Evidence is crucial to winning a VA disability compensation claim. VA uses a veteran’s military records and medical records when making the determination on whether they are entitled to service-connected compensation. Our panel discussed different types of VA claim evidence and how veterans can use them in their claims.
What Do Veterans Need to Prove?
The types of VA claim evidence a veteran will need depends on the type of claim they are filing with VA. In order to receive VA disability compensation, veterans must show that their condition is service connected; this is called service connection. Typically, in order to prove service connection, a veteran will need to show three things:
- That they have a current diagnosed disability;
- That they experienced an in-service event, injury, or symptom; and
- A medical nexus linking their current diagnosis to the in-service incident.
For claims for an increased rating of a service-connected disability, veterans may need medical evidence or other proof that their disability has worsened.
What Is VA’s Standard of Proof?
For service connection, the burden of proof is to show that the veteran’s condition is “at least as likely as not” due to their military service. In essence, there must be at least a 50% chance that the veteran’s condition is linked to their service, and if there is a 50-50 tie, VA must decide in favor of the veteran.
Different Types of Evidence
Evidence from Service
Service records can be very important pieces of VA claim evidence for service connection claims as they can show a record of an event or onset of symptoms during service. These are some common and most useful types of service records that can be used as VA claim evidence:
- DD 214. A DD 214 is the separation document service members receive when they are discharged from service. This document is important VA claim evidence because it shows a veteran’s discharge status which is used to determine if the veteran is eligible for benefits. A DD 214 also documents any awards or commendations the veteran received and dates of service. DD214s do not always list every location the veteran served, but if locations are listed, the form can be used to prove that a veteran served in that specific location.
- Service Medical Records. Service medical records can be important VA claim evidence if a veteran experienced an injury or illness in service and is now claiming service-connected compensation for that condition. These can include visits to sick bay, a clinic, or even a private doctor.
- Service Personnel Records. These records include documentation of various achievements, educational records from time in service, and evaluations that can show, for example, that you missed training due to a condition or were noted to have poor performance.
There are several ways a veteran can obtain these records as evidence. A veteran can:
- Request the records from the VA Regional Office.
- Submit VA Form 180 to obtain relevant records.
- Submit a Freedom of Information Act (FOIA) request or Privacy Act request to obtain their records.
- These types of requests can be useful if a veteran is trying to obtain Navy Deck Logs in support of their claim.
Will VA Help Get These Records?
VA has what is called a “duty to assist” veterans in obtaining evidence in support of their VA claim. As part of their duty to assist, VA will also notify veterans of what VA claim evidence they need to obtain in order to be successful in their claim. Compensation and Pension examinations (C&P) are often ordered as a part of VA’s duty to assist.
As part of VA’s modernized appeals system alters when VA will have the duty to assist veterans in their claims. The New Appeals Process offers veterans the chance to opt in to one of three lanes to appeal a VA decision: Higher Level Review, Supplemental Claim, and an appeal directly to the Board of Veterans’ Appeals. The Supplemental Claim lane is the only lane in which VA has the duty to assist veterans in obtaining evidence for their claim.
Medical records can be important pieces of evidence to a veteran’s claim to prove that they have a current diagnosed disability to prove service connection, or prove that their condition has worsened if they are seeking an increased rating. These are some of the different types of medical evidence a veteran can use for VA claim evidence:
- In-Service Medical Records. These records include enlistment and separation examinations, as well as any hospital stays or sick calls during service.
- Private Medical Records. To obtain these records, veterans can typically request them directly from their private provider. If a veteran notifies VA that they are treating with a private provider and signs a release form, VA can request records directly from the provider to obtain the veteran’s medical records. This can be a part of VA’s duty to assist.
- VA Medical Records. VA can obtain these records directly from the VA medical center(s) where the veteran receives treatment. If a veteran wants to obtain these records themselves, they can request them directly from the VA medical center as well.
- C&P Examinations. In many cases, VA will schedule a veteran for a C&P exam to assess the merits of service connection or an increased rating for the veteran’s condition. If favorable, these examinations can be useful in substantiating a claim.
- Medical Opinions. Veterans can request a medical opinion from their treating doctor to help substantiate their claim. Medical opinions can come in handy if the veteran had an unfavorable C&P examination and wants to argue against the examiner’s findings.
Employment records can become a necessary piece of VA claim evidence if a veteran is seeking entitlement to Total Disability Based on Individual Unemployability (TDIU). TDIU is a VA disability benefit that compensates veterans at the 100% disability rate if they have a service-connected disability or disabilities that render them unable to work.
Employment records can also be helpful in claims for increased ratings, as difficulty performing a job or receiving special accommodations at work due to a service-connected condition can help show VA the level of severity of that disability.
Some employment records that can be helpful as VA claim evidence are:
- VA Form 21-4192. These forms are used by VA to gather information regarding a veteran’s past or current employment. The forms are sent to the veteran’s employers for them to fill out basic employment information such as dates of employment, as well as details regarding the veteran’s ability to perform the job or why the veteran left that job.
- Record of disciplinary action or performance reports. These types of records can be useful to show how a veteran’s service-connected disability negatively impacted their work. If a veteran has a service-connected psychiatric condition that caused them to be violent at work or have angry outbursts, records of those incidents can be used to show entitlement to an increased rating.
