Finding the right evidence for your VA claim can feel like an overwhelming task. In this video, we break it down and explain what kinds of evidence VA requires to prove service connection for a disability compensation claim, where veterans can find that evidence, and how to counter unfavorable evidence that may be in your VA file.
Chapter 1: VA’s Evidence Requirements
- What is all this evidence for? What are we trying to prove in a VA disability compensation case?
- What are the elements of service connection?
- What is the “burden of proof”? What does “as least as likely as not” mean?
Chapter 2: Types of Evidence: Service Records
- service records (like your DD214, locations of service, service medical records, performance evaluations, etc.)
- and how to get them(using a VA Form 180, a Freedom of Information Act (FOIA) request, Navy Deck Logs, and other tools)
- VA’s Duty to Assist veterans (in the Legacy Appeals system and the new Rapid Appeals Modernization Program (RAMP))
Chapter 3: Types of Evidence: Medical Evidence
- medical records and opinions(like your separation exam, service medical records, VA examinations or Compensation & Pension examinations, official medical opinions, and treatment records from a private provider or your VA medical provider)
- how to get records or a medical opinion from your provider and what they need to know about VA claims (like what is a “medical nexus” and how to respond to an unfavorable C&P exam)
Chapter 4: Types of Evidence: Employment Records
- employment records(like performance evaluations, disciplinary actions, a VA Form 4192 questionnaire, etc.)
Chapter 5: Types of Evidence: Lay Statements
- lay statements(like buddy statements and statements from friends, family, or coworkers)
- and how to do them right(so that VA considers them competent and credible)
- and how to submit lay statements(we weight the benefits of using a Statement in Support of Claim form, a letter, and requesting a Board of Veterans Appeals (BVA) hearing)
Chapter 6: Other Evidence Tips
- What is the best time to submit evidence to the VA?
- What is a claims file, or c-file, and what can it tell you about your VA claim? And how can you get a copy of your c-file?
Chapter 7: Evidence for specific types of VA claims
- Post-traumatic stress disorder (PTSD), Military Sexual Trauma (MST), Total Disability Based on Individual Unemployability (TDIU) or VA Unemployability, and presumptive conditions like those for Vietnam Veterans exposed to Agent Orange
Chapter 8: Evidence at the Court of Appeals for Veterans Claims (CAVC)
- What you need to know about the “Record Before the Agency” (RBA) at the highest veterans’ court
Jonathan: Good afternoon. My name is Jonathan Greene. I’m with the law firm Chisholm Chisholm & Kilpatrick. With me today is Maura Clancy and Dan Marusak. We’re going to be discussing evidence and we’re going to pause for a couple of minutes, a couple seconds just to give our audience time to catch up.
Okay, welcome back. Again, my name is Jonathan Greene with Chisholm Chisholm & Kilpatrick. I’m here with Maura and Dan. We’re going to be talking about evidence. First of all, we’re going to be talking about a lot of different types of evidence, evidence that’s out there for you to get, evidence for you to help develop. What is all of this evidence for, Maura?
Maura: The evidence that we’re talking about today is anything that’s going to help a veteran substantiate a claim for benefits. There’s a lot of different ways that veterans can go about seeking benefits from VA. Sometimes they’re looking for VA to recognize that they have a disability that’s related to their service in which case they would be seeking service connection. Sometimes they’re trying to prove that their disability is worse than their currently assigned rating. Every disability gets a corresponding rating and in order to get a higher one, you have to show that the disability is more severe than the rating that you have. Things that we’re going to talk about today, statements, medical records, doctor’s opinions, all sorts of things that we’re going to try to cover as best as we can. All of these things are what you need to show VA that you’re entitled to the benefit that you’re seeking.
Jonathan: Dan, can you tell us, what are the elements of entitlement to service connection?
Dan: Sure. For service connection, you need to show an in-service injury or event, a current diagnosed condition and then a medical nexus or a link between your current condition and the incident in service and usually that’s in the form of a medical opinion.
Jonathan: When you establish that a disability is service connected, then the veteran is entitled to compensation so a monthly monetary amount for that condition. Basically, what we’re going to be talking about today is the benefit of compensation so getting a monthly benefit, monthly monetary benefit for service-connected disabilities. What’s the standard that is required to show whether or not something is service connected?
