VRAB'S "BENEFIT OF DOUBT"

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VRAB'S "BENEFIT OF DOUBT"

Post  Supremedebater on Sat Jan 05, 2013 9:57 pm

This has been the subject of ridicule in front of the Ombudsmans office and spoke of in the Standing committee of Veterans Affairs. Although VRAB state that they apply the benefit of doubt provision...I have yet to see it.

Below is the extract from VRAB"S site.

Benefit of Doubt
The panel members of the Board decide each case on its own merits, and in reaching a decision, they resolve doubt in favour of the applicant as required by section 39 of the Veterans Review and Appeal Board Act (Opens a New Window). That doubt, however, must be reasonable and must derive from a careful analysis of the evidence (i.e. documentary evidence, medical evidence).

To explain further, section 39 of the Act consists of three parts:
•The first requires that adjudicators draw from all the circumstances of the case and all the evidence presented to them every reasonable inference in favour of the applicant.
•The second requires that adjudicators accept any uncontradicted evidence presented by the applicant that they consider to be credible in the circumstances.
•The third requires that adjudicators resolve in favour of the applicant any doubt, in the weighing of evidence, as to whether the applicant has established a case.

The Federal Court of Appeal has stated that section 39 ensures that the evidence in support of an application is considered in the best light possible. However, section 39 does not relieve the applicant of the burden of proving, on a balance of probabilities, the facts required to establish entitlement to a pension or award. Nor does section 39 require the Board to accept all evidence presented by the applicant. The Board is not obliged to accept evidence presented by the applicant if the Board finds that evidence not to be credible, even if the evidence is not contradicted. In these cases, the Board may be obliged to explain why it finds evidence not to be credible.

Applying the Benefit of Doubt provision

The Veterans Review and Appeal Board Act requires the Board to give disability compensation applicants the benefit of doubt in the weighing of evidence in every case that comes before the Board.

The disability compensation appeal process is designed to give applicants every chance to establish that their disability is related to military service. That being said, it still remains the applicants’ (and their representatives’) responsibility to provide sufficient credible evidence to support their claim and establish their case.

While the legislation requires that every applicant be given the benefit of doubt, that does not mean that every case will succeed or that any submission by an applicant must automatically be accepted by the Board. The evidence must be credible and must be reasonable.

Even if an applicant firmly believes his or her disability is related to military service, he or she must present credible evidence of the existence of a permanent disability and of the required relationship to the applicant’s service. For claims involving peace time service, it is not sufficient that a disease or injury has occurred during the period of service. There must be credible evidence to establish that the condition was causally related to the service, as required by the legislation.
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