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VA’s Benefit of the Doubt Doctrine Explained

  1. VA’s Benefit of the Doubt Doctrine
  2. VA’s Standard of Proof (“at least as likely as not”)
  3. Regulations and statutes that express the Benefit of the Doubt Doctrine and Resolution of Reasonable Doubt
  4. Benefit of the Doubt Doctrine applied to VA Claim Evidence (for example, C&P exam results vs. a private doctor’s opinion)
  5. How VA Weighs Evidence
  6. Favorable Findings: Competence, Credibility, and Probative Weight
    • 13:36 Viewer Question: What does “probative” mean?
    • 16:04 Favorable Findings in the Legacy Appeals and AMA (Appeals Modernization) Systems
  7. Viewer Question: What to do if you have two competing medical examinations (a C&P exam from VA and an exam from a private doctor)
  8. Viewer Question: Does the Benefit of the Doubt Doctrine help when a veteran’s service records are lost by VA?
  9. Benefit of the Doubt Doctrine applied to VA Disability Ratings
  10. How can veterans use VA’s Benefit of the Doubt Doctrine to their advantage in their VA disability claims?
  11. Cases in which the “at least as likely as not” standard of proof does not apply (for example, Clear and Unmistakable Error (CUE) arguments)

Video Transcript

Jenna: Good afternoon and welcome to CCK Live. My name is Jenna Zellmer, I’m an attorney here at CCK, practicing veterans’ benefits appeals. Joining me today are Maura Clancy and Emma Peterson, they’re also attorneys at CCK, specializing in veterans benefits.

Today we are going to be talking about VA’s Benefit of the Doubt doctrine if you have any questions or comments, please feel free to leave them in the comment box below and we’ll do our best to answer them. You will also, link to some important resources that we discuss in the comments, as well. So, you can follow on there and go to our website at CCK-law.com for more information. Let’s jump right in.

Maura, what exactly is VA’s Benefit of the Doubt doctrine? When we talk about that, what are we discussing?

Maura: The Benefit of the Doubt doctrine refers to the standard of proof that applies in VA claims, so The Benefit of the Doubt is the idea that if the evidence is, generally speaking, equal or in equipoise then, the idea is that VA is supposed to grant the claim, even if there’s a balance of negative evidence and positive evidence. If there’s any question about whether the evidence is enough to substantiate the claim, they’re supposed to be granting it.

It’s a tie scenario, so the tie will always go to the veteran that’s how we talk about it in shorthand. It is unique, we’re going to talk later about how it differs from other standards of proof but it’s definitely something that’s part of the non-adversarial nature of the disability benefits process, they’re not requiring you to prove or hurdle a very high standard of proof to succeed on your claim.

Jenna: Great, what is the standard of proof you mention that a little bit, what is the center proof for a proven VA claims, Emma?

Emma: The standard of proof for VA claims is probably, the lowest standard you’ll find in law, At least as likely as not which means you just have to show it. It’s a 50% or more likely that what you’re trying to prove happened, either for service-connection or even for an increased rating, At least as likely is not, any more nearly approximate this next rating so it is a low burden of proof and that fits in with The Benefit of the Doubt.

It’s everything’s 50/50, all things speaking being equal, the veteran should win. Maura mentioned that’s different than other legal standards and you’ve probably heard just through general exposure to TV crime drama, Law and Order, whatever you watch on TV, there are other standards.

Everyone knows that there’s a beyond a reasonable doubt standard for criminal cases and that’s the highest standard you’ll find in law, sometimes civil trials or lesser criminal trials will have clear and convincing evidence or preponderance of the evidence and that means a 51%, or maybe even higher but the lowest standard really is, at least as likely is not, 50/50 and again, that goes to the non-adversarial nature, Pro-Veteran System that occurs at the agency.

