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

[Mr cue]

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

 

 

[Mr cue]

I respect everyone opinion on imo and lawyers.

I understand.

I feel if you can't tell me a law that State the bva can take away the benfit of the doubt doctrine.

There is no court case bva case no even a ro case that state this.

Now if you read the extra schedulers tdiu rating.

You will see that my claim from service remain in appeal status for 8 years.

O I had a vso back than I didn't understand the va Process it sat in appeal status for 8 years with a vso.

I apply again in 2001 l was 10% 

I was granted tdiu 60 % by the dro with a new vso this time.

Going from 10 % to tdiu without going to the board. That call a here plz go away decision. Lol

I cue the he 1993 decision. 

And well this when I found out the claim from 1993 was still pending in appeal status.

So am I to believe that the new vso and the dro didn't understand that my claim remaining in appeal status.

So I have trust issues. Lol.

Last this may help others is why I post because in 2000 when I started reading Carlie Berta and other post back than.

We talk law we would go and post cfr va manual and court cases and bva cases.

Berta and Carlie and other where more experience than alot of lawyers. 

U could hire a lawyer back than and there were very few who could handle case at the cavc.

So we were are own lawyers.

Look up Carlie or Berta  post from it was about law.

That how u win cases.

 

I posted the extra schedulers tdiu rating an show smc benfits wasn't inferred back than.

When all this evidence was part of the record.

An I guess I have to pay for a imo to get the va to address my evidence.

I don't work that way

 

 

 

[broncovet]

You posted:

Quote

 

I don't understand why I would need imo.

To get a effective date by law.

 

There are "at least" 2 parts to every effective date:  

                            The latest of these:

1.  The date you applied.  (date of claim). OR

2.  The facts found, the date the doc said you were (xx percent disabled, that is, the date you met the criteria for the higher rating).  

     An independent medical opinion, especially with an exam, can render an opinion "that your symptoms (equating to a higher rating) began earlier than was previously thought.  

     This is especially true if you READ YOUR FILE, and there is some ambiguity to when your symptoms started.  

     Remember, there are 2 types of "reopened" claims:

1.  Reopen due to evidence on  PENDING claim.  38 CFR 3.156B.  The effective date here is not earlier than the date you submitted new evidence.  Source:  read the VBM or 38 CFR 3.156 b.  

2.  Reopen due to NEW SERVICE records.  (38 CFR 3.156 C).  This gives an earlier effective date.  

     The difference?  Was your new evidence "just new evidence" or was it new  service records?  Likely, since you are already SC, the problem is not service records but new evidence (38 CFR 3.156 B).  

[Mr cue]

Thanks I couldn't find the the cfr for claims open with new service records.

So are you saying I don't no the difference between a pend claim.

And one open because I gave the va the service records.

As far as the imo thing I am done with it I hope everyone the best with that.

I posted the extra schedulers tdiu rating for 8 yrs retro. I did need a imo.

The judge review my record and rule on a my evidence. 

It show veterans how thea bva decision should be and also show how equitable law is apply.

Maybe read it and get a better understanding of how to get effective dates.

 

[pwrslm]

V.ii.3.D.2.e.  Choosing Between Two Levels of Evaluation  

38 CFR 4.7 provides that where there is a question upon review of the evidence as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.

Important:  38 CFR 4.7 does not preclude application of the reasonable doubt doctrine.  When the decision maker concludes that the facts equally (or approximately equally) support two levels of evaluation such that each is as likely as not warranted, the higher evaluation will be awarded.  

2  Determining a Disability Evaluation Based on Rating Schedule Criteria

V.ii.3.D.2.d.  Considering Rating Criteria That Utilize “Such As” 

The use of the phrase “such symptoms as,” or a similar phrase, followed by a list of examples, provides guidance as to the variety of symptoms contemplated for each rating, and permits consideration of other symptoms, particular to each Veteran and condition.

Reference:  For more information on the use of the term “such symptoms as” in the schedule of ratings for mental disorders, see Mauerhan v. Principi, 16 Vet.App. 436 (2002). 

 

M21 info on this. may be useful.

[Mr cue]

 

13 minutes ago, pwrslm said:

38 CFR 4.7 provides that where there is a question upon review of the evidence as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.

Important:  38 CFR 4.7 does not preclude application of the reasonable doubt doctrine.  When the decision maker concludes that the facts equally (or approximately equally) support two levels of evaluation such that each is as likely as not warranted, the higher evaluation will be awarded

Thank I was looking for this cfr.

I think this one will win the remand at the court.

Also the statement that the benefit of doubt doesn't apply.

With no reason and base.

I have never seen a bva decision state that. Anywhere smh

[pwrslm]

The threshold on this is the intermittent issues that are noted as criteria for the 100% rating.  A lot of the noise the exam raised the point of the severity of your condition.

I failed to gather the logic the RO used that the condition more nearly approximates the criteria required for that rating.  Yes, the rating criteria for 70% would need to be present if symptomology for 100% would be considered. Criteria specific to 100% is clear, which is spelled out "Such as" in CFR rating info.

"due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name."

The threshold for 100% "IS" specific (but not all inclusive) in the CFR. I did not see any medical info in the decision you posted that would say the intermittent condition did not affect your ability to work.