A lay statement is a written statement from a veteran, family member, friend or coworker that can be submitted to VA in support of a veteran’s claim. Statements can be submitted directly to VA. Statements can be especially useful to document and report symptoms and frequency of symptoms a veteran experiences to support a claim for an increased rating. Buddy statements, those written by a fellow service member on behalf of the veteran filing the claim, can be useful to corroborate an in-service event or injury. Lay statements can be a very effective piece of VA claim evidence.
Lay evidence can give rise to credibility issues. Credibility issues come up when VA determines that a veteran is not a credible source in providing information about their condition. If a veteran submits multiple statement that contradict each other, VA can deem that veteran is not credible based on the inconsistency of those statements.
Is There a VA Form for Statements?
VA does have a form for veterans to use to submit statements. This form is VA Form 21-4138 “Statement in Support of Claim.” VA does not require veterans to use this form when submitting a statement. The person writing the statement should sign their statement so it is clear to VA who is submitting the statement, and that the person certifies that the information in their statement is true.
Hearings before the Board of Veterans’ Appeals can be used as evidence in support of a veteran’s claims. They allow a veteran to speak with a Veterans Law Judge directly to explain their case. All hearings are transcribed so VA has a written record of what was said. However, hearings do have drawbacks. One disadvantage of requesting a hearing is that they can often take months and even years to schedule. This can add a significant delay in a veteran receiving a decision on their claim.
Lay statements can serve a similar purpose as a hearing in terms of presenting evidence and arguing entitlement, but do not require the lengthy waiting process.
When Should Veterans Submit Evidence?
A good time to submit VA claim evidence can be after an initial VA decision. Once a veteran files a claim, VA will issue a decision either denying or granting that claim. If VA denies the claim, they will provide reasons as to why they denied the claim. This can be useful to determine what additional evidence a veteran may need to submit to prove their claim and receive a grant of benefits.
Another strategic time to submit VA claim evidence is when filing an appeal to the Board of Veterans’ Appeals. Having a complete record of evidence is important because if the Board issues a denial, a veteran is not able to submit new evidence in an appeal to the Court of Appeals for Veterans Claims. At that point, the veteran’s record is closed and the Court reviews the record as it was before the Board; no additional evidence will be considered.
Where Is All This Evidence Held?
Any evidence that is obtained or submitted for a veteran’s claim is compiled into the veteran’s claims file. Frequently referred to as a c-file, a claims file is the total record of the veteran’s case including all decisions previously made by VA.
Veterans can request a copy of their claims file directly from VA.
Specific Evidence for Certain Claims
Claims for Post-Traumatic Stress Disorder (PTSD)
Claims for service connection for PTSD require a specific type of VA claim evidence called a stressor in order for VA to grant entitlement to benefits. A stressor is an event or incident in service that caused the veteran’s PTSD.
If a veteran’s stressor is related to a combat experience and he or she is a combat veteran, the veteran’s lay statement alone can establish that stressor.
Military Sexual Trauma (MST)
Military Sexual Trauma (MST) is a specific type of PTSD stressor in which a veteran experienced a physical assault or battery of a sexual nature, or sexual harassment while in service. MST is not only linked to PTSD, veterans may also experience depression, anxiety, or even a physical diagnosis associated with MST.
In cases of MST, VA cannot state that a lack of evidence of the incident is negative evidence against the veteran’s claim. This comes from a recognition that incidents of MST are not always reported in service. If there is no report of the incident, veterans can use performance reports, requests to transfer stations, or other service records to indicate any behavioral changes as a way to establish that they experienced a traumatic event.
For claims for TDIU, veterans are required to submit a VA Form 21-8940, the application for entitlement to TDIU. The form requests information on a veteran’s service-connected disabilities, their employment history, and educational background to help determine if the veteran’s service-connected disability or disabilities prevent them from working.
VA recognizes certain conditions as presumptively related to service for veterans with qualifying service, for example, Agent Orange exposure in Vietnam or exposure to environmental hazards during the Gulf War. In these cases, veterans do not have to submit a medical nexus linking their condition to service. VA will presume that the veteran’s exposure caused their current condition if they qualify under the presumptions.
For example, if a veteran served in the Republic of Vietnam during the Vietnam War and is later diagnosed with a condition on VA’s list of conditions that are presumptively due to Agent Orange exposure, VA will presume that the veteran’s service caused their condition.
Evidence in Cases at the Court of Appeals for Veterans Claims
Veterans can file appeals to the Court of Appeals for Veterans Claims if they receive an unfavorable decision from the Board of Veterans’ Appeals. When a veteran’s case goes to the Court, the record becomes closed and the veteran is not able to submit additional evidence. The Court decides the case on the closed record because the Court looks at cases to determine if the Board properly applied the law and if they properly assessed the evidence they had before them at the time of the decision.
Was your VA disability compensation claim denied?
Filing for disability compensation is a stressful process, particularly when you are dealing with medical and financial hardships. If you need assistance in navigating the claims and/or appeals process, the team at Chisholm, Chisholm & Kilpatrick is ready to help. Contact our veterans lawyers for a free case evaluation.
For immediate help, call 401-331-6300 or contact us online.