Jenna: Great, I think when you hear about VA’s Benefit of the Doubt doctrine, a lot of times veterans will look to VA’s rules and try to find that particular phrase. I think of it more, as an umbrella that is pervasive throughout a couple different regulations and statutes. Maura, where do we find these resolutions of reasonable doubt, Benefit of Doubt statutes and regulations?

Maura: There is a statute and there is a regulation that talks about how all reasonable doubt needs to be resolved in favor of the claimant, that translates to if the evidence is equal, like we’ve been talking about if it’s in equipoise, that’s the word that’s used, I think. Then, the veteran needs to prevail not the VA or the veteran shouldn’t lose. I think the statue is in title 38 section 50 107, I wrote that down before today, in case anyone wants to refer to it.

Jenna:  Yes, I think a lot of times veterans like to know exactly and in gives them all a little bit more assurance when they’re talking to VA that they know they’re talking.

Maura: Right, and there’s other regulations, also in title 30 of the Code of Federal Regulations you can look to 3.102 and 4.3 but like Jenna said, this it’s not as if you have to cite these specific regulations when you’re filing a claim or making arguments for VA to say, “Oh well, we should be applying The Benefit of the Doubt in this case.” This is something that applies to every case, this is the operative standard of proof that applies.

There are a few exceptions for different types of claims, where the standard is different for very narrow circumstances, we’ll talk about those later but generally speaking, if you’re filing a claim for service-connection, VA has to apply the standard of proof that is in their regulations and in the law, which is that if it’s 50/50 you should prevail and if they’re requiring you to show 51% of the evidence is in favor of your point of view, 75% or they require totally conclusive proof all of that is wrong. Doesn’t matter what you say, we’ll talk later about ways to bring up this issue and your pleadings but I definitely agree with Jenna, this is what applies pervasively.

Jenna: Right. I think it’s just there, you can find it, it’s part of- I think you mention earlier VA is not an adversarial system. You find it in a bunch of other of different statutes or different regulation too. So, you’re not really going to go and find one particular rule that says, “Benefit of the Doubt.” When we talk about The Benefit of the Doubt doctrine we’re talking about the whole system and all the different regulations that talk about this approximate balance of good and bad evidence.

I think we’ve been talking a lot on theoretically, so I want to bring it down to earth a little bit and talk about how exactly you would apply The Benefit of the Doubt doctrine when you’re looking at a claims file and when the Board or the rating officer is looking at the evidence. So, how exactly- can you give an example, Emma? Of how The Benefit of the Doubt doctrine, that’s a little bit of a mouth full would apply?

Emma: Sure. For example, let’s say you are filing for service-connection and you go to one of those VA’s disability exams, a compensation and pension exam, and for whatever reason the examiner finds that it’s less likely than not, that your disability is due to service. You then take that exam, you go see your own treating doctor and they come to the opposite conclusion that in their opinion it is, At least as likely as not that your condition is due to service.

If those two exams are equal, we’ll get into this a little bit more detail in a few seconds. If those two exams are equal, they have the same type of rationale, both examiners are equal competency, they’re both, let’s say, orthopedist, they’ve both gone to great schools, they both explain their rationale in detail. Those exams really are equal, then VA should be granting you service-connection, just because one the VA examiner doesn’t make that evidence inherently better or stronger than your private treating examiner.

That being said, that doesn’t really happen in real life, that’s not how claims are decided, unfortunately. They probably should be but VA, the Regional Office and then the Board itself gets to weigh the value of each evidence, they put it on a scale and figure out what’s entitled to more weight and to do that they look at the competency of evidence and the credibility of the evidence, then they assign one particular piece of evidence, maybe more probative weight than the other.

Oftentimes you’ll see, maybe not in a Rating Decision so much but you’ll see in a Board decision, the Board member will decide that the VA examiner had a better rationale, they cited to medical literature, they review the veterans service records whereas, maybe the private examiner just provided an opinion with no rationale.

