Tips for Your VA Buddy Letter

Video Transcription:

Courtney:  Good afternoon, and welcome to CCK live with Chisholm Chisholm and Kilpatrick. I am Courtney Ross and I am joined today by Nick Briggs and Rachel Foster and today we are going to be talking about tips for your VA buddy letter. So let us jump in with I think kind of the basics. Rachel, can you tell us what exactly we mean when we say a buddy letter? What is a buddy letter?

Rachel: Sure Courtney. So a VA buddy letter also known as a lay statement or lay evidence is a credible statement in support of a claim for VA disability benefits. The statement can serve as a valuable piece of evidence in your VA claim. So just for some examples, buddy statements are important and can be used to fill in gaps of information missing from treatment records or service records. They can also serve as a witness statement for an event, injury, or illness in service and they can be particularly useful for corroboration. They can also provide clarification and better illustrate the veteran’s current situation and how their disabilities impact their daily life. Essentially, they can be used to help support a claim for service connection or an increased evaluation.

Courtney:  Thanks, Rachel. So it sounds to me like these could be a really important piece of evidence in a veteran’s case. Nick, can you talk a little bit about the importance of these letters and how it might impact?

Nick: So lay statements are important largely because they are evidence in the same way that medical evidence is evidence meaning that the board and the VA need to consider lay statements provided by the veteran and people who know the veteran. The important piece of information which we will touch on a bit later is the idea of competency meaning that the statement cannot just be from anyone, it needs to be from someone with sufficient personal knowledge of the thing that they are testifying to, be it how the veteran’s conditions affect them on a day-to-day basis, or somebody who specifically witnessed an incident that the veteran experienced in service. So long as there is some level of personal knowledge of the thing that they are reporting that is evidence that VA needs to consider when adjudicating a veteran’s claim and although lay evidence is not as important as medical evidence, depending on the question, it is still something that needs to be considered. When it comes to competency, obviously, a veteran can say certain things and they cannot say certain things. For example, they cannot attribute a specific symptom to a specific medical diagnosis. That is something a doctor needs to do. But as long as they are testifying to something or the buddy is testifying to something that they have personal knowledge of and have the knowledge to speak to, it is something that VA needs to consider before they can deny the issue.

Courtney:  What might we include in these letters if a veteran or a buddy of a veteran was submitting a letter to VA? I think the answer depends on what you are trying to prove to VA so what kind of claim you have pending. Buddy letters can speak to the impact of a physical or mental condition on the veteran’s day to day life. It could also speak to an injury, an event, or symptoms in service that they witnessed. So the content will really depend on what exactly the veteran has pending and what they are trying to establish to VA. For example, if they are trying to corroborate in an in-service event or an injury and they can obtain a buddy statement from a service member. To Nick’s point, a statement should include information about why the individual has personal knowledge about the event, and then they will want to include some details about the event. So detailed description of what they witnessed if they were involved in the event. When and where the event or the injury occurred in service? If the statement is going to be more focused on the symptoms of a veteran’s condition and how it has impacted their day-to-day life some information you might want to include is how the veteran is impacted by their condition? What the person is able to witness? How the veteran has changed since service and how they have noticed, how the condition has become more severe? And if they are aware of any treatment the veteran is getting for their condition, maybe increased treatment compared to a few years ago, anything that the person is able to witness and have that personal knowledge about is the types of details that you want to include in a buddy letter or statement that you are submitting to VA. So with that said, Rachel how would you suggest that people organize a buddy letter or structure it given that there might be a variety of information, they want to include in the letter.

Rachel: We would recommend that buddy letters be organized into four main sections that are structured in a particular order. So to start with you always want to make sure that the name is included, the contact information of who is providing the information, and how you know the veteran. If you served with the veteran and you are corroborating an in-service stressor, it is also important to include the details of that including the unit assigned. The second thing you want to make sure of course is the detail that you mentioned Courtney, what you witnessed in the past or what you are currently witnessing? And third, you want to also describe especially if you are including information about the veteran’s current limitations, you want to describe the veteran’s current symptoms of their disabilities, and also last but not least, you want to make sure that you are signing and dating the statement. Essentially, certifying that you are providing this information to the best of your knowledge and belief.

