Is the VA really non-adversarial?

In this video, CCK’s experts discuss:

• What does “adversarial” mean in the traditional legal context?
• What do “non-adversarial” and “pro-claimant” mean? Why does VA take this approach?
  • Does the VA claims process become adversarial at any point?
• What is a statute of limitations and does VA have one?
  • At the VA, when does a decision become final? What is “new and material” evidence?
• What is the VA’s duty to assist?
  • What do “reasonable efforts” to gather evidence look like for VA?
• VA Medical Exams and The Veterans Claims and Assistance Act (VCAA) of 2000
  • At the agency level, how can you show a medical nexus without a C&P exam?
  • Can veterans obtain their own records?
• Hearings at the Regional Office (with a Decision Review Officer or DRO) or at the Board (with a Veterans Law Judge)
• What happens if VA does not fulfill its duty to assist?
• Duty to Assist under VA Appeals Reform (including RAMP)
• Do other government agencies have similar non-adversarial systems?
• VA’s Benefit of the Doubt Doctrine – What is it and what is “equipoise”?
  • How is this standard of proof different than other legal systems?
  • What are the limits of this benefit of the doubt rule?
• How does benefit of the doubt apply to VA ratings?
• What are VA’s rules on “favorable findings”?
• VA’s rule on the attitude of rating officers
• Does VA succeed at providing a non-adversarial system where veterans get the benefit of the doubt?
  • What are the stated and unstated goals of VA in the benefits process?
  • How has the introduction of attorneys into the VA appeals process changed the (non-)adversarial nature of the VA?
• The VA’s “Duty to Sabotage” – What is development to deny?
  • What can veterans do to help their claim if they get a bad C&P examination?

VIDEO TRANSCRIPTION

Brad: Good afternoon. Welcome, this is Facebook Live. I’m Brad Hennings, and we’re here at Chisholm Chisholm & Kilpatrick talking a little bit about whether the VA disability system is non-adversarial. Joining me are Christian McTarnaghan and Courtney Ross, both attorneys at the law firm of Chisholm Chisholm & Kilpatrick. We’re going to be discussing a number of different things about the VA disability system, but if you have any questions as we’re going along, please feel free to put them in the comments or if you have anything afterwards put them in the comments or send us a message through Facebook or our website cck-law.com. So, let’s get started. One of the questions about the VA has to do with traditional legal systems, and traditional legal systems are what they call adversarial. What does adversarial mean in the legal context?

Courtney: Yeah, so in the traditional legal context adversarial generally means you have two opposing parties who are presenting their case or their issues in front of an objective third party, maybe it’s a judge or a group of objective third parties, so a jury. So, the opposing parties are presenting their case and the objective third party will make a decision in favor of one of those opposing parties.

Brad: So, the VA claims process is supposed to be non-adversarial and pro-claimant, those are the terms they use. What does that mean in a general sense and why does VA take this approach?

Courtney: Yes, so in a general sense what it means is when a veteran files a claim for disability benefits with VA, it’s not the veteran versus the VA. So, the VA, and we’ll get into this in detail, but is supposed to be assisting the veterans with the claims that they file. Why does VA take this approach? Generally it’s because it’s the idea that these veterans served the country and VA wants to help them and award them benefits that- for disabilities that are due to their time in service.

Brad: So, VA is supposed to work with the veterans to try to make sure that any meritorious claims are granted for those veterans, right?

Courtney: Exactly.

Brad: Okay. Now, does the VA claims and appeals process become adversarial at any point?

Christian: Yeah, it does. So, as you both said during the time that a claim is at VA, so at the agency level, it’s a non-adversarial process, but once you get a final Board decision which is the final VA adjudication of a disability claim, the veteran or the claimant has the right to appeal that to court. It’s a specialized court called the United States Court of Appeals for Veterans Claims, and that’s when the case moves into a more traditional adversarial process. So, the veteran will either represent themselves or get an accredited person who works at the court or an attorney to represent them, and they will go against or sort of argue against the VA’s position in the case at court.

Brad: So, when you were talking about the Board I assume you were referring to the Board of Veterans’ Appeals?

Christian: Yes.

Brad: So, just to back up for a minute for folks who– or for the uninitiated. When a veteran files his claim, he files it at one of the local Regional Offices around the country. If the veteran is denied he can appeal that case and that case will ultimately go to the Board of Veterans’ Appeals which is part of the VA and it’s in Washington, D.C. As you just talked about once the Board of Veterans’ Appeals has denied it you have to leave the VA then go to this separate federal court.