The Board is allowed to weigh those two pieces of evidence and pick one over the other, so in that case, The Benefit of the Doubt would not apply because the Board has specifically found one piece of evidence is stronger than the other, so they’re not equal. That can be difficult to, I think, understand and overcome but just know that if it is truly that perfect scenario where you’ve got both doctors with rationale and they’re both equally competent and credible the tie should go to the veteran.

Maura: Just to add to that, I totally agree with Emma’s assessment that is how it’s supposed to work. If you have two pieces of evidence that are, generally speaking, ones positive, ones negative but they’re equal, that’s a classic Benefit of the Doubt situation where the claim should be granted.

The real issue comes in the way that the evidence is weight, so it’s not enough just to expect a grant if there’s two pieces of favorable evidence and two pieces of negative evidence, so they should balance each other out, it really does go to how VA is assessing them and that’s where were all see the issues.

Just because they’re saying that there’s two opinions, one positive one negative and they’re denying your claim, doesn’t mean that they’re not applying The Benefit of the doubt doctrine, it just means that they’ve probably, maybe they happen but they’ve probably decided that the negative piece of evidence is better for some reason and then you have to pivot toward, attacking their reasons for making that finding.

Jenna: Yes, I think you bring up a good point because I think a lot of times veterans will submit their own evidence that is really favorable and they think it’s slam-dunk, right? They know that VA has to apply The Benefit the Doubt, they’ve submitted all this evidence and then they get an unfavorable decision and they’re really upset because they thought that The Benefit of the Doubt meant a little bit more than it actually does in practice.

It is really important to not just kind of count pieces, tally up all the favorable things, then tally up all the negative things and they come to a conclusion. It’s more about the substance of that evidence.

Maura: I was just going to add not to get too much into the weeds but they are supposed to be applying The Benefit of the Doubt when they are reviewing individual pieces of evidence if there’s any uncertainty surrounding the evidence, so to Emma’s point, sometimes the Board say will weigh and exam, they’ll say, “It’s not really clear if this private favorable examination was based on a review of the claims file, so we’ve decided that it’s not as probative as the VA exam. Right there is a problem because they haven’t given you or they haven’t really given the examiner The Benefit of the Doubt but he did review the claims file, he or she did review it, so it is, as Jenna said before, definitely an umbrella, it’s like a lens that they’re supposed to be looking at claims through and they commonly don’t do it correctly.

Again, just trying to be on the lookout for exactly what the issues are in a particular case can be helpful because just The Benefit of the Doubt alone is not going to get you through at the end of the day, sometimes certain evidence.

Jenna: Right, I think in the last resort, it’s kind of a catch-all at the end but really what you should be focusing on is making substantive arguments and submitting evidence and things like that.

Maura: Absolutely.

Jenna: We mentioned how the Board or how the Rating Office would weigh the evidence, so when they’re weighing the evidence, they’re making findings about the probative value of those evidences. Let’s talk a little bit about how VA makes favorable findings about what they find probative.

I think Emma’s going to take this one because there’s a legacy- I mean, we’ve talked a lot about legacy claims and talked about the AMA in a lot of other Facebook Lives, so we have a lot of information on our website about VA’s recent regulation changes but because of those recent changes the way that VA treats favorable findings is a little bit different now, so Emma, do you want to take it?

Emma: Sure. Under the legacy system and under AMA, I think I’ve talked this a little bit, VA makes two assessments when determining probative weight meaning, how much does this evidence way towards or against your claim, like I said, look at the competency and that has to go with, is this person competent to talk about the issue?

You as an individual, veteran or layperson, probably aren’t competent to opine on a complicated medical diagnosis but you can clearly talk about how your symptoms impact you in a day to day life, you can talk about simple things like, “Well I know I broke my arm because the bone was sticking out.” Things like that, you’re absolutely competent to address that.

Competency has to do with whether you’re qualified to talk about the issue and there’s credibility, is it consistent with other pieces of evidence in the file? Is there some reason to doubt the credibility? There are specific hurdles VA needs to clear before they find someone incredible or find a doctor or any type of expert evidence, piece of evidence, incredible. That often is a whole other area you can mine for legal mistakes.

