Benefit of Doubt doctrine

[Ruffcreek]

Hello and thanks to everyone who have answered my questions in the past.

I have filed a claim, went to the VA for the C & P exam, got a letter stating "at least as likely as not" from my specialist and one from my private Dr.

I am now writing my own statement to sent to the VARO along with the letters from the above doctors. I am hoping I get a favorable rating right off but of course I may not.

My question is: In my statement shall I refer to the Benefit of Doubt Doctrine" or will they apply it automatically IF my claim is in a state of equipoise? Also if I should use it, what would be the correct wording?

Thanks,

Ruffcreek

[TinCanMan]

Why would you tell them what they already know? It would only appear to be a bit arrogant and you just might irritate that one in a hundred decision maker sensitive to a personal slight. You should also understand "benefit of doubt" is no guarantee of success. A physician might opine the moon is made of green cheese but the scientific body of evidence doesn't support his opinion. In that case his opinion would be discounted.

[SFC Ret]

Originally Posted by Ruffcreek

Hello and thanks to everyone who have answered my questions in the past.

I have filed a claim, went to the VA for the C & P exam, got a letter stating "at least as likely as not" from my specialist and one from my private Dr.

I am now writing my own statement to sent to the VARO along with the letters from the above doctors. I am hoping I get a favorable rating right off but of course I may not.

My question is: In my statement shall I refer to the Benefit of Doubt Doctrine" or will they apply it automatically IF my claim is in a state of equipoise? Also if I should use it, what would be the correct wording?

Thanks,

Ruffcreek

Well... depending on how you present your case refer them to this:

§ 4.3 Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

[40 FR 42535, Sept. 15, 1975]

And if you have a good reason and your physician can attest and agree with you, you could point them in the right direction imo. After all, you are the one that has the disability not them and sometimes it is difficult to put yourself in someone's shoes even when you got what you think are the facts in front of you.

I will say this.... The CFR is written in words; and words can be interpreted in many ways. If there is doubt, as to what those words say, then it is subject to scrutiny.

I will give you an example.

How many of you have children?

Now we all may have seen this happen.... You tell your kids to do something and ask if they understand what you just said and you leave to do what ever it is you set out to do. Now you come back and you see that what ever you had told your children was not done, yet they will insist that they did what you had told them to. And in their minds they did what was expected.

The CFR is just like that. It is a general guideline that can be interpreted in many ways. Here is a blurb from the CFR that says the exact same thing....

"§ 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described...."

That being said, imo if you have doubt and are not satisfied with the findings and decision, raise the questions because it is your disability and your life that you have to deal with. Don't take their decision as a final one or you may regret it later; and if you do, don't cry over it, when you had the chance to correct or appeal it.

Also read this portion of the CFR....

§ 4.23 Attitude of rating officers.

It is to be remembered that the majority of applicants are disabled persons who are seeking benefits of law to which they believe themselves entitled. In the exercise of his or her functions, rating officers must not allow their personal feelings to intrude; an antagonistic, critical, or even abusive attitude on the part of a claimant should not in any instance influence the officers in the handling of the case. Fairness and courtesy must at all times be shown to applicants by all employees whose duties bring them in contact, directly or indirectly, with the Department's claimants.

[41 FR 11292, Mar. 18, 1976]

Just something to keep in the back of your mind... Of course you can always appeal and have your day in court if you are not satisfied with the outcome.

[Vike17]

The reasonable doubt rule, otherwise known as the "Benefit of the Doubt," is one of the most misunderstood rules by veterans.

The Reasonable Doubt rule is one of the most important liberalizing rules that 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, that the claimant be awarded their claim. This is just like in baseball as the "tie goes to the runner." Keep in mind this doesn't mean that just because there is ten pieces of evidence for your claim and 10 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 in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn't mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of 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 and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.

Vike 17