Christian: Absolutely. The CAVC, the United States Court of Appeals for Veterans Claims.

Brad: So, let’s talk a little bit about what is a statute of limitations? That’s a very legal term, and is there a statute of limitations for veterans benefits claims?

Courtney: Sure I can take that one. So, a statute of limitations, in general, is a time limit that’s placed on the ability to bring a legal claim. It’s usually specified in a statute or a law that at the state or at the federal level will be on the books. In the VA world so in the agency level, there is not a statute of limitations placed on when a veteran can file a claim, any claim really for service connection or increased rate, whatever it is.

Brad: Okay. So, since we’re talking about that, can you talk a little bit Christian about the finality of VA decisions, what that actually means and what are some of the, ways around that or why that’s unusual, how that works?

Christian: Yeah, sure, absolutely. So, I think this explanation might work best with a hypothetical. So, a veteran receives a rating decision that denies let’s say service connection for a knee claim. Then the veteran doesn’t appeal that within the required appeal period which is for a rating decision would be a year. That decision becomes final and I only use air quotes for the next part of the discussion. Because if VA say denied that service connection claim for the knee because they didn’t find any evidence of a connection between a current knee disability and something that happened in service, right? Maybe the veteran fell and hurt their knee in service. So, that’s called the nexus. So, after that decision has become final, a veteran can submit new and material evidence that goes to the connection between their current disability and the injury that they sustained in service, and the case will be reopened and re-adjudicated.

Brad: Can you give us an example of what new and material evidence might be?

Christian: Absolutely, yeah. So, it just using the–

Brad: In that hypothetical.

Christian: Yeah, sure, absolutely. Using that hypothetical, a letter from your doctor that says in their opinion there is a link, but it doesn’t even need to be that substantive. There could be some new piece of evidence or sometimes in different situations just a statement by the veteran that said, “Oh wait, I didn’t hurt my knee when I fell at this particular time. I hurt my knee falling out of a truck” or something to that effect. If the veteran was denied for lack of an in-service incident then that could be new and material evidence just by the statement alone that the veteran’s saying, “I actually got hurt in this other way”, and then VA would have to re-adjudicate the claim based on that sort of new concept of the in-service incident.

Brad: So, it could be a letter from the veteran, letter from the veteran’s friends or family members or even a medical article that they found in the magazine, or these days on the internet something that would maybe show that link or potential link?

Christian: Sure. We see that a lot with deck logs and new medical evidence that’s coming out about herbicide exposure and things like that too, exactly.

Brad: Great. Okay. So, what is the VA’s duty to assist? This is a term that not everyone may be familiar with but it goes to the non-adversarial nature of the claims.

Courtney: Yeah, exactly. It goes hand-in-hand with VA’s non-adversarial nature. So, what it means basically is that VA has a duty to make reasonable efforts to assist veterans in gathering evidence that will substantiate their claims.

Brad: So, in layman’s terms what does that mean really?

Courtney: It means that VA has a duty to go out and obtain evidence that are even private medical records for evidence that’s within the federal government that is going to be relevant to establishing the veteran’s claim.

Brad: So, it would be records. Would it include medical opinions and examination?

Courtney: Yeah, so it includes things like service personnel records, VA treatment records, service treatment records and any other documents that can be obtained through other federal agencies. It also obtains to private medical records assuming that the VA or, excuse me, the veteran or the advocate has identified what those private records are for the VA.

Brad: So, if you tell the VA about these potential records that you think are out there, that you went and visited a doctor somewhere or you think there’s an old police report or something like that, and you let them know, so they’re then obligated to find that evidence, is that correct?

Courtney: Yes, assuming that evidence is relevant to the veteran’s claim.

Brad: So, what do these reasonable efforts look like to get the private evidence?

Courtney: Sure. So, if it’s private medical evidence, the statute requires that VA makes reasonable efforts which typically requires them to make at least two attempts to gather the evidence or the private medical evidence, unless after the first attempt it becomes clear that the evidence doesn’t exist, or it’s not going to be possible to gather the evidence. If after two attempts they’re still unable to gather it, they’re also required to send notice to the veteran to let them know describing what attempts were taken to get the evidence and asking the veteran if it’s possible for them to get it and submit.