Dan: Yes. The burden of proof for the veteran is “at least as likely as not.” That’s pretty much if it’s a 50/50 tie, and the tie goes to the veteran. It’s a non-adversarial system and if the evidence is in equipoise, the benefit should be granted to the veteran.
Jonathan: When you’re submitting this evidence, you don’t have to tip the scales, the scales have to be in equipoise.
Jonathan: There was an article today in the Wall Street Journal talking about a disabled veteran and having to show conclusive evidence that an event occurred and it kind of was jarring to those of us who read it because we’re like, “No, no, no, there is no need to show conclusive evidence. You really just need to show it is as at least as likely as not.” That’s important to know that when we’re talking about the submission of this evidence, you don’t need to show that conclusively the event or injury occurred or the nexus between the disability and the event or injury in service but it’s just that it’s at least as likely as not. Let’s get into the different types of evidence. So service records. What kinds of military service records will a veteran need for their claim, Maura?
Maura: One of the most important things that most veterans will need is the DD214. It’s their separation document. That document is important because it shows their discharge status. It shows usually any awards that they received. Sometimes they’re not always updated, 100% accurate in terms of your places of service, like they won’t list out every single place you were on active duty, but they can be helpful for that. If you’re trying to show that you served in a particular place and then your other service records could include your service medical records. Anything from service where you went to the sickbay or you went to a clinic or you even treated with a private physician. All of those records can be relevant if you’re trying to prove that you have a medical condition that started in service or was made worse by service. And then, the other thing that comes to mind would be personnel records from service in addition to the awards that are noted on your DD214, you might also have other achievement documents that show the courses that you took in service but you might also have evaluations that could show if you were missing training because you had a disability. That might be important to show that the disability started in service. Poor performance evaluations might help show the deterioration of a condition. Things like that are all relevant.
Jonathan: How does one go about getting these records, Dan?
Dan: Well, a veteran can request them themselves at the Regional Office or your representative can request it through a Privacy Act request or a FOIA request.
Jonathan: Okay. Is there a specific VA form for the service records?
Dan: There is, I don’t recall it off the top of my head though.
Jonathan: I believe it’s the 180 form.
Dan: The 180.
Jonathan: You just mentioned a FOIA request or a Privacy Act request. A veteran’s service records are going to be specific to that veteran but there are other such things as like Navy deck logs that you might want to go and obtain as well because they can corroborate some of the things like a PTSD stressor.
Dan: Yeah. If a Navy veteran has a PTSD stressor that’s related to something they witness on a ship, maybe like a fire or a plane crash or a death of another veteran or a fellow shipmate, they can try to obtain the deck logs which is basically the watch officer’s record of all significant events that occurred on the ship. Like I said, VA doesn’t go out and get those themselves but they are available. Some of them are available online. You can also request that VA go out and get them themselves.
Jonathan: Again, this is Jonathan Greene with Chisholm Chisholm & Kilpatrick. I’m here with Maura Clancy and Dan Marusak. I would like to refer you to our website cck-law.com. We are going to cover a lot of material today and some of it has been specifically broken down in various blogs that we’ve done, other Facebook Live videos, YouTube videos. You can find a lot of good stuff there if you are inquisitive about any specific topic. One thing I was going to mention is sort of the interplay of the service records, things like deck logs as well, and 3.156(c) which creates an avenue to obtain an earlier effective date sometimes for a condition and we have written- completed blog posts about that. Please check them out because it is a great way to obtain additional compensation by getting the effective date for a service-connected condition brought back. Let’s talk about the duty to assist. What is this duty to assist and how does it apply?
Maura: You want me to take that?
Jonathan: You want to take that one, Maura?
Maura: Sure. The duty to assist just refers to VA’s duty to help veterans obtain evidence and also to notify veterans of what evidence they need to submit in order to be successful on their claim. For example, if a veteran files a claim that just says I would like service connection for my knee disability, the VA is supposed to send them a letter that says this is what you need to show that you should receive entitlement to service connection for your knee disability. In addition, if the issue that you need to prove is a medical one, VA will usually have to give you a medical examination or a C&P examination. We have plenty of posts I believe on the blog about C&Ps in more detail and how they can be used, but generally oftentimes, VA’s duty to assist requires them to obtain those examinations, obtain records that you identify. It’s pretty broad and if you feel as though you can’t submit the information that you think would be helpful, VA has a duty to help you with that.