Courtney:  We have kind of provided some information on what to include in the letters and how to structure them, so my next question is who can actually write these letters? Who can veteran’s reach out to provide some of this information? I mentioned service members and other service members of the veteran served might be able to provide some information on in-service events or injuries, but Nick what are some other examples of individuals that veterans might ask to provide buddy letters to VA.

Nick: Again, the key question comes down to what it is that you are trying to get or provide information on, and in providing that information, it is got to be somebody who has personal knowledge of the thing that they are reporting again. Again, we talked about the idea of competency which will get into but as long as it is a competent individual who is 18 years old and has direct first-hand knowledge of the event, they can describe what they saw how they experienced it. So when it comes down to that who can provide that, it is anybody who meets those criteria, it could be a fellow service member. It could be a spouse, a friend, a co-worker, in the case of TDIU appeals, it can be an adult child who helps their parents with the activities of daily living because of how their conditions affect them or any other witness that has personal first-hand knowledge of the incident and at the end of the day, a veteran can still write a statement on their own behalf. There are certain subjective things like pain that nobody else can really speak to other than the veteran themselves. So they are ultimately going to be the most competent to describe specific aspects of their condition and should always feel free to submit statements to that end.

Courtney:  I think that is a really great point Nick and reminds me to that. You can also get more than just one buddy statement or one buddy letter that you are submitting to be VA, so maybe there are multiple people in your life that have that personal knowledge Nick has been talking about in terms of observing your symptoms or there are multiple individuals that you served with who can speak to your injury and service. Especially, if you are trying to corroborate something like a stressor to get a grant of service connection for PTSD, consider multiple people that you might be able to reach out to. There is no limit on how many buddy statements that you could submit. With that said and we are going to talk about this later in the presentation, the more that you submit the more potential there might be for some inconsistency, which can cause some issues, but I will not jump ahead just yet. We are going to cover that in a little bit more detail. So if you do have a or you want to submit a buddy letter, how do you go about doing so? VA does not require any specific form or format to submit a buddy letter or statement on, so you could draft up a word document or write a handwritten letter and VA needs to accept it. But with that said VA also does have some form that an individual who is providing a buddy letter can use to provide information on this, one of them is VA form 21-4138, which is the VA’s form for a statement in support of a claim and one thing to keep in mind is that VA fairly consistently updates forms and creates new forms, and so that there might be a new or were expecting a new updated form early next year as well that is going to be available for to provide lay witness statements on as well. The other one in this form is specific for PTSD cases is VA form 21-0781 and this is specific for statements in support of claims for service connection for PTSD. And again, you do not have to use these forms, but they are available on the VA website and it might be easier if a veteran’s asking someone to provide a statement to provide the form to them as well so that individual kind of can go through the form and fill in the information there. I would also suggest not using the form for more than one statement, so if you are going to get multiple buddy letters or statements to submit to VA, you want to have the individual doing on separate forms if you are going to use the forms that they provide. So generally speaking, Rachel, what are some tips that you would provide to people who are seeking buddy letters? What is, you know, just some general helpful tips for things to keep in mind if they are going to obtain one of these to submit to VA.

Rachel: As you and Nick had mentioned earlier, competency and credibility are very important when we are talking about creating these buddy letters. So in order for VA to consider lay evidence, it must be deemed both competent and credible. So when we are talking about competency, we are really referring as Nick described earlier to the first-hand knowledge of the individual completing the statement, meaning that anyone who prepares a lay statement for a veteran must have personal knowledge of what is being discussed and also whether they have the knowledge base to discuss it. So there would not be able to offer a medical opinion if they do not have the credentials of a physician or medical provider. So credibility speaks to the reliability of what is being said in the statement. A statement can be deemed reliable if it is essentially consistent with the record. Another tip, this one we have said before, but it is very important and it can easily be left off once the body of the statement is completed is always sign and date the document. Those writing lay statements for veterans should always sign and date and indicate how they have this personal knowledge about the veteran’s information and their relationship to the veteran. Following these steps will help to ensure that the VA finds the statement credible. For example, a spouse completing a lay statement for a veteran’s claim should mention the length of time they have been married and or living together to further reinforce and support their ability to talk and discuss about the veteran’s symptoms limitations or what it is that they are witnessing.

