks they also have the dates I was assigned TDY to EA from 25 Jun thru 22 August 1974 they also have the letter from DOD verifying this so all of that is straight, what is the problem now is that the 7120 men from 1955 thru 1975 are all getting letters that only state they were there, not what they were exposed to, amounts or anything else, I have sent them a list of the 77 toxins found in the water and soil of EA in the EPA study in 1978 that caused them to rder the water wells capped due to the contamination, there are 43 toxins that cause cardiovascular problems on the list, the water wells were capped in 1983 they have been dumping the chemicals there since 1917 they claimed I can't prove I was exposed to them, I know I drank coffee, kool aid, took showers brushed my teeth etc swam in the pool and all theose toxic chemicals were in the water I don't think they got put there after 1974 and before 1978 reasonable doubt would make anyone realize the men were exposed to the environmental hazards at EA. That is the truly safest base in the country from a BRAC commission they can't clean it up it's that bad.......they denied the reconsideration after getting the DOD letters here is a link to the toxic substances http://cfpub1.epa.gov/supercpad/SiteProfil...&id=0300421

By the way MKULTRA program experiments had nothing whatever to do with the 112 experiments that were done at Edgewood in 1969 the experiments I was used in was the medical research unit from 1955 thru 1975

http://www.iom.edu/CMS/3795/4913/5842.aspx this should help clarify it for you

Edited February 19, 2007 by Testvet

[Josephine]

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.

Berta,

I thought that this case my help anyone with an IMO that is not being acknowledged.

Always,

Josephine

[Berta]

Absolutely Josephine- a great find- Thank you!

When I asked the BVA for an immediate remand last year-

I based my request on the VCAA violation -which would be rendered moot-had the VARO considered my IMOs ( 2 at that time)

but I also included the third IMO which knocked down completely the VA expert- I didnt have any VA med opinion before getting the first 2- and Dr. Bash gave an additional opinion based on the VA doc that was neither cummulative or redundant-

My POA had the audacity to suggest in email (their main office)last year to expect another VA medical expert opinion-

a fishing expedition -prime facie-

the VA however has not revealed any info whatsoever to indicate they will do that.

I have the stuff and the $$$ ready to combat anything like this with another IMO that I discussed with medopinions. They can do it in a week.

As it stands

1. VA opinion-with definite support in it for the AO claim but based on 3 med recs solely- and they denied based on this IMO.The autopsy and 6 years of med care were not considered.

2. 3 IMOs that are all probative and support the claim with full medical rationale (Dr. Bash stated that the VA doc had provided no medical rationale at all)-true

3. VA's own documentation that they caused Rods death due to chronic malpractice for over 6 years-so how can a VA doc's opinion have any validity at all-

I had to get IMOs to provide "competent" medical evidence since the vet did not get "competent" care from VA.

One more reason to have them acknowledge these IMOS.

4. considerable additional medical evidence I sent with extremely probative abstracts etc all specified to the veteran's autopsy and MRI etc.

based on the same amount of study of cardiology and brain trauma that caused me to win my FTCA claim. all ignored by VA.

If they claim they dont have it- therefore they cant put it on the scale.No BOD is even considered.

The DTA regs are a travesty of justice for some of us and I refuse to accept this.

[Pete53]

I think that many Vets have false hope for Benefit of Doubt rule. There are actually a lot of riles and regulation and if your finding would open the doors for more claims good luck cause you are going to need it.

Many of the people who make decisions for the VA actually think that it is their money and not the governments that is awarded.

If you have a claim it is far more productive to prove and add evidence and good medical science as opposed to hoping its a coin flip or your expert is opposite the VA and therefore you should win.

In my experience the most important thing a claim can have is a good IMO that is bullet proof.

[Ricky]

I don't think 2 Vs 2 equals anything. It all depends on what the "layperson" who is rating your claim determines on which two are probative and the weight applied by him to your good medical reports. Things that make you go Hmmmmmmmmmm. Lets see here. You as the defender of your claim are considered by the VA as a "layperson" who can not determine any medical aspects or facts surrounding your claim, however, the VA's defender, who is nothing more than a layperson can disqualify an entire medical statement written by a board certified specialist with 30 years experience. Hmmmmm. None adverserial? unrealistic is more like it.

