Military Veterans' Lawyer Blog
Title 38 specifically, 38 U.S.C. § 5103A – Duty to Assist Claimants, establishes and the Court of Appeals for Veterans Claims has held the threshold for VA’s duty to assist veterans with their claims is low. Subparagraph 5103A(a) states “the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” Court holdings provide a veteran’s lay statement describing the nature of the disability, including such things as the initial incident/illness/injury, symptoms associated with that event and the continuing symptomatology and treatment, if credible, is sufficient to trigger the VA’s duty to assist.
Lay Statements
Examples of lay statements supporting a claim when medical documentation is not available would be a knee disability by a former paratrooper who is injured during a combat jump or a claim of tinnitus (ringing in the ears) by a former artilleryman claiming exposure to acoustic trauma. Underlying this, of course, is the fundamental requirement for a current residual, chronic disability — a current disability. A diagnosis by a physician is not necessary, but you must be able to clearly describe a residual and chronic condition.
Why is this important? Credible statements provide you with an alternative when there is little or no medical evidence to support your claim for disability. The statute and the Court’s review and guidance provide the guidelines and a strategy for overcoming the lack of a medical opinion on whether the current residual disability is related to the described in-service disability. This medical opinion is necessary to establish a service connection when service medical records are silent or equivocal in verifying the in-service disease, injury, or event and medical evidence of treatment since active duty is lacking.
How you maximize this strategy to help trigger VA’s duty to assist in obtaining the medical examination? It is important to provide as much information as possible when making your claim or appealing a VA decision. For example, “I was running inside the company compound at Long Bihn Post, Vietnam on July 5, 1968, when I stepped in a hole and twisted my ankle”. Your description of symptoms must be directed at clearly describing how you were affected by the in-service event. Simply stating “I had pain” is probably not enough.
For example, “my ankle immediately started swelling, became bruised, was throbbing and I could not bear weight on it” is more descriptive and quantifies the pain for the claim. Describe the pain, i.e., sharp, throbbing, dull and achy, etc. You should describe what, if any, treatment you received following the in-service event. Your description should provide as much detailed information as possible, and should contain enough information to verify or raise the presumption the disease, injury, or event occurred.
The detailed information you state should include dates of treatment, provider of treatment, and type of treatment. These details are important. For example, you should describe who, what, where, when the treatment was received such as “on July 6, 1968, I was seen by the company medic, was given aspirin and had my ankle wrapped with an elastic bandage.” This information described to treatment in enough detail to document the in-service disability.
Detailed information about treatment after service for the in-service event should also be provided. This information should be specific and designed to clearly describe the on-going nature of symptoms following active duty. For example, “My ankle flares up several times per year”. “My ankle is weak and easily re-injured resulting in renewed swelling, pain and inability to bear weight. The pain is initially throbbing and turns into dull and achy.”
You should describe what kind of treatment you obtained for these recurrent flare-ups. For example, “since the medic gave me aspirin and wrapped my ankle, I use over-the-counter pain medications (Motrin), use an Ace wrap and a cane when I have problems with my ankle.” If you cannot provide this type of information then the VA’s duty to assist with your claim will likely not be triggered.