Courtney:  Thanks, Rachel. I agree. I think those are two really helpful tips and as you said are things we have kind of been echoing throughout this presentation as well because of how important they are to keep in mind. Nick, do you have any additional tips that you would offer as well?

Nick: First and foremost, try and keep it concise. You really do not want a statement that is three, four, five pages long when it could be a page or less. We really want to focus on the specific facts and details of what is being reported more than some of the other stuff that might make it too long and distract VA from the point which is what you are trying to show or corroborate with the lay evidence. You also want to include your contact information, phone number, address, or email that way if VA has any additional questions about what you are talking about, they can reach back out to you for clarification. Another thing that kind of seems obvious is including the veteran’s name, especially with fellow service members and family members we often see people using nicknames or pet names for friends that do not necessarily specifically identify who they are talking about. So being very clear with the veteran’s full name can be helpful to make sure that VA does not think you are talking about somebody else. And then lastly, you want to make sure that you close the statement with something along the lines of I certify that my statements are true and correct to the best of my knowledge and belief. This is really just an affirmation again that the person providing the statement is attesting to their first-hand knowledge to the best that they can recall.

Courtney:  Thanks, Nick. I think those are all really helpful tips and really important things for individuals to keep in mind as well when they are drafting a buddy letter to VA. I want to circle back to something I mentioned earlier about potential common mistakes to avoid for anyone writing a buddy letter specifically keeping in mind that inconsistencies in the information that a veteran is reporting in a statement or when they receive treatment at VA previously inconsistency with that information and information that someone’s providing in a body letter could cause potential problems with credibility, which as I said is something we have a theme throughout what we are talking about here today. And so some things you can do to help avoid that becoming a problem is, I am going to use the example of a statement you are getting a buddy lay statement, where you are trying to corroborate in in-service event, would say for service connection for PTSD. So it is very likely the veteran who’s always already provided some detailed information or will be providing some detailed information to what happened to them in service. You want to make sure that that buddy statement has information that is not going to be different than what the veterans reported about the event. And so something you can keep in mind is details about the event is important but things like the timing of it you might want to keep it more vague in the letter so that the veteran does not say it happened on April 21st, 1973, and then the buddy statement says it happened sometime in the fall of 1973 because even a small inconsistency like that, VA might pick up on and find either credibility issues with the veteran or of the person who is submitting the buddy lay statement. So you can kind of keep, I mean, one thing to keep in mind is that we might be asking for the veteran might be asking for information of individual information about something that happened decades ago, so it makes sense that there might be some minor inconsistencies with something as specific as the date, but to avoid it becoming an issue with VA, you can keep it more general, so you can just say in 1973 this happened or in the summer of 1973 this happened. That way you avoid being too specific and running the risk of having that potential inconsistency. And the other thing I think that is important to keep in mind too is to never exaggerate or downplay a condition or anything that you as the veteran or a buddy who is providing a letter to VA is providing in the letter. It is always just important to be as honest as possible and then hopefully it decreases the risk of there being any issues with the information provided in the body letter. So with that said, let us assume you take all of those steps and VA still finds an issue with the credibility of the buddy letter that has been submitted. What are some things the veteran can do to overcome that, Rachel?

