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More Likely Than Not: What You Need to Know About Reasonable Doubt Rule


Tbird

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The Reasonable Doubt rule is one of the most important liberalizing rules that the VA uses to grant veterans benefits and is defined under 38 CFR, §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, the claimant is awarded their claim. This is like in baseball, as the “tie goes to the runner.” Keep in mind this doesn’t mean that just because there are ten pieces of evidence for your claim and ten against that, you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence, and there is an equal balance in their judgment. They must resolve reasonable doubt in the claimant’s favor. It also doesn’t mean that if, for example, there are five pieces of evidence in favor of a claim and only one against it, a claim will automatically be granted because there is a preponderance of the evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence determine the weight of each piece in relationship to each other and the claim, and then decide whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.

Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.

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Independent Medical Opinions by Your Private Physician

An Independent Medical Opinion (IMO) from a treating physician is often a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, a couple of things should be noted. One of the most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record, including the veteran’s SMRs. The medical professional should also state his or her expertise and additional training.

  • “is due to” (100% sure)
  • “more likely than not” (greater than 50%)
  • “at least as likely as not” (equal to or greater than 50%)
  • “not at least as likely as not” (less than 50%)
  • “is not due to” (0%)

The phrase “at least as likely as not” is the legal phrase that is needed for the VA to award service connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.

For example, if the doctor is board-certified in radiology, they should state that, especially when rendering any comments regarding radiological film studies. Also, the physician must give their rationale as to why they have reached a certain conclusion. When giving his/her rationale, the physician should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service.


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