Often I’ll hear veterans say the VA should give them the “benefit of the doubt” in regards to their claim.  Because of the regulatory requirements, the VA is required to follow regulations when they give the veteran’s claim a “benefit of doubt.”

So what is the benefit of doubt?  Does it mean that if there is no real evidence, or the conditions are circumstantial, the VA should grant a decision of favor of the veteran?  I wish it were easy to give a straight answer.  Like always, I’ll use the actual regulations to provide the answer.

Title 38 CFR § 4.3 is provides the basic information.  It states:

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.

Looking at this paragraph closely, the first thing that stands out is “consistent, however, with the facts…”.  That means there must be evidence.  The more evidence a veteran supplies, the less reasonable doubt is applied.  When the veteran has more evidence in favor of their claim, the veteran may have a preponderance of evidence, clear and convincing evidence, or evidence that is beyond a reasonable doubt.  Kind of sounds like a court of law doesn’t it?

The second thing that stands out, to me, is, “after careful consideration of all procurable and assembled data…”.  That means hard, written, documented, evidence of some type, must be gathered.  Back in 1973, there was a fire at the Record Center in St. Louis.  Hundreds, maybe thousands, of records burned.  Those veterans whose records were burned no longer have service documents should they want to develop or submit a claim.  There are several other instances when veterans may not have documents supporting incidents that happened in service; too many to discuss in a blog.  I’m sure you can come up with other situations when the service may not have documented something that could be very important, e.g. SEAL Team missions, special ops, reconnaissance, etc.  Regardless of the situation, documentation is required for every claim.

The last item that stands out is, “See §3.102 of this chapter.”  Guess what?  Now we’ll look at 3.102.

§ 3.102   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 service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

This regulation starts off the same as 4.3 but something very important is referenced, “By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.”  This is called relative equipoise.  Sorry about the legal term.   Relative equipoise is easier than saying the entire sentence.  It basically means if there is a 50/50 chance, or a flip of a coin, about the claim, the claim will be found in favor of the veteran.

Of course there is more to discuss.  I need more pages and don’t want to bore people to death.  I’ll write more on this subject in another blog.

 

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