Dan: I would like to add that they have to make a reasonable effort to help you. If you don’t assist them, if they schedule you for an exam and you don’t attend the exam, they can use that as evidence against your claim for an increased rating. It’s a two-way street. They’re going to attempt to help you, but you have to meet them halfway.
Jonathan: It’s important to cooperate with their attempts.
Jonathan: We do have a question, we’ll pause for a second, from Sandy asking, “What if the DD214 doesn’t match the time overseas?” You have the DD214, the veteran says, for example, that they served in Vietnam and it’s not there listed. What can you do?
Dan: Well, I would try to show that you served there with some other documentation from service if you have it, maybe an award or something like that from your time at that location. Anything really that can corroborate that you were at that place that you say that you were whether it’s letters to family or pictures or something that can place you in the location. Maybe VA doesn’t have all of your service records. Maybe the DD214 only covers a certain period of time that you were in service and you have a second DD214 that they’re missing that you may want to inform them that that is out there. Yeah, that’s what I would suggest.
Jonathan: So use kind of anything available to you. We had talked before we went live about the use of pictures. It doesn’t come into play a lot, but if the veteran does have some sort of documentation that they served there. Sometimes we’ve been able to find newspaper articles welcoming somebody home and submitted that to help corroborate that somebody did serve somewhere but you do need to make sure that you get the entire personnel file because it could be listed in there. Just because it’s not on the DD214 but anything you can to corroborate that. Just remember that the standard is at least as likely as not. You don’t have to establish by conclusive evidence. We were talking about the duty to assist and I just wanted to kind of quickly bring up something that’s important to note and it’s a concern for a lot of people is it this Appeals Reform that is coming. The Rapid Appeals Modernization Program that’s going to be- that’s in effect now. It’s a pilot program as a precursor to the appeals reform coming that was signed into law and it will be coming into effect in February 2019. But RAMP as it’s called, the Rapid Appeals Modernization Program, is a program that allows you to utilize some of Appeals Reform. Essentially two thirds of it is open up now. One of the lanes is called the higher level review lane and then there’s the supplemental claim lane.
As far as the duty to assist goes, it is a concern of some people that in the higher level review lane, it’s as though VA no longer has a duty to assist because you’re submitting it as though it’s fully developed, everything is there necessary and then it’ll be reviewed by somebody at the Regional Office, a higher level person. And they don’t have to identify insufficient evidence and that VA has to then go get an exam. Essentially the duty to assist doesn’t apply which is obviously a concern, but I just wanted to kind of mention that. Again, cck-law.com has a lot of posts about this. We’ve done multiple Facebook Live videos about RAMP so check those out if want more information about that. Okay, let’s discuss medical evidence. Obviously, as Dan mentioned, to establish service connection you often need medical nexus evidence. What kind of medical records do you need to win these claims?
Dan: Well, you have your in-service medical records. I don’t know- we haven’t talk about those yet, have we?
Maura: I think just briefly.
Dan: You have your in-service medical records. That’s your enlistment exam and your separation from service exam as well as any treatment notes and hospital stays or anything like that that you had in service. That’s part of your service record that VA should obtain and be part of your file. Then there’s also VA examinations which I think Maura mentioned that VA will schedule you for and then private opinions too that you can submit an opinion from your treating doctor or an independent doctor that you go out and get.
Jonathan: The VA exams generally what we’re talking about is compensation and pension exams. Those are exams conducted by VA or an outside contractor under VA done for the purposes of establishing compensation and/or pension. They’re not for treatment purposes and again we have created blog posts and done videos specifically for C&P exams. Maura, how do you request these documents from a private provider?
Maura: If you are treating with a private provider, you can go directly to the provider. It becomes a little bit trickier when the provider is not at a VAMC or within VA. It makes sense for the veteran to go directly to that provider and get their records, but if that’s not possible and you send in some kind of letter to VA or you let them know that you’re treating with a private clinician. They can send a form to that provider and get your records released directly to VA. This is sort of where the duty to assist comes in. If you say that I want a higher rating for a particular disability and I’ve been treating with doctor so and so who’s not in the VA network. VA should be tipped off to the fact that those records might be helpful. They might contain information that they need to adjudicate your increased rating claim and they do have the means to go and get those records if for some reason you can’t.
