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Attorneys Devoted to Veterans Benefits

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    EVIDENCE IS CRUCIAL, “AS LIKELY AS NOT”

    “Evidence” is a subject law students devote considerable effort in studying, and it can present complexities even to the best legal minds. But it is quite possible and useful to understand the basic concepts as they relate to the veterans claims system, which is in some ways unique in this regard. You will have a better chance of obtaining benefits from the VA if you understand what you have to provide in the way of evidence to support your claim. It is perhaps worth a reminder that VA does not award benefits based on service to country, however dedicated, or on sympathy for a veteran’s hardship, however difficult; it can award only where evidence shows entitlement.
    Evidence and elements of claims
    “Evidence” refers to the information, whether from witnesses, written statements, documents or other records, that is considered and evaluated by an adjudicator in making a decision on a claim. Every legal claim has certain “elements” that must be proved, that is, certain points that must be established as true to the adjudicator’s satisfaction before the claim can be won. Thus, in a manslaughter case, for example, the prosecutors must prove that the accused caused a death and did so through carelessness, while in a first degree murder case the prosecutors have to show that the accused not only caused the death but intended or planned for it – different elements for different crimes. In a classic veteran service connection case, the elements that must be proven are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
    Standards of proof
    The key facts of a legal claim must be proved to a particular degree of certainty, which varies depending on the type of claim. In a criminal case, the law requires proof “beyond a reasonable doubt,” that is, the decision-maker (often a jury) must be so convinced of guilt that any doubt about it would be unreasonable in light of the evidence. This is a difficult standard of proof; the view of the law is that before a person is deprived of his liberty, or even his life in some states for some crimes, there should really be nearly absolute certainty about guilt. In an ordinary civil case, such as a personal injury claim arising from a car accident or a contract dispute, the standard of proof is simply that the evidence is slightly stronger in favor of the claimant (plaintiff), even if only by a small degree. If the evidence is so balanced that the adjudicator can’t decide one way or the other, the plaintiff has failed to meet her burden and the defendant wins. Lawyers call this standard the “preponderance of the evidence,” from the idea that the evidence “weighs” slightly heavier in one direction.
    Benefit of the doubt
    When Congress established the veterans claims system, it wanted to make it as friendly to the award of benefits as it could and still require proof that benefits were appropriate. So it passed a law, found at § 5107(b) of Title 38 of the United States Code, which says that when there is an approximate balance of evidence (what lawyers often call “equipoise”) on any point crucial to the decision, the benefit of the doubt is to be given to the claimant. In terms of the evidentiary standards discussed above, this means that a veteran claimant does not have to provide proof as convincing as a civil litigant under the preponderance standard: if the evidence in a civil case were more or less balanced, the claimant would lose, but the veteran is supposed to win in that circumstance. It is equivalent to the old baseball rule: tie goes to the runner.
    Practical application; “as likely as not”
    How do these abstract legal concepts work in actuality? Let’s say the issue in question is whether a soldier hurt her head in a bad fall in service. She remembers (years later) that she had a headache immediately after the fall. A record of sick bay treatment right after the incident does not mention a head injury but discusses other more pressing concerns: bleeding and a compound fracture of one arm. A follow-up record two days later notes, in addition to the progress of healing of the arm, a small bruise on the forehead. VA might dismiss the veteran’s recollection years later as flawed or possibly self-serving and regard the absence of any mention of a head injury in the treatment note on the day of the accident as evidence that there was no such an injury. But the fact that there were more urgent injuries to address in first aid and the mention of the bruise in a record a couple of days later supports the veteran’s recollection. As lawyer for the claimant I’d argue that this evidence weighs more heavily in the veteran’s favor, that there is a preponderance of the evidence, but, at the very least, this would seem to present an approximate balance: there is some evidence of a head injury and some indicating none occurred, but neither is overwhelming. Under the benefit-of-the-doubt rule, the veteran wins.
    NEXT TIME: The special issue of medical opinion evidence.

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