Evidence for Your VA Claim: What you need & where to find it
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.
1. The Purpose of Your Evidence (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 does “as least as likely as not” mean?
2. 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))
3. Medical Records
- 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)
4. Employment Records
- employment records(like performance evaluations, disciplinary actions, a VA Form 4192 questionnaire, etc.)
5. Lay Statements & Affidavits
- 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 weigh the benefits of using a Statement in Support of Claim form, a letter, and requesting a Board of Veterans Appeals (BVA) hearing)
- the difference between lay statements and affidavits
6. VA Hearings – Benefits and Drawbacks
7. What is the best time to submit evidence to the VA?
8. 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?
9. Evidence for post-traumatic stress disorder (PTSD) claims and Military Sexual Trauma (MST)-related claims
10. Evidence for presumptive conditions
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
Jenna Zellmer: Good afternoon. Welcome to CCK Live. My name is Jenna Zellmer, I’m an attorney here at Chisholm Chisholm & Kilpatrick. Joining me today are Emma Peterson and Nick Briggs who are also advocates for veterans at the VA. Today, we’re going to be talking about evidence. Before we begin, I just wanted to remind you that if you have a question throughout our discussion, please feel free to leave a comment below and we’ll do our best to answer it in our discussion today. You can also visit our website at cck-law.com. It has a lot of helpful information. We’ll be posting some links to some articles while we discuss evidence today. Evidence is a pretty broad topic. We’re going to be discussing the type of evidence a VA obtains, type of evidence that veterans can submit on their own. Before we get into the specifics of that, let’s pull back a little and talk about what exactly is a veteran trying to do with all this evidence. What’s it for?
Emma Peterson: Two sort of main groups or reasons why veterans seem to gather evidence. One, generally, you’re either trying to go for service connection. You’re trying to prove to VA that the disability you have now is related to your time in service. Or the other main category of evidence you want to generate is to show the severity of your disability, to show that the disability that’s already service connected is at a certain level of impairment if you could assert at a certain range, at a certain monthly benefit. Those of the two broad strokes categories in which veterans are going to want to generate evidence.
Jenna: You mentioned service connection. Trying to prove that your disability is related to service. What exactly does VA require to down straight service connection?
Emma: Sure. You need to show there’s in-service incurrence event incident where this disability came from. That you have a current disability that cannot resolve and you will be completely symptom or pain or whatever, free. That there’s a link, a nexus, between the two. Those three elements each requires an evidence. You have to show by– and at least as likely as not standard. That’s not very burdensome, it’s a 50-50 standard. One of the lowest standards there is. As long as you can show it’s at least as likely as not that those three elements are met, you should receive service connection.
Jenna: Great. A veteran files a claim and they have to show some proof that they are entitled to that claim, whether it’s service connection or an increase in rating. With that kind of foundation in mind, let’s start talking about the different types of evidence that can help you in your claim process. Nick, let’s talk about evidence from service. What kind of military service records are we usually looking for?
Nick Briggs: Like Emma mentioned, one of the first things that you’re trying to establish is the in-service event or incurrence of either disability or some event that cause the disability. When we’re looking at specific types of service records, you can look first and foremost at the DD Form 214 which is going to show the veteran’s period of service, where they serve, the type of service that they have. From there, you can get into the veteran service personal records, which will basically include performance evaluations, any transfer orders, locations of service, duty stations, things like that. Then service medical records, which will cover any treatment that a veteran might have received while they were in service.
Jenna: Great. How does a veteran try to get these records? Does VA get them for him? How do they become part of the veteran’s claims file?
Nick: First and foremost, a veteran can request the records on their own. VA has what’s called the duty to assist wherein filing a claim as long they have a reasonable belief that the information exists, they’re going to go out and try and get it. If the veteran can demonstrate that they were in service and provides enough information for VA to request their service records, VA will do it for them. If a veteran thinks that some of their service records might be missing, they can fill out Standard Form 180 which is basically the catch-all form that you use to request military records. Then from there, you just need to know what branch you served in and when you served. That’s going to determine the location that you submit the information to.
Jenna: Great. You mentioned VA’s duty assessed. About a month ago, VA did a complete overhaul of their appeals regulations. Does that new appeal system affect VA’s new uses at all? How can veterans know what to expect now under this new system?