Jonathan: If there’s unfavorable evidence say from a C&P examiner or something needs to be established, where can the veteran go to get a credible medical opinion? We’re talking about medical opinions that are not out there yet. The veteran needs to go and find an expert to provide an opinion. How do they go about doing that?
Maura: I think the first thing that you think of that would be the easiest is just to go to whoever’s treating you at the time. These C&P exams are done sometimes by contractors, sometimes by VA staff, but generally speaking the veteran has never treated with this doctor before. They’re hired to render a certain type of opinion. VA gives them instructions what they need to know to decide the claim. But if you believe that the C&P that’s obtained is inadequate for some reason or that you have a clinician that works with you on a regular basis that would be able to give better information or more accurate information then that’s probably the best start in terms of getting an opinion or a letter that says what the facts are and what really needs to be established.
Jonathan: It’s also probably going to be the cheapest option available if they’re going to a treating medical provider as opposed to going outside and finding another outside doctor to write an opinion for them to review their file which usually costs money. I think it’s important to note that this is a good way to rebut a negative C&P exam, but you kind of want to do anything at your disposal. One thing that we commonly do is have the veteran submit a statement describing their experience when they went for the C&P exam. Things that the examiner told them, how long were they there, did the examiner even look at them or their condition, because often times they are on their face inadequate because simply the examiner didn’t do what they probably should be doing in order to render a thorough medical opinion. Okay, let’s talk about employment records. Often times we’re trying to get compensation that matches the average impairment in earning capacity. We’re trying to get our disabled veterans monetary compensation because they’re impacted in their ability to work often times. Obviously employment comes into play in a lot of these claims in determining severity. What kinds of employment records would be helpful in establishing a claim?
Dan: I think anything that relates to how long the veteran worked at a certain location, their performance, performance evaluations of the type, and then disciplinary actions, anything like that that the employer can provide would be useful. VA often asks the veteran to provide their previous employers and they will send them a 4192 form asking an employer to fill out a questionnaire about their employment and that, like you said, is useful for TDIU and psych ratings where impairment of working ability and adapting to work-like situations is important.
Jonathan: As we know it’s important to get copies of those 4192’s submitted by the employers because if they do contradict something stated by your client then you’re going to want to clear that up so it doesn’t become a credibility issue. The other thing I was going to mention is we’re going to talk about lay statements. A good way to get evidence of the veteran’s inability to adequately function in a work setting is to get statements from coworkers. Coworkers that could explain what accommodations were provided or any issues that they can remember happening. Statements are a great way to help establish the severity of a veteran’s condition. We have a question from the audience asking, what if they didn’t perform a separation exam? If they didn’t do a separation exam and you’re trying to establish service connection, what are some things you can do?
Dan: Well, it depends on I guess the type of injury or event that you’re claiming, but if you can point to another treatment note or something like that in service or have a lay statement that corroborates a new event or injury in service. Another way to just establish that the injury or event occurred in service. It doesn’t have to be– often times the separation exams don’t note the conditions that the veteran is claiming and often times the conditions don’t manifest till years later after service. Not having a separation exam is not really too much of a make or break situation I would say.
Jonathan: If it is close enough to discharge, you can establish that the condition exists to a compensable degree within a year?
Dan: Right. If you have treatment notes after service or treatments notes that looked back and say the veteran reports that they had this condition for so many years or whatnot that can be helpful as well.
Jonathan: Okay. We’re going to talk about lay statements, forms of testimony that we’re going to be using. Actually, let’s just pause. We got another question from the audience. Rick was treated by multiple VA clinics. Are medical files hard to get? I think as Maura alluded to earlier, if they are treating at the VA medical centers, I guess ironically, those are almost easier to obtain and should be incorporated into the file but do you want to explain how you just go about getting those?
