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So now the bva can say the benefit of doubt isn't applicable in veteran claims


Mr cue

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Ok this is crazy I have never seen this before in any of my case.

Ok this is the bva decision on my increase on the adjustment disorder and I guess the decision for smc l

Need of help for this condition.

 

 

The Board acknowledges the Veteran’s assertions of entitlement to an increased rating.  Further, the Board notes that the treatment records demonstrate that the Veteran had symptoms associated with both a 70 percent disability rating, such as obsessional rituals which interfere with routine activities and near-continuous panic or depression affecting the ability to function independently, and symptoms associated with a 100 percent disability rating, such as intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  However, the weight of the medical and lay evidence shows that the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating, throughout the period on appeal.  See 38 C.F.R. § 4.1

  Based on the foregoing, the Board finds the Veteran’s adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period. As such, a rating in excess of 70 percent for the Veteran’s service-connected adjustment disorder with depressed mood is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The claim must be denied. 

 

I have never seen a bva decision like this.

First told I meet both the 70 and 100 rating.

What happen to the veteran will be give the higher of the two rating

Then when is it that the bva can say the benfit of the doubt don't apply in my case. Smh never seen that before on no decision. I might be wrong

It will be remand by the court again for them to play more games  smh

 

 

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Hsve you ever considered getting an Independent medical opinion, done by a doctor who understands your type of disability? Or a strong opinion ,done by a Vocational forensic expert ?

Can you give us the docket and citation #s.

The BVA decision site has changed and was more messed up then ever this AM when I tried to find your case.

I agree it is unusual in the way the BVA stated the denial, but, as you can see here at hadit many many veterans can only get their claims into "Relative Equipoise", (Benefit of doubt) with very strong IMO/IMEs.

The CAVC does not accept new evidence but mo remand, the VA would have to consider an IMO/IME.

The Federal Gov is closed today due to the weather.

 

 

 

Edited by Berta
in cloud poor internet access
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I agree with Berta.  I have had it explained by multiple attorneys:

To "win" get a remand at CAVC "and" submit a favorable IMO to the board with the remand.  (It worked for me).  

You see, res judicata prevents you from simply continuing an appeal "until you finally find a generous judge who will award you benefits".  

res judicata:

Quote
es ju·di·ca·ta
/rēz ˌjo͞odiˈkätə,ˈrās/
 
noun
LAW
 
  1. a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.

Dont expect a board or varo decision "to tell you" this is res.  Instead, they simply go, "gee, this has already been decided".  

Remember:  The application of benefit of the doubt (or lack therof) is a JUDGEMENT CALL by the adjuticator.  

Now, "res judicata" does not apply "when there is new, relevant evidence" that was not before the previous judge.  See 38 cfr 3.156.  

This means if you submit new (favorable) evidence, the judge can, and often does, consider the new evidence and it "tips the scales" of the benefit of the doubt, in your favor.  

Yes, I know.  Few of us want to spend the money for an IMO, when "we cant be assured" the IMO will win benefits.  No, there is no guarantee.  

However, this is pretty much how it works in Veterans law.  We dont have to like it, but, if you want to change it, you can go to law school, become an attorney, judge, or congress man.  You can also try writing to your congressman that THIS system unjustly favors the Veteran "with adequate resources" (that is, money) to get an IMO.  

The tragedy of not being able to get benefits "if you cant afford an IMO" is, at least partially offset by certain law firms or even doctors who perform IMO's, who sometimes agree to allow you to pay for the IMO "out of your retro", not up front.  

My lawyer told me I needed an IMO to win it.  He even gave me a name of a voc rehab specialist, who could/did perform my IMO, and did it reasonably.  (It was for tdiu, I needed a voc rehab specialist opinion that I was not a candidate for retraining in the work force, that my inability to maintain SGE was broad, and not limited to my previous career.). 

The voc rehab specialist recommended by my attorney was "Veteran friendly".  He charged only 600 dollars, which he allowed 3 credit card payments of 200 each. (One each month for 3 months).  

I simply paid off my credit card when I got the retro.  

An medical professional, experienced and with the credentials needed, has the expertise to know "what is it". in your medical file "that brings doubts" that your claim will be approved.  And then they fix it.  

I explained how my IMO worked.  Trust me, I didnt want to pay 500 or 600 for a report either!  

I see it as similar to "buying a building permit".  They can shut you down if you try to build something without a permit.  So, you buy the permit, build it to code, and get it inspected.  