Once those two things are discussed, we talk about the weight of evidence and whether it’s probative or not. So, the Board or the RO finds a piece of evidence competent and credible, that’s favorable to the veteran if it’s in your favor. If they find that it’s competent and credible your report of an in-service incident where you slipped, fell and hurt your back, that’s going to be a favorable finding. Those are the types of things that are favorable findings.

Under the legacy system, those findings if the RO makes that finding, that’s not binding on the Board of veterans appeals if your case has to go up to the Board. They’ll then De novo review all the evidence and make your own favorable findings.

I’m going to stop quickly to answer Barry’s questions because this is an important question, we keep saying the word, “Probative.” and I was trying to explain or clear, I know I botched it. Probative means- I mean, how do we divide this down? It’s hard to say because you say, “Probative.” So many times, in evidence and law school that it just gets drilled into your head, you can’t get it out.

Jenna: Probative means intending to support.

Maura: Right. Does it prove or disprove any fact, make it more likely or less likely that something happened something occurred. It’s proof.

Jenna: It has bearing on what you’re trying to show. So, if the Board finds something probative, it has probative value, they’re assigning that a lot of weight and considering it and in the claim and it’s not as necessarily just taking it for granted but saying, “Okay, we have assessed that this evidence is relevant, it’s favorable or unfavorable.” And it tends to disprove or prove the better ends claim.

Maura: Sometimes it works on a sliding scale you’ll see the way that they talk about probative evidence, so I’m thinking specifically at the Board because they do at VA when you get a decision the analysis that we’re talking about is usually coming from a Board decision. You’re not going to see this level of details typically in Rating Decisions. But they might say that one exam is more or less probative than another exam based on a number of factors or they might say that a certain piece of evidence is slightly probative but another is highly probative.

As Jenna and Emma said, it’s whatever tends to show the certain fact or conclusion that they think is applicable or the reality in this case but it’s also a little bit tricky because when VA weighs the evidence, it becomes more difficult to make arguments about reasons why the weighing of the evidence was wrong, so the more detail they give, can be more difficult to overcome.

Emma: Right. I think the simple way of think about it is, they gave one exam and check on the other exam got a check plus. So, they’re both probative but one is more probative or stronger than the other, that’s what we mean when we say probative, it’s a good question, thank you for the ask. That was in my brain, like, “I’m seeing this word over and over, I hope it makes sense.”

Jenna: Yes, it’s a word that we see all the time and we forget that like non-legal people don’t speak the same languages as us sometimes, so we always have to remember that.

Emma: Thank you. But back to the difference between legacy and AMA, so favorable findings under legacy system are favorable in that decision but they don’t bind the rest of VA for all of time if your decision goes from the Regional Office up to the Board, the Board gets to relook at everything and they can change our minds, they can say, “You know what? We don’t think this evidence is credible, we don’t think that this examiner provides a good rationale.”

They can just do something different De novo review means, from the beginning a new look at everything. The only time in the legacy system that favorable findings of fact could not be overturned as if you appeal a decision from the Board to the court, so if the Board made a favorable finding saying, “We find the veterans in service incident report competent and credible.” The court couldn’t then for some reason reverse that favorable finding of fact, that’s a rare exception though that’s the one situation in legacy.

Under the AMA, the Regional Office is supposed to be actually typing up in each Rating Decision. At the end of each section, if you have multiple issues on appeal they’re supposed to explicitly tell you any favorable findings they’ve made because those several findings are going to be binding on the rest of VA going forward. If they decide that you’re in service report of slipping and falling is competent and credible, that’s supposed to be typed up at the end of your decision under a heading that says, “Favorable findings of fact.” Then the Board, if for whatever reason your decision gets there, cannot change that, that is binding on VA on a Supplemental Claim lane, the Higher Review lane. That’s a really beneficial good change that came under AMA, because I think it just clarifies things, it just makes things the same and consistent, that things for better.