Maura: Well, like we talked about before, you can go specifically to wherever you’re treating and ask for your records. Another way is to be as clear as you can with VA and tell them, “This is where I’ve been treating. My treatment there pertains to this disability,” and if you can give them a date range. Anything that will help them get those records for you is better for you in the long run. Another thing too is that if you take the time to spell out where you’ve been treated and then VA continually denies your claim without getting those treatment records, you at least have notified VA that you think the treatment records are important. They might be important for your claim and VA can’t just ignore your statements without explaining why they don’t think it’s necessary to get the records. It can definitely be difficult especially if you’re treating at multiple different places, but to the extent that you can get any of those records yourself, you should. It’s not difficult. I can see how it might be time consuming. The records are probably very long. The VAMC records tend to be so.
Jonathan: For Rick out there, I think as you go on continuing treating at different facilities, documenting where you were and when you were there and for what conditions is going to be your best way to, down the road, obtain those records so that you’re not having to go back and say, “I think I treated here around this time.” The more specific you can be as Maura stated, the better off and the easier the process is going to be obtain those records. Back to lay statements, what is a lay statement? Anyone want to talk about that?
Dan: Well, I consider a lay statement any form of statement from anyone other than a medical expert. Friends, family, the veteran themselves, a buddy statement from a fellow service member, coworkers like you mentioned, just a written statement to VA on behalf of the veteran explaining their symptoms or what occurred in service.
Jonathan: You mentioned anything other than a medical expert. What are the type of things that this is relevant for, a lay statement?
Dan: Pretty much anything other than a nexus opinion. A veteran or someone is competent to report on something that they observe. As long as they have knowledge of the situation, they can comment on it.
Jonathan: The veteran can’t self-diagnose, but they can explain what the symptoms are because they are observing and experiencing those.
Dan: Right. Family members can do so as well. They can comment on how many times the veteran has the symptoms, the frequency of the symptoms, the severity and all that.
Jonathan: What makes that competent?
Dan: That they have personal knowledge of the situation and it’s plausible for one thing.
Jonathan: They should be deemed competent unless there is evidence to suggest otherwise.
Dan: Right. It’s consistent with other statements in the record I would say as well.
Jonathan: What about credibility? Does credibility ever come into play?
Dan: Yeah of course, that goes to the consistency that I just mentioned. If you have a statement that is contradictory to your other statements in your record, whether it be a written statement, or statements made to a VA examiner or in a Board hearing. You basically want all of your statements to be complementary of each other. Otherwise VA could find that you’re not credible and then not take any of your testimony into account.
Jonathan: How does competency play into it? How does that practically influence the veteran and affect their claims, or more specifically their monthly benefits? If a veteran is found incompetent, what has to happen?
Dan: If a veteran is incompetent, then a fiduciary has to be appointed to manage their financial affairs and that unfortunately is a long process for VA to appoint a fiduciary and it can get pretty complicated. Try to avoid having to deal with a fiduciary if possible. You want to maintain competency.
Jonathan: Okay. How do you actually go about submitting this evidence? I mean is there a form for lay evidence or is it just a free for all?
Maura: VA has a form, it’s called the Statement in Support of Claim form. If you want to submit something on a VA form to VA, you can use that form. Basically, it says at the bottom that you certify everything in it is true and then you have your narrative section where you can write anything you want. I think it’s probably also available as a PDF if you want to type something online, but you don’t have to do it on a special VA form. You can submit a letter to VA. You can- anything in writing that’s going to get there, that can be added to your file will be considered a statement.
Jonathan: Do we want to get them to sign it?
Maura: It should be signed. I mean I don’t think there is any hard and fast requirement. But it needs to be clear who it’s coming from. It’s probably best to sign it. I mean at that point, it doesn’t seem like it will be too much of an extra step to go ahead and sign it. But there’s no special language really that needs to be included. If you submit something to VA talking about whatever it is that you want them to know and you indicate that it’s from you or if it’s from somebody else, they indicate it’s from them. How they know you, why they are giving their statement, etc. Those are the most important details.
Jonathan: We typically will get our statements, we want to have the veteran sign the statements and submit them in writing. As Maura stated, to our knowledge, there is no requirement that they are signing it or that it is notarized or anything like that. We are talking though about written lay testimony. Let’s talk about hearings. Hearings are available currently under the Legacy System and will be available under Appeals Reform. So what are some of the benefits and drawbacks of requesting a hearing? What’s the big obvious one?