Brad: Great. So, this all falls in under what they call the Veterans Claims Assistance Act of 2000. So, Christian, could you talk a little bit about the VA medical examinations that are provided? Why do they decide not to provide an exam or provide an exam in some of these cases, can a veteran request one, let’s talk a little bit about that whole process.

Christian: Yeah, absolutely. So, whether VA has to provide a veteran with an examination comes from the same origins of everything that we were just talking about in terms of their duty to get medical records, and that’s the duty to assist again. But, to show that you’re entitled to an examination, you have to show certain elements. It’s like a threshold or you have to show certain things in order for VA to go out and to get you a medical examination. So, you have to show that there was– you have a current disability and that can be a diagnosis or sometimes just evidence of some symptoms. Then you have to show that there was an in-service occurrence and then there also has to be some indication that your current disability, we’ll just use disability because that’s more clear, that your current disability is related to that in-service injury. So, if you hurt your knee in service, you have osteoarthritis now, there needs to be just an indication which is a low threshold. If those three- and of course insufficient medical evidence in the claim at the time to decide it without this new examination, then VA would have to go and get you an examination. They wouldn’t get you an examination if they found that those elements aren’t met. I practice at the court and a lot of cases that we see the Board will find that there’s not an indication between the veteran’s current disability and the incident in service.

Brad: So, that’s a great segue. So, Courtney, Christian just talked about a challenge at the court level. So, at the agency level how do you show that connection between the two?

Courtney: If VA doesn’t want to provide the examination?

Brad: If VA doesn’t want to provide the examination or has not provided an examination so far.

Courtney: Yeah, so like Christian said, usually if they don’t provide the examination or they’re saying that they don’t need to provide it, it’s because they’re saying one of those four elements has not been established. So, as an advocate or as a veteran what you want to do is submit an argument against that and request the VA examination. You can use evidence of record to point out to argue that their– that indication, that the current disability is due to service is in the record. You could submit statements from the veteran or others who know the veteran to suggest that that is sufficient to establish that indication requirement. But if you believe the evidence of record meets those four elements required, you definitely want to submit an argument to VA, lay it out for them clearly why all four things are there and ask them to provide the examination.

Brad: So, that brings up another great point and that is that although the VA has this duty to assist, veterans are often better served by getting these records on their own, if they can. While the VA will help them they might be able to get them faster or to frankly do a more complete job of getting those records. Is that fair to say?

Courtney: Yeah, that’s a really good point. So, backing up to what we were saying about when VA sends notice stating that they’re currently making efforts to try to get records or have already made efforts and been unsuccessful. If as the veteran or the advocate you are able to get the records yourself and you know VA is still in the process of it, you don’t need to wait for VA to do it because the chances are that you’re going to be able to get the records much quicker than VA is, and submit them and help to move your case along a little bit quicker than rather than just waiting and relying completely on VA’s duty to assist.

Brad: So, part of this non-adversarial nature of the claims process and the duty to assist includes the opportunity to provide testimony at hearings, both at the Regional Office before a Decision Review Officer, or at the Board of Veterans’ Appeals before a Veterans Law Judge. Christian, can you talk a little bit about hearings, do the hearing officers have any sort of obligations? Do they have- that relate to this non-adversarial nature?

Christian: Yeah, absolutely. It’s a very similar thread through everything that we’ve been talking about so far. So, the Board member has a duty to explain to the veteran the issues that are involved in their case, ask questions sort of to try to hone in on maybe evidence that’s missing in the file. Then before the hearing concludes, the Board member is supposed to describe to the veteran without adjudicating it, without saying, “This is the final decision that I’m going to make”, what evidence the veteran may submit to help them have the VA find in their favor, or grant service connection, or grant a higher rating? So, it’s a very similar duty to try to help the veteran have the best shot possible to getting a grant or an increased rating.

Brad: So, what happens if VA doesn’t fulfill its duty to assist? We alluded to this a little bit. Are there common situations where this happens and can veterans do anything about it? I think we talked about it a little bit.

Courtney: Yeah, I think it’s similar to what I was saying about if VA saying, the VA examination is not necessary. You’d want to submit an argument and possibly additional evidence outlining for VA why an examination is necessary. Other cases I can think about is sometimes if a veteran has a claim pending let’s say for PTSD. So, obviously an important piece of establishing that claim is establishing an in-service stressor. A lot of times you as the veteran or the advocate might need service records to place the veteran in a specific place at a specific time. So, if VA is refusing to go and get those records for you and you’re unable to do it yourself, that’s something you would definitely want to submit an argument for outline again and be as specific as possible I think is helpful spelling out to VA why these records are necessary to substantiate the veteran’s claim. Why they’re relevant to the veteran’s claim, and therefore why they need to go out and fulfill their duty to assist.