Emma: Sure. We have a lot of blog postings on our website and some Facebook Lives about this too. I’d certainly recommend you look at those because this is, like you mentioned, a complete overhaul. Just know that the duty to assist now applies at certain points and not at others. The regional office will continue to develop your claim, go out and seek these records depending on what type of claim you pick thereafter, and whether you go to the board or stay at the regional office, the duty to assist may or may not apply anymore. Just keep in mind that there are windows of time in which it will apply. It’s not going to apply from the day of the claim, all the way through to the end of time. Just something to be aware of about certain new requirement but it’s a lot more new ones than this Facebook Live could cover.
Jenna: You actually mentioned something that I want to hit on. You said, “VA will help develop your claim.” We used the word develop a lot. I think we told veterans that we’re going to help develop their claim or the VA has a duty to help develop their claim. What we mean by develop is just we’re in the process of getting all of the elements, all the evidence that we feel needs to be there in order to support a veteran’s claim. Development and evidence really go hand in hand. We are representing the veteran and we say we’re going to develop a claim. It means, we’re going to go out there and seek whatever we think VA needs in order to grant the claim. Moving on, we talked about service evidence. Evidence that– service medical records, service personal record, your DD 214. What other kinds of medical records would you need to support your claim?
Nick: Like when you talked about before, when seeking service connection or seeking the proper rating for your disability, you’re really looking to establish that you have a current diagnosis for a condition and show using medical evidence of how severe it is. In providing that information to VA, they’re going to be looking for VA treatment records, as well as any private treatment records that you might receive through a primary care physician. You’re looking for active treatment in terms of multiple treatment notes, as well as medical information providing a diagnosis for the condition itself.
Jenna: Great. That’s– I think when we talk about the two main reasons why we want evidence, service connection, increase rating, I think medical evidence is really important for both. It’s a little bit different depending on which zone you’re in. Emma, do you want to talk about the difference? What kind of medical evidence do you need for an increase rating versus what kind of medical evidence you need for a service connection claim.
Emma: For service connection claim, in addition to what Nick mentioned about showing you have a current disability, you’re also going to want some type of medical opinion, whether it be from VA, one of VA’s own compensation and pension examiners or your own doctor to opine on that link, that nexus between your current disability and the incident in service. Through that medical opinion, they can say it’s at least as likely as not your disability is due to that incident in service. That’s something you absolutely need to have for service connection. For an increased rating claim, you’re going to want the medical professional to opine on the severity of your condition and how it impacts your day-to-day life, how it impacts your ability to work, because that’s really what the whole rating schedule’s based on. Even look at the ratings schedule and maybe compare what’s in there to what you have going on in terms of symptoms, just to make it crystal clear for VA how severe this disability is.
Jenna: We actually have recent Facebook Live that went all into VA exams, what VA examiners look for and also a little bit about how to get your own private exam. Just to refresh our listener’s memory maybe, how would a veteran who either doesn’t get a VA exam for some reason or isn’t happy with the VA exam, how did they request documents from a private examiner?
Nick: There’s a specific forum that VA is going to require before they can go out and get medical evidence from a provider. It’s VA Form 21-4142. This duty to assist comes into a play were VA is going to make reasonable efforts to request the records, but they’re only going to make a certain number of attempts before they determine that the record’s either unavailable or they won’t be able to get them. Ultimately, it’s the veteran’s responsibility to go out and obtain that information so they can opt and request it directly from their medical providers using whatever release form that they use. Then from there, they just need to submit it to VA.
Jenna: Then if they have a private examiner, they can specifically ask for an opinion about nexus or about severity rate?
Emma: Right. You mentioned that what to do if you get an unfavorable decision, you can certainly bring a copy of that with you to your doctor and ask them to take a look.
Jenna: That’s really a good idea.
Emma: No guarantees that they’ll necessarily be able to help you but it’s absolutely worth a try. You have a right to send that counter-evidence.
Jenna: That’s a good point. If you want to learn more about just VA exams in general, we’re going to post that link to our Facebook Live in the comments here. I’ll put it in here, you can go back and look at some of our old Facebook Lives. Moving on from medical evidence to employment records. You had mentioned earlier, Emma, that the whole rating schedule is based on the veteran’s ability to work. How can employment records be helpful to a veteran’s claim?