Dan: Well, the benefit is you get a face-to-face with a Board judge. Of course that has some benefits to it. They can see your expressions, how important it is to you, things like that. But here at the law firm, we tend to shy away from hearings and go to statements. For one thing, hearings take a long time to schedule. You get put on the Board’s docket and then wait for a Board hearing for months or sometimes years. A statement can be completed in a matter of hours and sent in. Also, the veteran doesn’t have to travel when you’re doing a statement. Hearings are usually at the Regional Office or Washington, D.C. Statements can be completed over the phone with your representative or the veteran can just type it up themselves. You can be more focused in a statement I think. I think when you’re talking to a Board judge, you can get off track easily. You might not be able to focus on the important issues in your case. You might leave something out. You could be misinterpreted and being able to write down exactly what you mean is pretty important I think.
Jonathan: Dan hit on the big issue we have with hearings is you request a hearing and often times you’re waiting years, not just months, to have it scheduled. If that day doesn’t work or it’s not a good day, then you’ve kind of missed your shot. Lay statements, the veteran can write those up and submit those in a matter of hours. The other issue with hearings is they can be very taxing depending on the issue that we’re talking about. Providing live testimony about a traumatic experience in service can be very taxing on the clients and it’s something you might want to consider whether it’s worth putting your client through as opposed to having them write about it and then submit that statement. We do do a lot of hearings and we have some success with those and I think the Board members do a good job with the hearings. I do like the face-to-face component of it. They just unfortunately take forever to schedule, but you can do both. You can get a hearing, find out that we forgot to discuss something and then just submit a statement, a supplemental statement in addition to that testimony.
Dan: As long as it’s consistent.
Jonathan: As long as it’s consistent. We don’t want any credibility issues.
Jonathan: When is the best time- so we’re talking about a lot of evidence and right now under the Legacy System, there’s not really specific rules about when you can submit the evidence. You can kind of just submit it anytime you want prior to a decision being issued and it should be considered. But what’s the best time strategically to submit the evidence
Maura: I would say that the best time is after you’ve gotten a denial or two, would you agree?
Jonathan: I mean I think you don’t want to just operate blind. I think you submit your claim and the VA is going to make a decision. Usually they are going to provide a decision that indicates something that’s deficient if they are denying it. At that point, you can kind of figure out what you need. As far as the timing goes, I agree it’s good to get a decision and figure out what they feel they need. Because usually we feel when we’re submitting a claim that we have a valid claim right then and there. They might disagree and the decision could provide some indicators of what they need. What’s another strategic time to submit evidence?
Dan: Well I think once you’re- if you’ve appealed all the way through the VA system, you’re post VA-9 and you’re at the Board, your file’s been certified at the Board. You really want to take a closer look at what you have in the record because after the Board makes their decision, you are not able to add anything.
Jonathan: The record is closed.
Dan: The record is closed. That’s kind of your last chance to get a statement in or get a medical opinion that’s necessary. Once the file is certified, actually post VA-9 at any point, is really when you should start taking a close look at the record.
Jonathan: How important is it to get the last word in? Say, you’ve submitted evidence then VA goes out and gets a C&P exam that is negative and it says something disputing it. How important is it to then get a rebuttal?
Dan: I would say pretty important. Unfortunately, it happens a lot where you don’t realize, the veteran might not know that something has been added to the file, especially when they are close to the VA-9 Board stage. If something negative does enter the record at that point, you definitely want to rebut it.
Maura: I think it’s also helpful just for your own resources and your efforts, if you submit everything right up front and then VA goes and gets an opinion that sort of undercuts the arguments that you were making or if you’re trying to show that your disability is this severe and then they get an exam that basically says, “No, it’s not that severe.” It’s always great to have that second opportunity to correct whatever they are going to rely on in theory to deny the claim. It also saves you more time at the back end to sort of review everything at once, and make sure that you have everything covered.
Dan: Additionally, VA can’t develop to deny either. If you think the record is complete and VA continues to go out and get negative medical opinions or something of the sort. That is a legal issue that you can bring up.
Jonathan: We’re talking about submission of evidence and timing. We did discuss the decisional document which will actually list the evidence, the relevant evidence or the evidence used. You have the decisional document, but where do you get all the other stuff they’re talking about and how do you know it’s complete? What I’m getting at is, what’s the c-file? What is the c-file or the claims file and how do you get it?
