VA’s Standard of Proof: “At Least as Likely as Not”

CCK Law: Our Vital Role in Veterans Law

Just as in any legal system, the Department of Veterans Affairs (VA) has a certain evidentiary standard, or “standard of proof,” when it looks at veterans’ claims for benefits. For VA, the standard of proof is “at least as likely as not.” What does that mean for a veteran’s disability claim, and how high a burden is it?

What Does “At Least as Likely as Not” Mean?

Each legal system has its own standard of proof. In the criminal context, the standard is “beyond a reasonable doubt,” and in civil lawsuits, the standard is either “clear and convincing evidence” or “the preponderance of the evidence.” These are higher standards than “at least as likely as not.”

The “beyond a reasonable doubt” standard means that there is no other reasonable conclusion in the case. This is the highest legal standard of proof.

In contrast with “beyond a reasonable doubt,” VA’s standard of “at least as likely as not” is a much less stringent burden for veterans. The “at least as likely as not” standard is part of the non-adversarial nature of the VA disability claims process.

For claims for VA disability benefits, veterans do not need to prove conclusively that they are entitled to a certain benefit, only that the evidence shows that there is at least a 50 percent likelihood that they are entitled to the benefit they are seeking.

For claims for service connection, this can mean there is at least a 50 percent chance that the veteran’s current disability is due to a certain in-service event or injury. To put it in other words, the veteran’s disability is at least as likely as not due to their in-service injury.

How Do Medical Nexus Opinions Factor Into VA’s Standard of Proof?

When it comes to compensation and pension (C&P) exams and medical opinions from private doctors, the “at least as likely as not” standard is key.

If a veteran receives an unfavorable opinion from a C&P examiner, it will likely say something along the lines of, “It is less likely than not that the veteran’s condition is due to their in-service injury or event.” When the examiner says this, they mean to say that service connection is not warranted, that it is less than 50 percent likely that the veteran’s condition is linked to their time in service.

If a veteran obtains a private medical opinion, whether it be from an independent medical professional or their personal physician, the doctor will need to use the “at least as likely as not” language.

A favorable private medical opinion that uses VA’s standard of proof can be helpful in rebutting a negative C&P examination, or in simply providing one of the requirements of service connection: a medical nexus.

Watch CCK Law VA-Accredited Claims Advocates Brandon Paiva, Alexandra Cerrone, and Nicholas Briggs explain the importance of having “at least as likely as not” in your VA nexus letter:

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