Emma: It’s certainly very important if a veteran is unemployable or unable to work due to their disabilities. Showing to VA that they are in fact not working if the records are unclear. Getting pay stubs, employment records from their employer is very important. Also if they’re trying to show that their work is diminished or they’ve been demoted, they’ve been transferred, they’ve had to curtail their hours getting performance evaluations, just action if your comfortable submitting that to show how your work has been impacted by your disabilities can be very important.
Jenna: Nick, you really like forms. The thing that–
Emma: There is a form.
Nick: When a VA walk and go out and request that sort of information from an employer, if they’re trying to verify the dates of employment and if there are any performance evaluations or things like that, that’s a VA Form 21-4192. That’s another one of those things where there’s this duty to assist, VA’s going to make a few attempts to get that information, but ultimately if the veteran’s former employer is either don’t receive it or don’t respond in a timely fashion, VA’s not going to continue to keep trying to get that info. If you think there is something that’s helpful in your employment record, you should go out and make an effort to get it yourself if VA’s unable to obtain that.
Jenna: That’s important records. Moving on, what’s a lay statement?
Emma: A lay statement is a non-expert statement. Basically, anyone else that’s not medical or vocational expert providing an expert opinion is a layman. They can provide a statement about anything that they’ve experienced or seen or heard. It can be from the veteran themselves, describing how their disability impacts on day-to-day, describing the incident that happened in service that lead to their current disability. Anything along those lines. It can also be from friends and family. Those are often called buddy statements. Fellow service members that witnessed the event in service that can verify that it happened, or fellow friends and family now that can talk about what the veteran is going through and how this disability is impacting their life. It’s really powerful evidence because no one knows better what’s going on with you than the people you interact with day-to-day and maybe can do a better job at describing how these disabilities are impacting your life.
Jenna: Do you have anything to add?
Nick: Yes. Oftentimes, a veteran’s disabilities are going to impact how they complete the activities of just daily living. If a veteran’s wife needs to assist them in bathing, getting dressed, things like that, the wife is just as competent to testify to those symptoms as the veteran is. That statement’s helpful because they help confirm and corroborate each other’s reports.
Jenna: So lay statements kind of fill the gap that is left by service evidence and medical evidence, right? All the times where you’re not visiting the doctor, you can fill that gap with the lay statements. Maybe a doctor or an examiner misrepresented something unintentionally, obviously, but wrote something down that wasn’t exactly correct, that’s I think where a lay statements are really helpful too. It’s to fill the gaps. That way you can have a very complete picture of your whole disability picture, not just at these incidents when you go to the doctor. What exactly is an affidavit, and is it different than a lay statement?
Emma: An affidavit is a more formal lay statement. When an affiant makes an affidavit and they swear under the penalties of perjury that everything in the document is true to the best of their knowledge, it has to be true at your personal knowledge too.
Jenna: Is there anything about an affidavit that is for VA purposes better than the lay statement? I think a lot of times, veterans think they need to go out and get something notarized or something signed by someone else.
Emma: I mean, in terms of all things being equal as long as the evidence is competent and credible, they should be equal but I think an affidavit has a little bit more weight to it. It shows that you’re prepared to sign this under perjury, that this is true at the best of your knowledge.
Nick: That VA no longer requires that affidavits be notarized, but again, there’s the expectation that if you’re swearing under the penalties of perjury, that you’re telling the truth, that the evidence is going carry more weight even if it isn’t necessarily medical evidence in a way that a doctor’s statement would be.
Jenna: You won’t get notarized but as you’re sitting down to write your lay statement, just take in a step and thinking about how serious this is and swearing that it’s the truth is probably going to be a little bit more helpful as lay statement goes. You mentioned, as long as a lay statement is competent and credible, I think– You touched on this a little bit, Emma, when you said competency is something that a veteran– a veteran’s competent to report anything that he or she personally observe. The same goes with buddy statements. What exactly makes a lay statement credible though? What’s the difference between competency and credibility?
Emma: We start with the presumption that people are credible. We don’t start from the presumption that they’re incredible. That can be sometimes an error that we find in various VA decisions you certainly can fight an appeal for. But something’s going to make a statement credible as if it’s consistent across time, it’s consistent with the nature and places of service. If you’re describing a combat situation but you only serve in Washington, that might not exactly pan out, but if it’s consistent with the nature and type of your service and your buddy statements are backing that up, then that’s going to be considered credible. Something is competent and credible, together that combines to the weight of the evidence, how strong VA’s going to consider that evidence. They call that probative value.