Dan: Well the c-file is VA’s record basically that includes everything from the service records that they obtained, all the medical evidence that they obtained, the VA examinations, your private medical opinions. Anything that you submitted. Then, pretty much all the correspondence between the veteran and VA. All your decisions, notification letters things like that, are all in a record that they maintain now on VBMS, their internal system. I think we mentioned before, you can get it through or you can request that at the Regional Office or through a FOIA request or Privacy Act request.
Jonathan: It sounds like it’s pretty important to get a copy of that c-file, the claims file to make sure that you have everything you need or at least to tell you what you’re missing.
Jonathan: The c-file or claims file, as Dan had mentioned, is located at the Records Management Center. They should be able to provide you a copy of that if you submit a Freedom of Information Act Request or Privacy Act Request. Another way is, as Dan mentioned, in the VA’s Veterans Benefits Management System. If you have access to that, VBMS, that should contain all of the documents in the c-file. If you trust that it does, we often do not and prefer to get a complete copy of the c-file from the Records Management Center. Bottom line, you want to get a copy of that c-file and you need to look at it because not only for the claim that you are focusing on, there might be a lot of other stuff in that c-file that isn’t being properly addressed and then you can follow up on those claims as well. Let’s talk about some evidence for specific types of claims that’s important to know because there are – let’s talk about PTSD which is obviously a big one. What do you have to show to establish a PTSD claim as opposed to just say direct service connection?
Dan: Well, for your in service incident, it needs to be a PTSD stressor for one thing. There’s a regulation that if your stressor is related to a combat experience and you can show that you served in combat, then the veteran’s lay statement alone should be enough to establish that.
Jonathan: Combat experience, you’re presumed to have gone through some traumatic experiences.
Dan: Correct, yes. You don’t need a service record that specifically shows or verifies the exact event that you’re referring to. Maybe a firefight or something of that sort but if you can show through your DD214 that you served in Afghanistan in a combat zone, then that presumption should apply to you.
Jonathan: What about military sexual trauma? A special form of PTSD. I know that our firm worked on a precedential case that came out, the AZ case. Did you want to talk about military sexual trauma and what can be used to establish that the sexual trauma occurred?
Dan: Yeah, unfortunately sexual assaults in the military are under reported or not reported. Basically the AZ case puts the fact that, if there is no evidence of a report of a military sexual trauma, that’s not negative evidence. You can look to other things like if the veteran’s behavior changed over the course of their service, or disciplinary issues arose after the alleged-
Jonathan: Declines in performance and things like that.
Dan: Right. You can look to other evidence besides just a report to substantiate the claim.
Jonathan: Okay. We have another question from Robert. What if the VA stipulates that two tests were performed in service but they lost the results of those tests? They are not in the c-file or the National Records Archive. Any advice?
Maura: Well, I think the first thing you might want to know is what they are using the tests for so they’re just saying that these tests were performed but they don’t have the results. My first question would be, why are they relying on just the fact that tests were performed, without having the results? It seems like that would sort of be unhelpful.
Dan: Yeah, but I would also say that, I think this is probably where the benefit of the doubt doctrine comes in and if VA is admitting that they know of these tests and they can’t get, especially if they were VA tests or, what was it, from the military that they were in their possession at some point. They should give the veteran the benefit of the doubt that the evidence in those tests were favorable I would say.
Jonathan: Let’s talk about TDIU claims, Total Disability Based on Individual Unemployability. It’s a way to claim that your service-connected conditions are so severe that they prevent the veteran from being able to secure and follow substantially gainful employment. You have to have service-connected conditions and if those service-connected conditions render you unable to work essentially then you should be entitled to TDIU, which is a total disability rating, or 100%. What do we need or what do we typically submit on TDIU claims?
Maura: We submit a lot of things. This is the sort of claim that lends itself well to lay statements. The issue with TDIU is, do your service-connected disabilities, as you already indicated, do they prevent your ability to work? Lay statements are helpful to explain, “I have this disability. It affects me in this way and as a result, I used to work in this type of occupation but I can no longer do that due to my limitations”. We also think about submitting the employment information that we talked about earlier, so the forms from employers that talk about any limitations that you had at work, any accommodations they had to make for you at work. Do you want to add?
