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va benefit of the doubt rule

I know what you are thinking….here goes Chris with ANOTHER baseball metaphor.   Truth be told, baseball is one big metaphor for life.  More to our VA Claim purposes, however, there is one baseball game scenario that perfectly explains what the VA Benefit of the Doubt Rule is.

Have you ever watched a baseball game when a play is just too close to call?  The runner trying to get to 1st base, for example, appears to get there at the exact same time as the ball thrown to get him out.

In situations like this,  the general rule is that the “tie goes to the runner”.

But here’s the “catch” – there has to be a “tie”.

The umpire can never just say, “Eh…close enough…I’m going to give it to the runner.”

This is EXACTLY how the Benefit of the Doubt Doctrine Works in a VA Claim.

There has to be a tie, first, before the VA Benefit of the Doubt Rule can apply.

Most Veterans battling the VA have been misled as to what the Benefit of the Doubt doctrine means.  They are taught – frequently by well meaning but untrained VSOs – that the Benefit of the Doubt means something close to “blind faith”.

I hear it all the time: “I’m a Veteran, and integrity is my touchstone – the VA should just give me the benefit of the doubt.”

This is not at all how the Benefit of the Doubt works in a VA Claim.

I am going to show you how to use the Benefit of the Doubt in your VA Claim or Appeal, but first I need to tell you the “law” that applies.

VA Benefit of Doubt Rule, Explained.

All law – at least in the area of VA Disability Benefits – starts with a statute.

When it comes to the Benefit of the Doubt doctrine, the statute is 38 USC § 5107(b). That statute says:

“The [VA] shall consider all information and lay and medical evidence of record in a case before the [VA] with respect to benefits under laws administered by the [VA].  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the [VA] shall give the benefit of the doubt to the claimant.” 

Do you see the key words?  I put them in bold to make them jump out at you.

Whenever there is a statute, the particular government agency that is responsible for enforcing that law publishes a regulation.  In VA benefits claims, we find the enabling regulations in the “CFR” (Chapter 38 of the Code of Federal Regulations).

When it comest to the benefit of the doubt doctrine – also known as the Reasonable Doubt doctrine – the CFR has a regulation instructing the VA how to enforce the law laid out in 38 USC 5107(b).  38 CFR §3.102 states:

Reasonable doubt must be resolved in favor of the Veteran “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.” 

But there’s more.  Take a look at 38 CFR §4.3, which adds more information to help us understand the benefit of the doubt doctrine:

“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.”

If we blend all of the information in the statute and regs together, we come up with this KEY rule in VA Claims….

….THIS is what the Benefit of the Doubt Rule REALLY means:

When all the procurable and assembled data are in approximate balance, the tie goes to the Veteran.

It’s that simple.

Incidentally, this is why getting your C-File is so crucial – to see what the VA has (and has not) procured and assembled in your case such that you are getting denied benefits.

Stronger Evidence Trumps the VA Benefit of the Doubt Rule.

It is my belief that if you are arguing the “benefit of the doubt” should cut in your favor….

….you are fighting an uphill battle.

To get out of that required result – giving the tie to the runner, as it were – the VA Rater, DRO Officer, or BVA Judge need only figure out a way to make sure the greater weight of the evidence cuts AGAINST you.

If that happens, then there is no tie, and the “tie-goes-to-the-Veteran” rule does not come into play.

How to Beat the VA Benefit of the Doubt Rule.

Because the Veterans Court gives the VA Rater, the DRO and the BVA Judge a lot of discretion in WEIGHING evidence, you don’t want to have to hang your hat on the Benefit of the Doubt Doctrine.

Remember, a crafty Rater or BVA Judge can find any kind of negative evidence that cuts against the claim – they sometimes use another Veteran’s medical evidence to do it.

If there is no “tie”, then the Benefit of the Doubt doctrine does not apply.

How do you beat that scenario?

In a word: Lay Evidence.

Lay Evidence has a LOT of power.  And so it stands to reason that more 5-Star Lay Evidence that you have in your claim, the more the weight of the evidence will be in your favor.

So, it is my belief that Veterans should use the Benefit of the Doubt rule as a last resort – only if the Veteran cannot procure or assemble any more evidence or data to support your claim.

Here’s the thing – there’s ALWAYS lay evidence to put into your claim.

How to find and submit that evidence is far beyond the scope of this post – I have written an entire book on it.

The one one thing I want you to take away from this post is that the Benefit of the Doubt doctrine ONLY comes into play if there is a “tie” in the evidence.

Do you just want a “tie” in your VA Claim?

Or would you rather have a “slam dunk”?

4 Comments

  1. Ryan Harris

    I have heard this rule described in terms that liken it to the “reasonable doubt” rule in court proceedings. Is that a fair comparison? When the evidence presents two seemingly credible but opposing viewpoints from similarly qualified opiners, say in a DBQ from a private physician and a VA examiner, say from QTC; or a difference in ‘degree’ of disability (which affects the rating) and one of the medical opinions presents a scenario that would give the vet a higher rating, the rater is “supposed” to give the vet the higher rating (the benefit of ‘the doubt’) because there is evidence that supports the higher rating. Do you agree? Or can they just “weigh” evidence however they want, in order to create a situation where “stronger” evidence is against the higher rating? I am just a bit confused now. Thanks, Ryan

    Reply
    • Chris Attig

      Your confusion is understandable – it happens a lot.

      It SHOULD be the case that when 2 different conclusions can be drawn from the same set of facts the benefit of the doubt should be given the Veteran.

      It IS the case that the VA Raters and BVA hearing officers put a “finger on the scale” and give improper weight to certain evidence, improperly find some evidence not competent or credible, or simply ignore other evidence.

      That’s why it’s important to build your case as STRONG as you can, so that when the VA Raters and BVA hearing officers put their finger on the scale, it’s harder to overcome the strength of your case.

      Hope that helps.

      Chris

      Reply
  2. Jackie

    “regarding any issue material to the determination of a matter,” The BVA seems to put all of the evidence on a scale to resolve SC (matter). But to me this reads that each event/incident should be given Benefit of the Doubt? Restated, is the Benefit of the Doubt, clumative or singlure?

    Reply
    • Chris Attig

      Jackie, That’s a really good question. Here’s my attempt to give an equally good answer:

      The “scale” is the particular issue to be resolved. Most times, its much narrower than we think. For example, we often think the issue is “service connection”, when really it is “is it at least as likely as not that Condition X is related to the symptoms that occurred in military service”.

      In any event, if all the evidence on a particular scale is in “balance”, then the benefit of the doubt rule would apply.

      There can be multiple issues, or scales, in any case.

      Hope that made sense! If not let me know.

      Chris

      Reply

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