Developing to Deny: How to Beat Negative Evidence

 Posted on November 01, 2023 in Uncategorized

Today, we're delving into a critical topic that can make all the difference in your VA claim. We'll discuss how the VA can develop negative evidence to deny your claim and, most importantly, how you can fight back.

The Scenario

Let's start with a familiar scenario: You file for service-connection, confident that your condition is related to your service. You put in the effort, submitting studies and evidence demonstrating the connection. However, the VA schedules an examination, and during that appointment, you passionately explain why you believe your condition is service-connected. Despite your efforts, the examiner issues a negative opinion, stating that it's not related to service. Frustrating, right? But you're determined, so you seek another opinion from your private doctor or maybe even pay for one.

Armed with this new opinion, you submit a supplemental claim, thinking you've got this in the bag. But, to your surprise, the VA wants you to attend yet another exam! This is what I call the "tie-breaker opinion." The VA presents it as an attempt to reconcile evidence, but in reality, they are using it to develop negative evidence to deny your claim. The second examiner renders yet another negative opinion, disregarding your own opinion, and guess what happens next? Your claim gets denied, and you're left with two negative opinions on your record.

Developing to Deny

This whole process of the VA ordering a second exam to potentially deny your claim is known as "developing to deny." You might have heard that the VA is non-adversarial, but let me tell you, that couldn't be further from the truth. The VA is obtaining medical evidence primarily to deny your claim. Why, you ask? Well, it's partly because VA employees are incentivized based on the number of decisions they issue, and they're constrained by time limits. Denying claims is often easier for them; it doesn't require the same level of justification as granting one. The system is far from perfect and needs fixing.

Fighting Back

So, what can you do to combat this issue? Let's discuss some valuable resources and tools:

1. Email the Veteran Service Representative: Reach out to your VSR and clarify that an additional exam isn't necessary for an opinion but only for rating purposes. In most cases, there are already two opinions in your file, so there's no need for a tie-breaker opinion. You have to remember that the primary aim of the VSR isn't to help you but is to protect the government's interests.

2. Refuse to Attend the Exam: Yes, your claim might still get denied, but it was likely heading in that direction anyway. By refusing the exam, you prevent adding another negative opinion to your file. This forces the VA to make a decision based solely on the existing evidence. Moreover, you can invoke the "Benefit of the Doubt" rule, which states that if the evidence is equal, the tie goes to the Veteran. With both negative and positive opinions examining the same evidence, the Benefit of the Doubt rule should be in your favor.

3. File a Higher Level Review: Utilize VA Form 20-0996 to request a Higher Level Review. During this process, ask for an informal conference to explain that the exam wasn't necessary and cite the Benefit of the Doubt rule in your favor.

Conclusion

The VA system isn't without its challenges, but with the right strategies and a clear understanding of your rights, you can navigate it more effectively. We hope these insights will help you in your journey to securing the benefits you deserve.