Dan: Vocational assessments as well I think from an independent examiner that can relate your service-related conditions and the symptoms and how they affect employment.
Jonathan: We had talked about medical experts, going out and getting a medical expert opinion. We didn’t really talk about a vocational expert opinion, but somebody who is a vocational expert, somebody who is a certified rehab counselor, can write an opinion taking the service-connected disabilities and explaining why they prevent that veteran from being able to work. What about the VA form 8940?
Dan: That’s important.
Jonathan: It’s required.
Dan: Yes it is for TDIU claims. It’s basically a report from the veteran of all their previous employment. I think their education level is on there, their dates of employment and from that VA, and earnings as well I should say. VA will try to contact those previous employers with the 4192 form and get information from them. It’s important to establish the date the veteran last worked and their earnings prior to leaving work because it could be under the poverty threshold and they’d still be entitled to TDIU during a period where there was marginal employment.
Jonathan: TDIU is raised as part of increased rating claims. Even if that’s established, you still want to get the 8940 in because VA does require it unfortunately, and if it gets to the Board and there is no 8940 in the file the Board will remand it to get that 8940. So you’re better off playing ball, getting the 8940 in. Can we talk about claims for presumptive conditions? What is important there? The big one is-
Dan: Vietnam veterans I would say.
Dan: Presumption for Vietnam veterans. All you have to do is establish that the veteran was boots on the ground in Vietnam, and then have one of the listed conditions in the regulations. Basically, the presumption knocks out the nexus requirement. As long as the veteran has a current condition that’s established and boots on the ground in Vietnam, they should be granted the service connection.
Jonathan: The science of Agent Orange link to all these conditions. That’s the nexus?
Dan: Correct yeah.
Jonathan: Can we talk about evidence at the Court of Appeals for Veterans Claims? Maura, Dan and myself have filed a few appeals at the Court of Appeals for Veterans Claims. Maura currently handles a lot of cases before the Court of Appeals for Veterans Claims. How does the Court, how does the CAVC look at evidence?
Maura: All of the evidence that the CAVC will look at is the same because the evidence is based on what’s in your claims file. All the things that we’ve been talking about are things that are going to eventually make their way to court. They are all relevant to court cases. The primary distinction is that as soon as your case goes to court, you’re working off of a closed record. Anything that was in your claims file at the time the Board issued a denial, and that’s the denial that you’re appealing to the court. That’s the record and nothing can be added to it. Sometimes this can be tricky because if you don’t take the opportunity, like Dan was mentioning earlier, to make sure that you get your last word in and send everything in to the Board, if you need to appeal the decision to court, the record is not going to contain those things. It’s important to get everything in at that point and then when you’re in court, the court is concerned with whether VA properly applied the law. Basically, did it make any legal errors in their decision? In trying to point out legal errors, this evidence that we’ve been talking about today is very helpful but only if it’s in the record before the Board. If you have this great vocational opinion that says that you’re entitled to TDIU but you don’t submit it to the Board, it’s not going to help you in court because by the time the case goes to court they are just looking at did the Board adequately assess the evidence they had before them at the time?
Jonathan: When we were talking about timing for submission of evidence, Dan mentioned the importance of if the file is certified to the Board, you want to make sure, that’s your last shot at getting evidence in because once the Board issues a decision, if, your only option at that point is to appeal to the CAVC, they’re going to be looking at the closed record. Just because you have the report in your hand if it didn’t get into the file, it’s not going to be in the RBA and the court can’t look at it, can’t address it. I think that we’ve talked about a lot of things. I think that it’s important to note that we’re really just scratching the surface as far as evidentiary development goes. You want to be as creative as possible. We attend national conferences for veterans advocacy and you hear a lot of good stories about how people have established that stressors occurred. People established that an event or injury happened in service and it’s important to be creative. Get to know your clients, talk to them, get to know their friends and family members because you never know where it’s going to be where you’re going to get that key piece of evidence. There’s a lot of ways to win these claims and as we stated, all you need to do is establish that the evidence is in equipoise. It’s the at least as likely as not that what they’re saying happened.
That’s all we have for today. We didn’t have any further questions. Again, I’m Jonathan Greene with Chisholm Chisholm & Kilpatrick with Maura Clancy and Daniel Marusak and thank you for watching this live video at Facebook live.