Maura: Let’s the veteran focus on what still needs to prove. You don’t have to continue to work on demonstrating that you had an in-service incident when that’s been conceded already, and you might not know that in the legacy system, so you continually writing statements about what you experienced in service, but instead you can focus on getting a medical exam, making sure that you have a current disability and those are the other elements, I think that that’s a good, good breakdown. We actually have a couple of questions, the first one I think was about if you have two competing VA exam, and a private examination, I think it was Tom who asked that question. I think that demonstrates exactly what you were talking about earlier when we said it’s not just about having two pieces of evidence, one says one thing and one says the other, it’s really about what those pieces of evidence say and how the Board weighs it. Do you have something to add to that?

Emma: I think that just know that, inherently there’s no treating doctor role. That means your treating physician doesn’t get automatically get a bump up because they treat you, and there’s also no VA examiner rule although sometimes that’s hard to believe, but there’s no VA examiner rule that says a VA exam is inherently better than a private exam. As long as everything else is equal, again the tie should go to the veteran, but nine times out of ten that’s not what it’s going to happen. They won’t tell you necessarily the Rating Decision, but once you get to the Board you might get an explanation saying, “Well, the VA examiner reviewed all these things and the private exam just says one conclusion without any rationale.”

Maura: Just to Emma’s point, it’s important to try to figure out or unfortunately wait until you get a Board decision with more rationale that explains why they’re affording more weight to the negative exam, and then once that happens you can usually tell why they’re favoring the negative evidence over the positive evidence. If they’re just saying that the negative evidence is better without really giving an explanation, doctors can disagree about things and that’s completely fine, professionals disagree about possibilities and causation opinions all the time. If it appears that it’s just a preference that’s unsupported for the negative opinion, or maybe because it came from a VA examiner, maybe point out the fact that doesn’t hold any weight on its own and it’s really about whether the favorable opinion is credible and competent enough to be treated as probative evidence so that you should get the benefit of the doubt, since there are those two competing pieces of evidence.

We have a lot of other resources about VA exams and getting a private exam some thought in the record, but I think one of the things that it’s really important when you get a private exam is to get a copy of the VA exam, so that your private examiner or your private physician can look at that examination and really go through it, and explain why he or she disagrees with the negative examination. That’ll put you in a better position than just having to have the Board weigh two pieces of evidence you can actually respond to the negative examination.

Emma: You need to ask for that because VA is not going to send it to you automatically. Talk to your service officer, talk to whoever you work with, accredited claims agent, attorney or if you’re doing this on your own, make sure that you go after getting a copy of that, because like I said they’re not just going to automatically mail it to you.

Maura: It’s not just your doctor that is in a position to comment on the opinion, sometimes obviously laypersons without medical training can’t give medical opinions, but sometimes if you get a copy of your exam, you will notice some mistakes, some inaccuracies. I’ve seen in a lot of files where a veteran will obtain a copy of an exam and we’ll notice that the examiner misrepresented the veteran’s statements, or maybe they left out some critical information. What the veterans have done in those cases is respond in writing to the VA just to let them know that the exam contains inadequacies, that statement goes to the probative weight of the exam itself, so by the time the case gets to the Board and the Board says, “This is the most probative evidence.” They have to account for your criticism of it and the things that you pointed out that are problems with it.

Jenna: That’s a really good point. We have another question from Floyd, “If the veteran’s and medical and personal records have been lost or can’t be located by VA. How does this doctrine work and can they use it to possibly grant service connection?”