That’s something that’s important to consider, but just because something’s inconsistent doesn’t mean you should shy away from explaining that inconsistency. I think that’s lay statements are good for gap filling. If you know something’s inconsistent in your record or just service record that says one thing and then a few years later, something else happened and it was described differently, a lay statement’s a good opportunity to explain why that inconsistency exists. A lot of them are very innocent. A doctor wrote something down wrong, something else was going on in your life so you weren’t really focusing on your left knee, you were focusing on your back issue that was the pressing issue at the time. Lay evidence is a really good tool to rehab that.
Nick: Time frames are also important when it comes to lay evidence, testifying to exactly when things happened. Because if a veteran’s telling the same story consistently over and over again, it’s going to lend much more weight to their statements, but at the same time, they’re going to be occasions where a veteran is seeing with their doctor and they suddenly say something like, “I’d been experiencing pain for 30 years.” when in reality, this might observed 50 years ago. That’s not necessarily an inconsistency in the way that Emma mentioned. It’s just that the veteran’s been experiencing the pain for so long, it didn’t start 30 years ago.
Jenna: 30 years ago, was kind of a stand in for just – a long time.
Emma: No one thinks when they go to the doctor a treat, “I need to preserve the record and testify exactly because later VA is going to look at this.” I think that’s where a lay evidence can really smooth that over and fill in those gaps.
Jenna: I practiced at the Court of Appeals for Veterans Claims and we see a lot of board decisions that we appeal. I think you mentioned that have this credibility determinations that are just a little bit too picky, if you will. The board will say, “In one statement, the veteran said this happened while he was coming out of a place and another statement he said he was actually in the place when that happened.” Little things like that, sometimes VA is a little bit overly stringent. It’s important to try to remember and be honest in your lay statements, but little discrepancies aren’t necessarily going to be the death of you as long as you’re really trying your hardest to remember accurately and be honest and, like you said earlier, correct anything what you think might’ve been misstated earlier. How does a veteran submit lay evidence? Nick, is there a VA form?
Nick: As always, there is. It’s VA Form 21-4138, Statement in Support of Claim. It’s exactly that it’s just a written template where you can provide information regarding whatever it is you were trying to tell VA. At the end of the day, the form is not required. You can just write a normal letter as long as it’s written and submitted to VA, they’re supposed to consider it.
Emma: That’s one of the few areas where a form is not required. It’s mandatorily use VA’s form for a lay statement yet.
Nick: If you’re appealing something, always make sure you use VA’s forms. If you’re just submitting a letter, it’s usually safe to–
Jenna: Just from an ease of use perspective, I think when you’re not using VA’s form, even if you are using VA’s form, a lot of times we see handwritten notes. I think it’s really important to consider who’s reading those and make sure that whatever you’re writing is legible. If you don’t have the best handwriting, you can type lay statements. That’s totally fine too. VA will accept that. As someone who looks at these lay statements for a living, I would appreciate it. Things to consider. In addition to submitting lay statements, veterans can often go to a hearing in person or they’ll be in one spot and the judge or the hearing officer will be in another spot and it will be electronic. What are the benefits and drawbacks of doing that versus a lay statement?
Emma: The nice thing about a lay statement is that it’s controlled. You got to say exactly what you want to say, how you want to say it. You can take as long as you need. You can put it aside, come back to it, edit it, clean it up, make sure that it says everything you want and there’s not going to be anything to throw you off or get you off track. That can be something that can happen in a hearing. You have no control over what the board member’s going to ask you or what the hearing officer’s going to ask you. Your hearing might go off on a different direction and then before you know it, just due to the stress or anxiety of the situation, it might be over and you might have forgotten to mention something super important.
That’s one pro I think for a lay statement over a hearing. However, every veteran has a right to have a hearing if they want it. You have a right to have that hearing before hearing officer or a board member. There are certain disabilities that need to be seen in person to fully understand and grasp, the severity and nature of them. If there’s a unique circumstance, it has to do with how you talk or walk or something that you really think needs to be seen in person, that can be a good tool to have in your pocket.
Jenna: Nick, what do you think about hearings versus lay statements?