Its kinda like hiring an electrician to put your wiring in, "even when" you know how to do it.  One guy suggested doing the wiring (to code!) then have the electrician hook it up to the breaker, and sign off on it. 

Remember, your doctor supervises your medical care.  He does not have to "be there" when the nurse gives you a shot, or the pharmicist gives you a prescription.  He orders your treatment.  Sometimes, a Nurse practioner, can actually treat you, but does so "under the supervision" of a doctor, who "signs off" on the NP.  The doc accepts the liability, and usually only does so, when he feels confident the NP knows what they are doing.  

The family member of mine, who is an MD, tells me she has confidence in her NP, that she signs off pretty much all the time, because she is confident and trusts the NP.  

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Here is the docket  No. 21-00 585

I reopen the claim after it was denied 2001.

2018 It was reopen because of new service records that I provided.

Ever since they reopen it they have been all over the place.

They will not address that it was a claims reopen do to new service records or the effective dates.

Now I am told I meet both 70% and 100%. Rating.

And now I am been told I don't get benefit of doubt.

An guess the law were if there is a question on which rating apply to a veteran.

The veteran will be give the higher rating this law.

I don't understand why I would need imo.

To get a effective date by law.

And to be granted the higher of two rating.or to be give the benefit of doubt.

Last I will posted the smc s award were they shift my tdiu to the adjustment disorder to grant 3 month of smc s.

Ok if the adjustment disorder is so disabling that it meet the cretria for tdiu.

Why is it rated total than.

Well I am back at the cavc again and it will be remand again.

 

 

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I understand the imo thing it is to help get  issue service connected.

A. Imo is not going to help with getting a higher rating.

Just my opinion.

Imo are need if you don't have a record of the disability or to help show it service connected.

A imo is not going to get the va to follow the law.

And Imo is not go to make the bva follow the benfit of the doubt doctrine

So no a imo will not help in my case.

I am have already been granted smc s and l. And the adjustment disorder

An imo is not going to get the bva to address a time period before I apply 2018.

In my opinion the only time you would need a imo is when it a ?

Of a disability been service connected.

 

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35 minutes ago, broncovet said:

An medical professional, experienced and with the credentials needed, has the expertise to know "what is it". in your medical file "that brings doubts" that your claim will be approved

This is very true. Beyond that, the professional that you chose may have a strong effect on the outcome. Lawyers that specialize in Veteran Law have medical professionals that are aware of what the lawyer requests and how the wording must be done. You can go to a professional on the block and get an IMO that is just as useless as many of the C&P exams the VA provides.

I understand that you are dealing with an issue that goes back 20 years. I am not sure, but it sounds like a substantial amount of back pay would be due going from 70% to 100%. A good lawyer in your corner at this point would not be the worst decision you have made. You have been fighting the VA for years from what I understand and they have frustrated your purpose at every opportunity. Maybe it is time to seriously consider this step.

 

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Well I am not one to think you need imo after you are service connected.

Once you are fight the va on the law a imo isn't going to help. 

As far as a lawyer I will tell you some of the veterans on hadit have more experience with the law and va that some lawyers. My opinion

Now there are some great lawyer and vso. 

Now as for me I am my best vso and lawyer I understand my disability and the law that apply to my case.

I have been tdiu for over 25 years 

I apply for smc benfits and yes it's a lot of retro.

I also reopen a claim for depression that was denied from 2001. With new service medical records

The va reopen it and granted the effective date of the date I apply 2018. They will not address that it is a claim reopen do to new service records.

Or the effective date it should be granted by law.

I also ask for a increase rating on it and this is what I got u meet both 70% rating and 100% rating.

But I am give u the 70% and the benefit of doubt doctrine doesn't apply in this case.

This is from a bva judge so why doesn't the benefit of the doubt apply in my case.

Like I said I have never seen this use before.

Like I said there is a law that if there is a ? Of which rating apply to a veteran.

 the veteran will be given the higher rating. Guess that law doesn't apply in my case to. Smh.

And yes my case is about retro.

I have won 8 year retro tdiu and believe me I had to go threw the same game and things back than.

So this is new to me I just don't like all these new changes.

It make it harder to get things address.

It has been over 4 year and I have never had a conversation with anyone who could address there errors.

The court has now change this pro se veterans now get to have a rule 33 telephone conference.

Let me stop I am just going on and on.

 

 

 

 

 

 

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