Maura: Unfortunately, this happens a lot. There was a large fire at St. Louis facility awhile back and a lot of veterans’ service records were lost. I mentioned it’s an umbrella and so there is a heightened duty for the Board, for example, to provide adequate reasons of basis when it’s denying a claim where the service records have been lost. That’s I think one way that the benefit the doubt doctrine applies in the setting, it’s not necessarily that the Board has to grant service-connection because the records were lost, but they do have to provide more explanation about why they couldn’t find the records, why they couldn’t assist the veteran in some other way and why they can’t grant the claim. Do you have something to add?

Emma: I think that that’s a really tough situation to be in and that’s what we see from the Board, they’ll cite the case that tells them they have a heightened duty and then that’s it. That’s a really hard position to be in, I certainly suggest reaching out to whoever you want to work with on your case about that issue if you are missing service records or service personnel records to see if something else can be obtained besides your personal records. Buddy statements are helpful in those cases, trying to get even your record, newspapers articles, anything else contemporaneous to your service that could help, would be great but that’s a tough situation to be in but like Jenna said, there’s no automatic presumption of service connection. The benefit of the doubt doesn’t go that far.

Maura: But also, doesn’t mean– I think that the flipside of Floyd’s question was just mean, “I’m going to continue a little bit denied forever and ever?” It’s always possible that VA is just going to continue to deny claims, that’s why we all have jobs. Part of what Emma said was that there are other ways to prove it besides your service records and depending on what your claim is, in addition to the heightened duty, VA has presumptions in place for veterans who were participating in combat. There are ways to say that even though you can’t prove that you were at a specific location during a combat situation, if your unit was there, you’re supposed to be assumed to have been there. Things like that, so even if your personal records aren’t there you can still use the VA, is not an adversarial process and some of the more proclaiming regulations to support your claim, and to supplement the record with your own statements.

I think this is a classic example of the law is pretty good, they have a heightened duty when the records are lost, seems like things could work out for you and I think VA sometimes sees it as the opposite which is, “The records are lost, so now we don’t have enough information or enough evidence to support a grant.” The analysis is done improperly a lot. Unfortunately, sometimes it falls on the claimants in these positions to do some digging on their own and again as Emma said, lay statements, buddy statements, any other resources that you have that would support your statements about where you were at a certain time, or something that you believe was documented in the records that have been lost all, of that is helpful and that’s probably going to be necessary when there’s no evidence for a VA to go off of.

Jenna: Great. I think we’ve talked a lot about some of the limits of the veteran doubt doctrine but let’s talk about it, I think a lot of times what we’ve been talking about so far is service-connection cases, so let’s touch a little on how VA– How this benefit of the doubt doctrine applies when you’re seeking a higher rating. Maura, do you want to go and–?

Maura: Sure. In increased rating cases, if you have presented evidence of the severity of your disability and you’re seeking a higher rating than what you already have assigned, there is a regulation, it’s in the Code of Federal Regulations 4.7, wrote that one down as well, and this regulation says that whenever there’s any doubt about which evaluation you should be assigned or which rating you should be assigned, you have to pick the higher of the two that could apply. If it seems like you’re in the middle say, you have a psychiatric condition and you’re seeking a higher rating and you currently have a 30% rating, if the evidence shows that you meet some of the criteria from the 30% and some of the criteria from the 50%, and it could be said that you’re more closely approximate the 50% then you should be awarded the 50% rating. There’s also another regulation, it’s section 4.21 which says that for the more fully described grades of disability, it’s not expected that you meet all of the parameters. That doesn’t apply to all diagnostic codes, there are some codes that require you to meet a certain amount of the criteria, and the idea is that they’re written in a way that puts you on notice about, but the flip side of that is and the point here is that they are supposed to be looking at all of the evidence, and if there’s a question about what rating you should get, they have to give you the higher one.

This feeds into not only the benefit of the doubt doctrine but also the non-adversarial nature of the claims process, and the lens, the umbrella with which they’re supposed to be adjudicating claims. Definitely can apply in the increased rating context, again it’s not a bad idea to be mindful, I think the diabetes code for example, is one that requires you to check off all the boxes for the higher criteria so it is possible that they will be more strict with some ratings, but generally speaking if there’s a toss-up, you should get the higher rating.