Brad: Great. This is Brad Hennings. We’re here at Chisholm Chisholm & Kilpatrick talking a little bit about the non-adversarial nature of the VA claims process. I think now is also a good time to note that if you’ve got any questions about your claims or appeals, to please contact a representative if you have one, or to consider getting a representative, be it a veteran service organization representative, an accredited agent, or an attorney to help you through this process. That being said just to talk a little bit about the duty to assist under the new appeals system which VA has passed or there has been passed VA Appeals Reform, and there’s the RAMP program, the Rapid Appeals Modernization Program. So, there’s been a lot of questions and a lot of discussion about what that means. It’s what they call Appeals Reform, it’s just starting, and it goes into full effect in February of 2019. We’re still working out what all the details are going to be but the duty to assist will be the same in what they call the supplemental claim lane of the RAMP system. But I don’t want to spend any more time on that or get bogged down in the RAMP questions. Let’s talk a little bit about some other government agencies or legal systems that have similar rules that veterans may be familiar with to this duty to assist.

Christian: Social Security is one that comes to mind. I have to be honest, I’m not an expert in Social Security law by any stretch of the imagination, but from my understanding of it, it’s an inquisitorial system. So, it’s not adversarial and it’s not the free really sort of veteran-friendly type of system in the Social Security laws.

Brad: So, no one’s actually working against the Social Security applicant. You don’t have a Social Security lawyer in there saying, “No, this applicant shouldn’t get that benefits.”

Christian: Absolutely, whereas you do when you get to the adversarial part of this process.

Brad: Right. So, let’s talk a little bit about the benefit of the doubt doctrine. This is a term that comes up all the time in VA claims, and I think sometimes it’s not always well understood even by the people who practice in this area all the time. So let’s talk about what is the benefit of the doubt doctrine and what is equipoise which is often associated with that, what does that mean?

Courtney: So, the benefit of the doubt doctrine means that when the evidence is in equipoise or what means when there’s a proximate balance of positive and negative evidence in support and against a veteran’s claim, the VA is supposed to afford the veteran the benefit of the doubt. So, if a veteran files a claim for service connection for PTSD, and there’s again a balance between positive evidence that’s supporting that claim for service connection and negative evidence against the claim for service connection, VA should award service connection in that situation.

Brad: Is there a sports analogy that may illustrate this? There’s a famous Veterans Court case that talks a little bit about this?

Christian: I didn’t know it was in a court case but tie goes to the runner. I also think of this- the old timey scales. If the scales are exactly at the same level, then the veteran is supposed to get the increased rating or the veteran is supposed to get service connection.

Brad: So, is that the standard of proof for the claims and the rating decisions?

Christian: It is, yeah, at least, less, or more likely than not. So, if it’s less likely than not, then the claim like in the context of service connection would most likely would be denied. If it’s more likely than not, the claim would be granted.

Brad: So, how is this different from other legal systems? What’s this traditional standards of proof?

Courtney: Yes, so I mean it varies in different legal systems. In the criminal context beyond a reasonable doubt is typically the standard that’s used, and that really tends to be the highest standard among the different legal standards. In the civil context, it tends to be either, clear and convincing evidence or by a preponderance of the evidence. Both of those standards are not as extreme as beyond a reasonable doubt but they’re both still higher than VA standard which is just at least as likely as not, so 50/50, tie goes to the veteran.

Brad: So, that sounds like a very favorable system for veterans at least in theory. So, what are the limits of this benefit of the doubt rule? Because it strikes me as being a little vague frankly when you start talking about, “Well, is the evidence balanced?” It sounds a little wishy-washy.

Christian: Well that’s- I was going to say, the limits are the inconsistent application because what I think is even may be different from what you think is even from what may be different from what Courtney thinks is even. So, it’s a very beneficial standard. It should be a very liberal standard but because VA tries to do the best they can, there are a lot of different adjudicators, there are a lot of different raters who do the best they can to look at the evidence in the same way. But it’s hard to put the evidence into two equal baskets to see how they weigh. It’s just a difficult thing to apply.