Rachel: So the answer is potentially another lay statement. You can use the lay statement also for the purpose of offering clarification. So you can explain away those inconsistencies and offer some context for why the prior statements might be inconsistent with the record whether you took those additional steps that Courtney mentioned or if by chance you did not you committed to a date that you were not entirely sure of, you can offer clarification of that later. For example, when claiming TDIU, the total disability based on individual unemployability, VA often asks for a lot of employment history and if that history is remote decades ago, it is understandable that it would be hard to remember the exact details to provide to VA. So it is good to use all of those tips that Courtney gave out of the date to offer some more general dates or just explaining that it is really based on the best of your memory, but it could be an approximation. So yes, you want to try to clarify that information for VA. They make a negative credibility determination. You also want to explain how the person writing the letter has the personal knowledge necessary to discuss what they are talking about, so really reinforcing their competency.

Courtney:  Nick, do you have any additional thoughts on that as well in terms of where procedurally in a case is the lack of credibility finding typically made in a VA and what veterans can do in response to that?

Nick: So one of the problems our veterans that we represent often run into is the fact that the regional office usually is not the one making credibility findings, rating decision, statements of the case, so on and so forth tend to stick to the medical evidence primarily and it usually falls to the board to sort of parse the particulars of competency and credibility. So oftentimes we run into situations where a veteran does not necessarily know that the credibility of their statements and our buddy statements are at issue until it is too late. So there could be a case where the board just issues a board decision outright with negative credibility finding and the veteran never really had the opportunity to explain why their statements were credible because they did not know what is the problem. Another common thing we tend to see is a situation where the board gets the case is they review the statements, and then, they remand for a VA exam to consider the statements. Now, recent case law, Miller versus Wilkie says that if the board does not make an outright negative credibility determination, then there is sort of an implicit understanding that they found the statements credible. So in those situations, if they then get a VA exam that does not consider the statements or rejects the statements because for whatever reason the VA examiner does not trust that they are credible, the board needs to call the examiner on it. They need to make sure that they are considering these statements as credible. And down the road, if the board attempts to overturn or otherwise revised its earlier implicit credibility finding, they need to give the veteran the opportunity to respond per the recent Smith versus Wilkie precedent. Oftentimes the board might not do it because it is a relatively new idea that they need to give the veteran the ability to respond, so it is something that veterans should keep in mind and be proactive about when they can. You can always request a copy of your VA exam and if you see any issues with how the examiner treated your lay statements, you should point them out. You should also consider reaching out to a legal representative if you are unrepresented because these issues can get complicated quick, especially, if you end up needing to file an appeal with the Court of appeals for veterans claims. If the board ultimately denies your case based on that negative credibility finding.

Courtney:  And Nick just to confirm when you say board, you are referring to the board of veterans appeals.

Nick: Yes. Sorry.

Courtney:  I think we have covered a lot of really great information today. Do you Rachel or Nick have any final thoughts on this topic that you want to share?

Rachel: The only thing that I am going to add is just to reinforce how powerful a tool providing a lay statement can be with VA’s improved decision notice, it would be a good idea just to take a look at that decision if they are denying a benefit that you are seeking whether it is service connection or an increased rating and see if one of the reasons that they are denying it is one of the things that we talked about today, corroboration of a stressor, lack of documentation of an in-service injury or event, or even a gap in treatment records and see if a lay statement could serve you well to fill that gap and support one of the elements needed for service connection or an increased rating.

Courtney:  I agree. I think that is a really great point. Nick, do you have any final thoughts?

Nick: Yeah. The Gap filling that Rachel mentions is especially important and it is important when talking about this sort of interplay between lay statements and medical evidence because generally speaking there might not be medical evidence to corroborate every symptom or every report of symptoms that a veteran has and VA cannot rely on the absence of like corroborate of medical evidence to find a better enough credible. If everything else is silent then the veterans lay statements regarding their symptoms, how long they have experienced them, so on and so forth as well as buddy statements along those same lines really is the only credible evidence regarding symptoms during those gaps that the board can consider.

Courtney:  Thank you both so much for providing all of this information today. I just want to remind the viewers as well that you can find more in-depth information on a variety of veteran’s topics on our blog on our website cck-law.com, in our YouTube videos, and I encourage you to keep up with us on our Facebook page or Instagram page and our Twitter page. Thank you again Rachel and Nick have a great afternoon.