Jenna: Okay. What can we leave our listeners and our viewers with? How can they use this doctrine to their advantage when submitting their claim either for a service-connection or for a higher rating? What do we want to them to take away?

Emma: I think one takeaway is to not make this your sole argument. Don’t submit something to VA and say, “Under the benefit of the doubt, you need to grant me a service-connection.” There’s other things that need to happen first before you get there, so I think just keeping in mind the benefit of doubt it’s like we’ve been talking is an umbrella or a lens that catches over everything, and you can then build to that. If you can explain why and again this requires a little bit more work, then maybe you should have to do but if you’re concerned about it, you can certainly write something explaining why maybe your favorable evidence is just as good as maybe the unfavorable evidence, and therefore the benefit of the doubt should apply, or maybe your evidence is better than and benefit doubt doesn’t even need to come into play, because you already are outweighing the negative evidence. Keep it in mind as an ending or concluding argument, at the very least the evidence is in equipoise and you should grant this service-connection, but I wouldn’t start with it or really lead with that or have it be your sole argument because like we’ve talked about, there’s a number of ways VA can decide that it’s not even going to be for application.

Maura: I would just say that just because there’s bad evidence in the file, a negative medical exam in the file or maybe there’s an outdated exam that doesn’t check off as many symptoms as you have today if you’re going for an increased rating, the bad evidence doesn’t mean that you have to lose the case. The standard of proof as we talked about is not beyond a reasonable doubt, it’s not clear and convincing, it’s not a preponderance of the evidence.

Emma: Not a reasonable degree of medical certainty.

Maura: There’s no standard like that where you have to be showing an overwhelming amount of proof to your point to be able to overcome whatever evidence that VA has may be generated that’s negative. You can submit evidence of your own, you can rebut the negative evidence that’s in the file and all of that– The more that you can do to chip away at the probative value of the negative is going to work out for you in the end. Don’t give up if you get a negative Nexus exam, some people see that they get an exam from a VA doctor and they review it, and they become very discouraged because the VA doctor doesn’t see their side of it, there are ways to prevail.

We’ve had cases where VA will send a claimant for exam upon exam, upon exam and their examiners are all saying the same thing, and all the opinions are negative, there’s usually a problem with the exams. If you really feel that you’re entitled to benefits and you really think of certain conditions related to service, don’t let the negative evidence necessarily stop you think about what you can do to make a better case for yourself.

Jenna: One good examination went in the face of all those bad the exams just because there’s more of those bad evidence, if there’s something wrong with every single one of those exams it doesn’t mean that you’re going to lose so. I think that’s a good way to end it.

Maura: I was just going to add to, I said something earlier that I just want to follow up on. We were talking about whether this At least as likely as not standard didn’t apply in any context and I had said, “There’s a very narrow or limited amount of examples when the standard is in at least as likely as not.” We have materials on these other issues, but there is such a thing called “Motion for clear and unmistakable errors.” This is one example. If you feel that there was basically an administrative deficit, or almost like a typo, a problem in the assignment say of an effective date, and you want to try to revise an old decision based on the presence of clear and unmistakable error, that’s the standard that you have to meet, it has to be clearly and unmistakably erroneous.

That’s an instance when a different standard of proof is going to apply, those are very limited though. Just be mindful, if you see words like “Clear and unmistakably.” That’s the evidence or a burden you need to meet, that’s not going to be viewed through the lens of the At least as likely as not standard.

Jenna: To be pretty clear.

Maura: Right, to be very laid out. I think that goes back to Emma’s point that, this should definitely be something that you keep in the back your mind but it definitely should not be the first thing that you argue to VA, because there’s a lot of other stronger ways to make your case and to try to get your claim granted.

Jenna: Good. Well, thanks for joining us today. Again, my name is Jenna, and Maura and Emma are here too. We will see you next week.

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