Courtney: Yeah, and I would add kind of as an example to give a little context to that. If you assume you have two different medical opinions, one of them is positive in theory for service connection, one of them is negative in theory, when VA or the adjudicators looking at those two examinations, sure it seems like the evidence is in equipoise, but maybe the one that’s positive, this person didn’t review the entire file, but the negative opinion, that person did. Maybe the person, one of them interviewed the veteran, the other one is based entirely on the record. So, there’s a lot of variables that go into considering the benefit of the doubt and it’s not really black and white.

Brad: Well, how does this apply to ratings? I know it seems like we’ve been talking about service connection when you’re trying to get it connected to service, but can someone talk about how this works with ratings or other potential benefits that the veteran is seeking?

Christian: Yeah. So, when you’re thinking about an increased rating, the benefit of the doubt is supposed to apply when your disability might not exactly fit what the higher rating is supposed to be, but it more nearly approximates. So, it’s closer than the rating that the veteran has now, close enough to that rating to afford the veteran the benefit of doubt in terms of this- what they assume is the severity of the veteran’s condition.

Brad: So, would that be a little bit like being stuck in an elevator between floors, if you’re stuck a little bit closer to the 10th floor than the 9th floor?

Christian: Exactly.

Brad: Okay. So, let’s talk a little bit about VA’s rules on favorable findings. So, what are VA’s rules? And by favorable findings I’m talking about where the VA in one of their decisions has said, “Yes, Mr. Veteran. You were at this place”, or “Yes, this car accident occurred”, or “This battle we concede this battle did occur.” What does that mean for a veteran in his claims?

Courtney: Yeah. So, in the most general sense if VA makes a favorable finding in the case, VA is then bound by that favorable finding. So, generally they can’t change their mind. If they’ve already conceded this incident occurred in service they can’t in a future decision decide, “No, actually that’s not what happened here.” I think maybe you can talk a little bit more about how it applies at court and it’s relevant for.

Christian: Yeah. So, at court when the Board makes favorable findings it’s really important to remind the court that those have occurred because they don’t refer to VA as a hamster wheel for no reason, right? Claims go up, they come back down, there’s more evidence, there’s more decisions, there’s different decisions made, there’s a lot of people who are involved. So, it’s really important to make sure that those favorable findings continue on throughout the whole course of the VA appeal, and also once you get to court. So, at a particular place is a really great example of it. “Yes, the veteran was in Vietnam”. “No, the veteran wasn’t in Vietnam”. So, as an advocate or as a veteran that’s advocating for themselves you can point to the fact that, “I’ve already been found to be in Vietnam”, and that’s obviously incredibly important for a lot of our herbicide exposure cases and things like that. So, we typically will make a big deal when the VA changes their mind about a particular favorable fact.

Brad: And again, we’re speaking in generalities, there are some times where that’s not going to be the case.

Christian: Absolutely. When it’s completely wrong and there’s a lot of law that goes into that but–

Brad: We’re speaking generally.

Christian: Absolutely, absolutely.

Brad: So, let’s talk a little bit about VA’s regulation regarding the attitude of rating officers, it’s 38 CFR 4.23. What is that? Is it enforceable, is it useful to try to bring this up in arguments you’re making for a claim?

Courtney: So, I think this generally applies to your personal interactions with VA employees. So, what it means basically is that rating officers cannot use their personal feelings or personal interactions that may have been negative with the veterans against the veterans when they’re adjudicating claims. If for some reason the veteran or the advocate feels like that is the situation in a case that you’re working on, I think it would be important to be as specific as possible and detailing the interaction with that VA employee or the rating officer if you are going to make an argument that that has played a role in the decision here.

Brad: So, the regulation really talks about that the raters or the rating officers are supposed to show the veterans a certain amount of the due respect that they’re owed as well as not letting their personal feelings influence their decision-making, even if they’ve dealt with a veteran who’s very frustrated or angry, or who has lashed out during the process.

Courtney: Absolutely, yes.

Brad: Okay. So, sort of getting to the heart of this, does VA do a good job of providing veterans with the benefit of the doubt and of providing a non-adversarial system? Both, let’s talk about at the agency level where it’s involved and then also at the court level at least as it’s related to benefit of the doubt.

Christian: Sure.

Courtney: Oh sure I can start with the agency. So, I think in general saying that they do a good job, I would describe it as maybe inconsistent. I think it varies on a case-by-case basis and what you can do as an advocate is the veteran or as the veteran, is be mindful of these regulations and these rules, and to the extent that’s possible, make sure that VA is doing their part in it and playing their role to the extent that you need them to assist veterans, or to get these claims moving through the VA process.

