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

[Objee]

Berta,

It's not just what is listed in the SOC but also what's listed in the evidence set forth in the original decision letter. I compare the two and bring any listed evidence I need that's omitted in the SOC back into the argument as "countering evidence". In my case, a favorable IMO was listed as evidence but ignored in the SOC writeup. I wrote it into the reconsideration request and the DRO bought the equipoise argument. Kept me from just getting an SSOC.

Sometimes this may help swing the rating.

Ralph

"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.

[Berta]

Objee -I stand corrected -you are absolutely right-

even if they list it- that doesnt mean they considered it.

VA listed in one of my denials under evidence "letters from the claimant".And never considered them at all in the decision narrative.

I wrote back "letters- my pettootee " -or words to that affect-

These were not "letters'--- they were probative evidentiary documentation of bonafide medical evidence.

(maybe they stall me because they get a kick of out of my responses.Common sense and fact of law has -over the years - provoked some funny stuff from me-as I broke down their blatant disregard for established law and fact.)

What an interesting ploy they now have to call medical evidence "letters from the claimant."

Also even if you send them an internet abstract that positively associates your disability with

something secondary- lets say it is something that is probative in its own right (Like the way the VVA won the first hep C air gun case)

they might list it under evidence as "internet printouts from the claimant" and then never address it at all.

Obvioulsy Monte Wilson (VVA) would have never accepted that and he got his vet the proper award-Hep C to air gun -with an internet printout.His vet had 2 tattooes too- but still that study he used (I posted it here ) did the trick. It was probative and competent medical evidence.

I am glad of your correction to my post- I bet many vets think that they actually consider what they list in a decision under evidence.

If they do not consider it, and not say why in the narrative why they did not consider it ,they are violating 38 CFR 4.3 and 4.6 and all evidentiary and basic VA 101 case law and regs.

And of course if they dont even consider it a claim does not raise to the level to even try to consider Benefit of Doubt.

As VA case law says the BOD belongs to the veteran.

VA case law does not suggest however in 38 USC or CFR that the vet has to arm wrestle with them to even consider it.

I actually wondered if there was a way to have my medical evidence printed on toilet paper or towels at the VARO-to put into the raters bathrooms.

I figured this might be one way to at least get my evidence considered.

I already felt - that they had crapped on it anyhow by their chronic failure to acknowledge it but f they sat down with it in their hands they might read it.

Edited February 21, 2007 by Berta

[Ricky]

Yes there is a reason and bases in which the VA is required to provide information on the evidence they considered PROBATIVE AND RELEVANT and how they used it in conjunction with the claim. The key here being they considered PROBATIVE AND RELEVANT to the claim. They should discuss any medical information they did not consider Probative and why they did not consider it Probative. From reviewing prior cases it seems the court has given them an out by saying the VA does not have to rehash all evidence contained in the file only that they considered probative and relevant to the decision at hand. Believe me they use this out to the max as that was one of my arguments to which they told me - we did not consider the evidence relevant to the claim, therefore, no discussion was required (SOC entry). The only way to keep these buggers honest is to have a change in the law. I have hounded my congress dummy for the past year to entertain the idea of having VA employees held responsible for their actions. I am in law enforcement and assure you that if I violate the U.S Code or internal regulations I am going to get to know the inside of a jail cell pretty quick. Even if we were only able to hold them to something as small as paying interest on retro payments if it could be proven that a violation had happened in the denial of a claim you would see a lot of the RO's crazy antics and stupid denials come to a quick halt. Although we should be able to hold them responsible both in the criminal and civil systems a small step such as interest payments would clear out the back log fast. Now you will find some RO's that will not use a liberal interpertation of the court's ruling to deny a claim, but some such as the one that services me will do so at the drop of a pen.

[Objee]

M'lady, you're the best, but sometimes we get too involved in what we're doing and forget the basics. Forest for the trees. Even though the VBA rips the law and rapes due process, it can still be brought to a standstill with the proper approach. I'm learning more every day about how to "finess" the law through VA practices. I also don't intend to put up with their crap any more than you and the others here do! Hopefully, we're all MOUNT UP AND FOLLOW ME leaders! (And good followers, too!) Take care, keep 5, watch your 6 and God bless!

Ralph

Objee -I stand corrected -you are absolutely right-

even if they list it- that doesnt mean they considered it.

VA listed in one of my denials under evidence "letters from the claimant".And never considered them at all in the decision narrative.

I wrote back "letters- my pettootee " -or words to that affect-

These were not "letters'--- they were probative evidentiary documentation of bonafide medical evidence.

(maybe they stall me because they get a kick of out of my responses.Common sense and fact of law has -over the years - provoked some funny stuff from me-as I broke down their blatant disregard for established law and fact.)

What an interesting ploy they now have to call medical evidence "letters from the claimant."

Also even if you send them an internet abstract that positively associates your disability with

something secondary- lets say it is something that is probative in its own right (Like the way the VVA won the first hep C air gun case)

they might list it under evidence as "internet printouts from the claimant" and then never address it at all.

Obvioulsy Monte Wilson (VVA) would have never accepted that and he got his vet the proper award-Hep C to air gun -with an internet printout.His vet had 2 tattooes too- but still that study he used (I posted it here ) did the trick. It was probative and competent medical evidence.

I am glad of your correction to my post- I bet many vets think that they actually consider what they list in a decision under evidence.

If they do not consider it, and not say why in the narrative why they did not consider it ,they are violating 38 CFR 4.3 and 4.6 and all evidentiary and basic VA 101 case law and regs.

And of course if they dont even consider it a claim does not raise to the level to even try to consider Benefit of Doubt.

As VA case law says the BOD belongs to the veteran.

VA case law does not suggest however in 38 USC or CFR that the vet has to arm wrestle with them to even consider it.

I actually wondered if there was a way to have my medical evidence printed on toilet paper or towels at the VARO-to put into the raters bathrooms.

I figured this might be one way to at least get my evidence considered.

I already felt - that they had crapped on it anyhow by their chronic failure to acknowledge it but f they sat down with it in their hands they might read it.

[Objee]

I'm new at this, but in each Rating Decision (denial or low rating), there must be a section on:

REASON AND BASES:

right ?

Must the Reason and Bases list what was considered and if there is no mention of your IMO, then obviously, they disregarded it, right? What should the NOD do about that? The Reason and Bases is much earlier than a SOC because it comes with the rating itself, right. Must all Rating Decisions (denial or low rating) have a Reason and Bases section? Or, is it only for a denial? :)

Army,

You don't have to simply passively accept the VBA approach to decisions. There is still a basic legal requirement (that the RO often likes to ignore in pursuit of their agenda.) You can call them to account simply by reintroducing stipulated evidence into your appeal or DRO review request and MAKING them acknowledge it exists and must be considered. If you detail the probative value and degree of probability with authority, you can change the results in the pre-appeal or appeal process! We're not simply spectators in the adjudication process unless we choose to be. We're PARTICIPANTS if we demand to be! In short, this ain't any spectator sport. We'd better be players in the whole process!!

Ralph