Nick: In general, at our agency practice, we prefer lay evidence just because, like Emma mentioned, it’s much easier to control. But at the end of the day, there are certain things that it would be better for the hearing officer to see if the veteran’s using a walker and really needs assistive devices to ambulate, for example. They’re the ones ultimately making the determination as to the severity of the condition, it’s helpful for them to see how that actually works in a physical context. Hearings do have the time and place, but in general, it’s easier for you to submit the lay evidence just because of how long it takes to schedule the hearing in the first place.
Jenna: We talked about a lot of different types of evidence: medical, service records, employment records, lay statements. What is the best time to submit all of this different evidence? Can you do that at any time? I think appeals reform will change this too. In the old system, we called the Legacy System, what would you say is the best time? Then maybe we can catch a little bit on appeals reform.
Emma: The best time– but this is a little impractical– the best time is to have it all upfront. Have your claim, your– let me see if I get this right. 21-526, ready to go.
Nick: Nailed it.
Emma: Along with your nexus opinion or your medical opinion describing the severity of your condition, lay statements from friends and family. Everything VA needs tied up, ready to go, to grant what you’re seeking but oftentimes, you don’t know what’s missing until you either get a letter from VA telling you this is missing or you get a decision that explains why they’ve denied your claim. I think as much as you can front load things, the better, because the system does take a long time, the appeal system takes even longer, so as much as you can get things in as soon as possible, the better.
Jenna: Nick, you want to say something?
Nick: That’s exactly it. At the end of the day, you don’t necessarily know what VA’s looking for to establish the claim right away, so do your best to get everything you can from the very beginning. Thereafter, they’re going to send you a rating decision or a statement of the case, they’re going to tell you what evidence they considered, and they’re going to tell you what evidence you still need to submit to support your claim. Then from there, you can sort of supplement it as you go to hopefully give them what they need to grant service connection.
Jenna: It will take a little bit longer that way.
Jenna: Then under the new appeals process, the times in which you can submit evidence are going to be a little bit more limited after you get a rating decision. After you get a decision, you’re going to be able to submit evidence depending on what lane you choose. As I mentioned before, we have a lot of materials on appeals reform but just know that if you were either in RAMP or you have a case that is very recent, you’re going to be at this new system and I would definitely recommend you reach out to either your veteran service organization, your accredited rep, or your attorney, whoever you have helping you because it’s going to be a really complicated process.
Emma: Hopefully under the new system, one of the good things is going to be that what evidence is missing should be clear. That should be identified within the decision so you can then take that, obtain that evidence, file your supplemental claim and hopefully get it granted. But like Jenna said, talk to your VSO, like our colleagues at DAV. Talk to your agent, your attorney, whoever you work with on these claims to figure out what you need to do to get that granted.
Jenna: I think that’s actually really great transition. You mentioned under the new system, it’s going to be a lot easier to know what exactly is missing. How do you know? How does a veteran really know what kind of evidence they need to support their claim so that they don’t get that decision that says they are missing some evidence? Nick?
Nick: At the end of the day, it’s going to vary from issue to issue. If you’re already service connected for something, you don’t need to show that something happened in service. It’s really focusing in on how it affects you now and if you’re seeking unemployability benefits, how it affected you while you’re working. In the case of TDIU, you’d really want to look to some of the employment records that we talked about earlier. In the opposite case, if you’re trying to go for service connection for a condition, it doesn’t really matter how it affects your ability to work, yet you’re still trying to establish, one, that you suffer from the condition and then, two, that it’s related to service in some way or another. It’s a moving target depending on what exactly you’re going for at any given time.
Emma: Like we mentioned before to the decision that you get, whether under the old or new system should tell you what they considered and what is missing. That’s a good point to start. Then from there, you’re going to want to take a look at actually what is in your record. A place you can look for that is your claim file. That should have everything that VA’s looked at. It should have everything from– when you filed your claim until today that’s been submitted, your service records, if they’ve gotten those, as well as medical records, things like that. Basically, a whole snapshot of your military service up to today.
Jenna: How does a veteran find that claims file? How do they get a copy of it?
Emma: They’re going to have to request it from VA.
Jenna: Requires another form?
Nick: There is a form but I don’t remember it.
Emma: Oh no. Stumps.