I have seen retired and active VA employees on other sites tout "why when I was a DRO we wer god. We saw millions of claims which qualified us to make such determinations". Sorry buddy but no medical training only equals no medical training. Maybe I can use this argument in my appeal. Why, my lord I read millions of BVA and CVA appeals. I guess this makes me "SUPER LAYPERSON" capable of issuing medical diagnosis in an instant. Just being froggy tonight!!!!!!

[Berta]

"Yes, good advise, Pete. But, how do you keep the VA "honest"? Lets say you have:Yes, good advise, Pete. But, how do you keep the VA "honest"? Lets say you have:

2, strong IMOs for your claim, SCed

2, VA C&Ps, negative SCed

Do they list these in the SOC? If not, how do you challenge the fact that the IMOs did not balance the two (equal for and against) in order to receive the benefit of the doubt?

How do you challenge the VA when they are not playing by the rules?.....

2, strong IMOs for your claim, SCed

2, VA C&Ps, negative SCed

Do they list these in the SOC? If not, how do you challenge the fact that the IMOs did not balance the two (equal for and against) in order to receive the benefit of the doubt?

How do you challenge the VA when they are not playing by the rules?....."

You get a vet rep with goonyats-

if you can find one---otherwise depend on your own goonyats-

I sure do-

you respond to the SOC with the regs that support what they are supposed to consider

(38 CFR 4.3 and 4.6)

you re-submit the evidence so they cant say they didnt get,(the director's office will have a fax number if needed)

and if they continue to ignore your IMOs- and you paid real cash money for them,

If they do ignore and refuse to send either SSOC or better SOC-I will show you how I filed tentative suit against them under the FTCA.

Then again- I wont know outcome of that until perhaps March 1st.

Also I used another additonal tactic too and this appears to have gotten results-

In a service complaint at IRIS I asked VA Deputy Secretary Mansfield VBA Wash DC to accept my IMOs and 5 bucks for priority mailing-and he could send them to the VARO.

All if a sudden my claim went to some specialist and back into the rating board.

Maybe that is what you need to do- if they deny and do not acknowledge your IMO as evidence and then refer to it in the narrative of the SOC.File a service complaint.

I think you are again projecting what "might" happen at the RO-

I certainly feel every vet should try to look at any potential way the VARO could deny a claim- so I agree that this is good idea-

but I also feel it doesnt pay to get too worked up about what they 'might' do- just develop a strategy to combat any potential way they could deny.

I am beginning to think that a good vet rep or SO should make sure that all of the evidence is

definitely in the c file at the RO before the claim is rated.

Many vet orgs have SOs right on the VARO grounds with access to their POA files.

A lot could happen even before the claim is decided-

the VCAA letter could be checked to see if it is legal ,by the vet rep, even before they send it out-and the actual c file could be checked by a vet rep to make sure all evidence is there.

We all sit in limbo waiting for a decision -

but not knowing really what they have in the c file-

In my case I can clearly identify the specific evidence they did not use- they did not use anything but part of one paragraph and their interpretation of this, which I sent and referenced the clinical record to support, was stated in my Response , as clearly a WRONG interpretation based on text in an established medical dictionary (Medilexicon) which the VA uses also.

Ricky is right- we are put into position of defense-VA is the prosecutor-

yet the regs state somewhere that a claim must be prosecuted by the vet-

meaning if the vet ignores any VA requests for more info or gets a denial and never appeals it-

the vet has not prosecuted the claim.

We have to put VA on the defensive-not the other way around- by supplying the best medical evidence we can get and prosecuting our own claims.

We are in a system that says we are not competent enough to provide medical opinions yet they can give plenty of lousy ones.

And disregard our attempts to knock these opinions down.

Because we are not competent.

I fought that idea for years to succeed in my FTCA claim.

Proves a layperson can be quite competent-

but the system has changed-

It seems to me that a good IMO right from the git go is the best bet these days- I dont think that is fair-and maybe lawyers wont either- if the evidence is more than enough to award under Beneft of Doubt, then the award should be made regardless of whether the vet got an IMO or not.

Edited February 21, 2007 by Berta