Christian: I would say that once the case gets to the Board because those are the only decisions that I generally really look into, I think inconsistent is a great word. Because the challenges that a Board member faces is weighing that evidence to see if it’s equal. I frankly think they do the best they can. They’re trying to be fair. They try to apply it but some of these cases are really complicated. There’s a lot of evidence in these cases and it’s not as consistent as it should be because it makes it hard for veterans to understand when they’ll be afforded the benefit of doubt, what evidence they need to submit so they know that the benefit of the doubt is going to go in their favor. So, I think they do the best they can and I think inconsistency is a great way to sort of describe what we see when the benefit– because I see the benefit of the doubt applied. We don’t appeal those decisions but in other parts of the decision that were favorable to the veteran and then it won’t be applied in a section that I’m trying to help the veteran out on. So, it’s a little all over the place.

Brad: So, this going to be more of a statement but I’ll phrase it as a question for a sort of a yes or no answer. That is, would you say that when we talk about the stated and unstated goals of VA adjudicators, and when I talk about goals, we talk about performance standards that employees have, we talked about the numbers that are projected and promised to Congress in terms of numbers of decisions made at both the claims and appeals level. When you look at all of those pressures, do you think it helps or hurts the ability of VA to maintain that non-adversarial approach to benefits decisions? Keeping in mind that they’re under this crush of decisions and they’re being forced to do a lot of cases per year.

Courtney: I think generally it can be harmful to the idea of it being a non-adversarial system, just speaking to your point about them being under this pressure to get out a certain number of decisions. VA has a backlog as it is and they have a lot of cases they’re trying to work through. With the pressure of having to meet certain quotas, they’re trying to work through them faster which means they don’t, might not feel like they have as much time to fulfill parts of their duty to assist where otherwise they really should be doing it.

Christian: I would agree.

Brad: That’s consistent, just to provide a little background I worked for VA for a number of years, and that’s consistent with my experience that most of the folks at VA are trying to do the right thing or trying to be helpful. There’s always a couple bad apples in every bunch but it can be very challenging given the crush of work. The other issue is that the VA employees in addition to wanting to and being tasked with helping veterans, are also being tasked with protecting the purse as they say, which are the taxpayers of the United States. Some of the employees take that position very seriously sometimes to the detriment of the veteran claimants. All that being said. Let’s talk a little bit about the introduction of attorneys into the VA appeals process, and how has that changed the nature of this non-adversarial process?

Christian: Yeah. I think an unintended consequence of the introduction of attorneys to this process is making it a bit more adversarial. I can’t really speak to the origins of it and why, but law has typically been an adversarial practice. So, aggressive representation of a client and representing a client to the best of your ability and fervently, right? Those are our ethical obligations as attorneys. Obviously we’re doing everything we’re trying to do to help our veteran clients but I do think it causes a little bit of tension where when there were veterans and just veteran service organizations maybe there wasn’t quite so much of that.

Brad: Do you think that’s partly because attorneys are used to doing everything in a more formalized fashion, meaning they expect responses to their letters, they rely- attorneys rely on very structured sort of pleadings or submissions, that’s the word I’m looking for. VA itself has become more formalized, isn’t that right with they’re requiring more forms now? They’re not allowing as many informal claims, you used to be able to file something on a napkin, right?

Courtney: Yes, as an appeal or a claim. Now there’s specific forms required both when you’re filing a claim or when you’re filing appeals at different parts in the procedural process. If you don’t, if the form is not included as part of your appeal, VA is likely going to deny it based on that.

Brad: So, does that argue for a system that’s becoming more complicated than for veteran claimants or is it just that they may need some additional assistance in completing their claims and appeals?

Courtney: Probably a little bit of both. I think it definitely means that they might need a little bit more assistance in completing the appeals process and understanding the use of the forms and how they should be filled out correctly, to make sure that they’re continuing the appeals of all the issues they want to be continued.

Brad: So, let’s talk a little bit about many veterans believe that VA is looking to deny their claim from the moment they file the claim. In addition they believe that VA develops evidence to make sure those claims are denied. So, it’s often been referred to as the duty to sabotage. We’ll give that credit, I always heard- hear Ken Carpenter, a very prominent attorney mentioning it. Anyways, can both of you talk a little bit about this development to deny and overdevelopment of the record, and what do you see and how does that work in practice?

