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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 30743
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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How can the reasonable doubt doctrine be argued in an appeal

Customer Question

How can the reasonable doubt doctrine be argued in an appeal to the Board of Veterans Appeals when it has been denied in my original appeal ? The denial argues that the VA showed thru a preponderance of evidence ( I don't agree ) that the reasonable doubt doctrine does not apply ! The appeal is for right ear hearing loss & Tinnitus , as a result of a Diving Tower incident (1967) where my right ear drum was ruptured . The incident was witnessed by my Corpsman from my Sub USS Nautilus SS (N) 571 but never entered in my Medical Record but I did have a letter from my Corpsman stating to the event ( He has since died ) . I had a local hearing examiner declare the right ear hearing loss & Tinnitus was as a result of the 1967 event but the VA denied as I could not show ( In one year from my discharge ) 1969 . I can only submit "new evidence" to the Board and it seems to me that I will have to argue points of law .Respectfully Submitted Gerald Forseth
Submitted: 5 years ago.
Category: Military Law
Expert:  P. Simmons replied 5 years ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

OK, lets start with the VA policy on this. I will quote it below

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. (Authority: 38 U.S.C. 501(a))

That is a very favorable policy (it gives maximum benefit to the Vet claiming status).

What do you mean the VA says this doctrine does not apply?

Customer: replied 5 years ago.
The final sentence of the Appeal states "As the preponderance of the evidence remains against your claim , the reasonable doctrine is not for application " It seems to me that with this declaration by the VA I really will have an " Up-Hill " battle in being able to present any new evidence if they have already denied me reasonable doubt. The VA also says I cannot "show" any evidence that the Rt ear hearing loss took place within one year of separation from the service and I don't know how that can apply as the Tinnitus and hearing loss are a " Delayed " event due to the Ear Trauma that I had as a result from the ruptured ear drum caused by the diving tower event while I still was in the Service.
Expert:  P. Simmons replied 5 years ago.
The VA "reasonable doubt doctrine" is confusing. Its not the same as in a criminal trial. The standard is

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.

Instead of "reasonable doubt" doctrine, it should be called the "benefit of the doubt" doctrine. A much more accurate term.

Your better off arguing facts with the VA then trying to argue law...your claim needs to present enough evidene so that it passes the VA's standard (quoted above in bold)

To win this, you must supply some evidence that, when weighed against all the evidence in your case, forces the VA to give you the "benefit of the doubt". Evidence is evidence. Your statement is evidence. The statement from the corpsman is evidence.

You do need to link the event to the medical condition...I am not a doctor so do not know if this condition can present later (more than one year later) or not...but if it can...if its possible that the event in the Navy caused this but it simply took awhile to present...if you can show the event, and show you the condition now, I think you pass the test.

Let me know if you have more questions

Customer: replied 5 years ago.
Would a "new statement " from my local hearing audiologist ,showing that the hearing loss & Tinnitus is a cause & effect, directly related to the ruptured ear drum , help in any way. I have submitted questions to Webb Sites such as Mayo Clinic but have not received any replies and it is extremely difficult to find documentation or new evidence supporting my claim .I have requested books from my local library on " How To " in dealing with the VA. Is there anything else I should be doing ? I have an appointment with my local VA on Monday the 20th 0f June .
Expert:  P. Simmons replied 5 years ago. evidence is grounds to have them re-evaluate the case. You need to point to some evidence that there is a link from the service incident that happened to your current condition. If you can provide that evidence, you case becomes much stronger.

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