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The “Benefit of the Doubt” Rule Helps Veterans in VA Disability Compensation Cases

Logo of U.S. Department of Veterans AffairsWhat is the “Benefit of the Doubt” rule in VA benefit claims?

In VA Service-Connected Compensation claims, the law requires the Department of Veterans Affairs to resolve questions in the veteran’s favor when the evidence weights equally for and against the veteran.  This method of weighing evidence (also called “proof”) is known as giving the vet the “benefit of the doubt.”  The law states:

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

See 38 U.S.C. § 5107(b); see 38 C.F.R. § 3.102 (2016).  The term used in the law to describe this balance of facts is “equipoise.”

What is “approximate balance”?

Of course, the rubber tends to meet the road over the phrase “approximate balance.”  As you might expect, VA tends to think things are not in balance, but weigh against paying claims when the veteran thinks the opposite.

The law tell us that evidence on a given issue is in “approximate balance” when the evidence for and against a finding on that issue is “almost exactly or nearly equal” or “too close to call.” Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001). The Court of Appeals for Veterans Claims has called this a “unique” standard of proof in American courts, because it is lower than any other burden in American law for someone trying to prove a claim.  Unlike a criminal case, where the state must prove its case beyond a reasonable doubt, or even a civil case, where a plaintiff must prove by a preponderance of the evidnece (more than 50%), a veteran must merely show a 50-50 chance.

Why such a low requirement for veterans?  It is simple:  respect for their service.

The reason for this is “the high esteem in which our nation holds those who have served in the Armed Services.” See Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990); Henderson v. Shinseki, 563 U.S. 428, 440 (2011) (noting that “[t]he contrast between ordinary civil litigation … and the system that Congress created for the adjudication of veterans’ benefits claims could hardly be more dramatic”).

This rule applies to any part of the claim, i.e. any component issue of the overall claim.  Making veterans prove their claims  by only an “approximate balance of positive and negative evidence” demonstrates that our country has “taken upon itself the risk of error” in awarding benefits to veterans. Gilbert, 1 Vet.App. at 54 (citing Santosky v. Kramer, 455 U.S. 745, 755 (1982). “By tradition and by statute, the benefit of the doubt belongs to the veteran.” Id.

The Benefit of the Doubt Rule applies to medical concepts too.

Giving veterans the benefit of the doubt extends to groundbreaking and debated scientific concepts too.  There is no requirement in the law that a particular medical theory or argument be accepted by all health care providers.  On the contrary, the law mandates only that the evidence be in equal on both sides to give the benefit of the doubt to the veteran.  It does not require a consensus of scientific support.

Instead, through the enactment of section 5107(b)’s low standard of proof for all issues material to a claim for veterans benefits, Congress has authorized VA to resolve a scientific or medical question in the claimant’s favor so long as evidence for and against that question is in “approximate balance.” Imposing a higher standard of proof would be counter to the benefit of the doubt rule.

See Wise v. Shinseki, 26 Vet.App. 517, 532 (2014); Jones v. Shinseki, 23 Vet.App. 382, 388 n.1 (2010) (differentiating between legal and medical standards of proof); Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (Board may consider the extent to which a theory is accepted in the scientific community, but “in a merits adjudication, the evidence need only reach equipoise”).

In the recent case of Hauzer v. McDonald, No. 15-3589 (2016 WL 6408042 (Vet.App. Oct. 31, 2016), the Veterans Court reversed a Board decision which rejected service connection for a veteran with Parkinson’s Disease.  The veteran took the position that his exposure to a chemical solvents (Toluene) was the cause of his Parkinson’s Disease.  A VA Compensation and Pension (C&P) examiner selected by the VA to examine the veteran had “acknowledged the various studies and reports as to an increased risk of developing PD due to solvent exposure, but noted they did not establish a “clear medically established causal connection.” The Board of Veterans Appeals accepted this, and rejected the veteran’s claim, stating that “the scientific community has not accepted the essential premise that toluene can be identified as a cause of PD.,”  The court rejected this conclusion, and explained: “in stating that the articles and medical opinions are not “definitive” as to causation in the veteran’s case, the Board has applied a higher standard of proof than that required by section 5107(b).”

Takeaway:

Congress created a low standard for veterans to prove entitlement to VA benefits.  Vets can use the “benefit of the doubt” rule in their favor to win VA service-connected disability compensation claims by showing that the evidence supporting approving their claim is at least equal to the evidence supporting a denial of their claim.  VA cannot raise that standard higher than the benefit of the doubt rule, and if it does, veterans have grounds to appeal VA’s denial of their benefits.

 

If you need an experienced VA benefits attorney to help you with your denied VA claim, call us at (866) 282-5260.  We represent veterans in all 50 states, and offer free consultations and contingency fees (you only have to pay us if you recover benefits on your appeal).

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    I am an 82 years old, 100 % TDIU veteran. TDIU granted in March 1997. My health is not good. Is there any way to speed up my Board of Vet. Appeals decision sent in on 12-5-2018 with a motion for 38 U.S.C. 20.900 (c) (1) (2018)? Land line phone is 352-478-0983. Cell phone- 904-829-7501. e-mail-works sometime, sometimes [email protected]. Also, if denied will need representation before the Court of Appeals . D.C. CORSON,

    Mr. Corson: We tried to call you a few times to discuss your situation, but were not able to reach you beyond leaving a voice mail. Please feel free to call us to discuss your VA claim toll-free nationwide at (866) 282-5260.

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