Many veterans know of the existence of VA’s “benefit of the doubt” doctrine, but question how the doctrine is applied in a case.
I. What is the “benefit of the doubt” doctrine?
VA claimants have the burden to prove their claim to the VA, that is, when making a person makes a claim to VA that person has the responsibility to present evidence that will establish entitlement to the benefits that person is seeking. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA will give the “benefit of the doubt” to the claimant.” 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2010); see Gilbert v. Derwinski, 1 Vet. App. 53, 55 (1990) (the benefit of the doubt standard is similar to the sandlot baseball rule that the tie goes to the runner).
II. Does this mean the VA has to always give me the benefit of the doubt and therefore believe all of the evidence I submit to support my claim?
No, as the adjudicator of the claim, VA has the duty to weigh the evidence and determine whether that evidence if probative or not. Sometimes VA will find some evidence has more probative weight than other pieces of evidence. The “benefit of the doubt” doctrine only comes into play when two pieces of evidence are of equal weight, in that instance, VA must give the favorable evidence the “benefit of the doubt.” For example, let’s say that a veteran is trying to establish service connection for a right knee condition that developed due to an in-service fall. VA affords him an examination where the examiner reviews his claims file and determines that the condition is not related to service. The veteran then obtains a medical opinion from his doctor that is also based on a complete review of his claims file, and provides a thorough medical opinion and rationale as to why his right knee condition was caused by service. In that instance, having all things be equal between both examinations, VA should give the “benefit of doubt” to the favorable medical opinion and thus probably grant the claim.
Here’s one way to look at when the benefit of the doubt applies and when it doesn’t.
Let’s say that Joe Veteran is trying to get service connection for the arthritis in his back. Joe had an accident in service in 1968 when he fell out of the back of a moving jeep, hitting his low back. Now, 40 years later, he has arthritis in his lumbar spine and believes that his low back problem was caused by the Jeep accident. In order to be service-connected, VA rules require that there be a medical opinion that relates the currently diagnosed disability to the Jeep accident. Here, Joe gave his service medical records to his doctor who wrote an opinion saying that the current arthritis is likely due the in-service accident. VA then gets its own opinion; but its doctor says that the back problem is more likely caused by old age. In this case, there are two pieces of evidence both addressing the same question—was Joe’s Jeep accident the cause of the arthritis 40 years later. If there’s nothing about either opinion that makes it better than the other, VA is required to give the benefit of the doubt to the veteran and accept the favorable opinion.
Now, let’s change the facts around. In this case, Joe has explained that he believes the Jeep accident caused the current back problems, saying that this was the only injury he ever had to his back. In this case, however, Joe doesn’t get a medical opinion from his doctor and VA doesn’t get one either. Here, there’s no medical opinion at all answering the question about whether the arthritis was caused by the Jeep accident. Because there’s no favorable opinion, there’s just not enough evidence to allow VA to grant the claim, and no evidence to which the benefit of the doubt rule can apply.
Nancy L Foti FAQs, Uncategorized, Veterans Benefits Claims Veterans Benefits Claims, veterans disability benefits