Courtney: Yeah. At the agency level I think the most common scenario we see it at is where we’re arguing that the record is fully developed, if not overdeveloped, and the issues made its way to the Board. There’s a substantial medical evidence in the record that supports all the elements of the claim that the veterans filed whether it’s service connection or increased rating. The Board will still remand the issue specifically for another VA examination, even though we’re saying, “This exam’s not necessary. There’s already substantial medical evidence in the record to support it.” So, that’s kind of the typical scenario we see at the agency level. In scenarios like that when that does happen and VA remands for an examination, as the veteran or as the advocate you still want to make sure that you’re going to that examination and that it’s getting completed even though we’re arguing it wasn’t necessary, because otherwise VA will just use your missed exam as a reason to deny you again. So, it’s important that you are being compliant with the Board’s remand instructions. But once the exam’s complete as the advocate or the veteran again, you can even argue against that examination perhaps it’s inadequate and you can attack the exam based on that. You can make the argument when it’s going back up to the Board that the exam wasn’t necessary, and again allude to all of the other relevant positive evidence of record that you were relying on before. If you got a medical, your own private medical opinion before and that’s what you were relying on before the case got to the Board, in some cases you might want to have that same expert or expert address the VA examination that was done on remand. Because a lot of times that the examiner will have addressed the private opinion that you got. So, those are all different things you can consider doing in situations like that.

Christian: Yeah, once you get to the Board, Courtney’s scenario is what I see played out most often, there’s a claim, there’s some evidence developed that is favorable to the veteran, and then the VA will find that there’s something wrong with that opinion. Because there’s kind of a conflict between maybe what some treatment provider said and that examination said, then they get a VA examination that is negative. Then because of the problems they found in the positive opinion, the Board will weigh the negative opinion more heavily and deny the claim on that basis. So, that’s what we sort of see once we get to the Board and then we argue at court.

Brad: So, it’s common for VA to favor its own experts over the experts that the veteran has brought in, be it a treating physician or treating clinician.

Christian: That’s been my experience. There’s nothing written down that says that that’s supposed to happen, they’re supposed to treat it.

Brad: In fact everything supposed to be treated equally.

Christian: Exactly, sure. In fact it’s written the opposite way. So, everything’s supposed to be treated the same but in my personal experience, and that’s all that I can speak to, it seems like that does in fact happen.

Brad: So, how does a veteran use these-this process, these laws and regulations to their advantage? For example, what happens if they get an exam that they don’t think they should have gotten? Or they have a bad examiner or records are not received? What can a veteran do to help his claim?

Courtney: Yes, let’s take the example you gave of the veteran gets an examination that they feel is a bad examination. You can argue for the inadequacy of the exam and basically you’re arguing that because this examination was inadequate. VA hasn’t fulfilled its duty to assist because they haven’t provided an adequate examination to really assess the merits to what you’re claiming or whatever claim it is that you have pending.

Brad: So, would an example that be you go in for a knee examination and the examiner never asks you to pull up your pant leg to look at your knee, and it last three minutes. Or they ignore everything that you’ve said or they don’t seem to perform any tests and sort of brush you off.

Courtney: Yeah, and what you can do as a veteran or the advocate is submit a statement detailing your experience at the examination to point that kind of information out and argue for the inadequacy.

Christian: Absolutely, and then if you have to go to the Board and then to court that will help you be able to argue that the Board was on notice that there was something wrong with the examination, and then they chose not to do anything about it which would be in violation of their duty and VA’s general duty to assist.

Brad: So, based off of our the thread that comes through our conversation, seems to be that this is non-adversarial system it’s certainly designed to be that, but in practice there are times when it’s that maybe VA is not always living up to the obligations that it’s set for itself and that it’s set in law. Is that a fair statement?

Christian: I think so. Yeah, absolutely.

Brad: Well that being said that’s most of what we have, we want to put it out there if there’s any questions, out in Facebook Live land, and apparently there or not. Well again, it’s been a pleasure having you all with us. This is Brad Hennings from Chisholm Chisholm & Kilpatrick. Please contact us via Facebook, leave a comment, ask any questions. Thank you Christian McTarnaghan and Courtney Ross, attorneys here at Chisholm Chisholm & Kilpatrick. And best of luck. If you’ve got any questions please again, contact your representative if you have one, and that can be a veteran service organization or service officer, an accredited VA agent or a VA accredited attorney. Thank you so much.

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