Nick: We don’t personally use it when submitting our records request. But yes, a veteran’s entitled to copy of their claims file, so they would just need to submit a request to the records management center in St. Louis. Then from there, they can note what–
Jenna: They can get a copy of that.
Jenna: I imagine they’d get a electronic copy of it, not a hard copy. Maybe they might ask for it?
Nick: They could ask for a specific hard copy, I don’t know if they’ll be willing to entertain the request.
Jenna: It would be several thousands of pages likely. An electronic copy is probably the most efficient.
Nick: It’s usually by CD-ROM. It’s what we see.
Jenna: Okay. Let’s get into a little bit of specific types of claims and what kind of evidence differs. We see a lot of cases for post-traumatic stress disorder, particularly for post-traumatic stress based on military sexual trauma. There’s slightly different evidentiary requirements for these two. For this condition, Emma, do you want to talk a little about what makes that different?
Emma: Sure. For PTSD– To start, just all PTSD, you need to have a stressor from service that is causing your current PTSD. VA either has to corroborate that stressor by looking in records and verifying that it occurred or there’s a couple exceptions where they’re going to concede that it occurred if you were in combat, if you were prisoner of war, if you have a VA doctor or psychologist, psychiatrist described that you have a fear of hostile military activity, those are going to be conceded. Another area where the rules for corroborating, proving that stressor happened, get loosened have to do with military sexual trauma, just by it’s nature, it’s not going to be generally documented in a service member’s records. It goes under-reported and there are lots of other articles you can look into about that.
In terms of what VA’s going to require, they’re going to look at anything else that might be going on in your service record’s request for transfers decreases in performance and attitude, things like that. Also, that lay evidence we talked about earlier can be very helpful. Friends and family describing what your real life before service and if you had any changes in personality or attitude after service. All of that lay evidence that we are talking about, medical evidence we’re talking about can be used to corroborate a stressor.
Jenna: Nick, do you want to talk a little bit about what a presumptive condition is and how the evidence differs from that?
Nick: Sure. There are certain conditions that VA is going to presume to be related to service, depending on whether or not a veteran’s presume to, have been exposed to a certain environmental toxin in service. The classic example is being exposed to Agent Orange and other herbicides in Vietnam. In those cases, if you’re able to demonstrate that you served in Vietnam and that you have a current diagnosis, that’s the end of the matter if it’s one of the specific disabilities listed. You just need to show where you were and that you have the condition currently.
Jenna: Good. When we are talking about evidence, we propose this full conversation, we’ve been talking about evidence at VA. When a veteran first files his or her claim all the way up to when they get a final board decision. Emma, we also practice at the Court of Appeals for Veterans Claims. Can a court look at evidence? How is that differ?
Emma: The court is only going to look at what was before VA when they made their decision, because they decide—they don’t decide facts, they decide legal mistakes. Basically, look at what VA has done and decide whether or not VA followed the law and regulations as they’re supposed to. The record is closed. At that point once your case gets to court, it’s called the record before the agency. It’s everything as it existed at the time of war a veteran’s appeals made that final decision. That’s all the evidence that someone practicing at court can use to prove the case, to argue the case. Nothing new can be added. There are few sort of rare exceptions to that when the court can take judicial notice of things. We need to go into all those tiny nuance details, but for just general purposes, the record’s close. That’s something important to note, that if your case does get before the court, you’re not going to be able to add anything new at that point.
Jenna: I think that’s probably one of the questions I get most frequently in my practice at the court. Veterans will call and say, “I have new evidence that they want to be able to support my claim.” The best thing that we can do is really work our hardest to get the court to agree with us to get a remand. Once that case goes back to VA, then the veteran can submit that new evidence. Unfortunately, the court can’t look at any new evidence that was obtained after the board decision. I think we have covered a lot of topics in the realm of evidence. Do you guys have any final thoughts?
Nick: I think one important area like we just talked about is just stressing that the record does open back up after your case comes back from court. They’re going give you a 90-day notice letter and you have the full 90 days to respond and submit any new evidence that you’re able to get. While your case is at court, if anything does come up, hang on to it. Make sure that if you do get that second opportunity to submit it, you should.
Jenna: That’s great. Well, thank you for joining us today. If you have any other questions or concerns, feel free to visit our website at cck-law.com. We’ll see you again next week.
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