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.

Both the Freedom of Information Act (FOIA) and the Privacy Act (PA) give the public the right to request access to records held by Federal agencies.

FOIA applies to all Federal agency records with access rights generally given to “any person.” However, one of the FOIA exemptions permits the withholding of information about individuals to protect their personal privacy.

The Privacy Act applies to only those Federal agency records that are in a “systems of records.” A system of records contains information about individuals that is retrievable using a name or personal identifier (e.g., claim file number). Privacy Act access rights are given only to individuals or their appointed representatives who are the subject of the records sought.

Chronicity and Continuity

Chronicity is established when the disability has been present since the in-service disease, injury, or event occurred. In other words, you have had this residual condition to one degree or another since the disability occurred and leaving active duty.

The second element to prove a nexus is continuity. Continuity means you have been receiving treatment for the condition since leaving active duty. In the absence of clear evidence of continuity and chronicity, the VA may order an opinion examination and ask the examiner to determine if the current disability is “at least as likely as not” related to the in-service disease, injury, or event.

Establishing entitlement to compensation from the Department of Veterans Affairs for service connected disabilities requires the claimant meet three criteria.

To receive a service-connected disability benefit a veteran must have suffered a disease, injury, or event that resulted in a disability while on active duty, or had a pre-existing condition that was aggravated by the veteran’s service. For this paper these 4 elements that caused the in-service disability will be referred to as disease, injury, or event.

The first criteria are an in-service disease, injury, or event that resulted in a disability. This disease, injury, or event must have occurred during a period of active duty. Since medical evidence is paramount it is usually helpful if medical treatment was provided and recorded in your service medical (treatment) records while on active duty, but not absolutely necessary. The lay statement blog discusses how a claimants applying for a service connected disability can overcome the lack of documented treatment for a disease, injury, or event while on active duty.

Handling of Medical Records

The attorneys and the Firms experienced staff go through each and every page to determine what medical evidence will support the veteran’s claim in accordance with Federal Veterans Laws Rules and Regulations. My Firm and many other attorneys’ offices, employ medical professionals to do an independent chart review to determine if the standard of care for the veteran is in accordance with treatment provided to the veteran. Our clients are also referred to independent medical doctors and psychiatrist who evaluate the totality of the veteran’s medical record.

Only a medical professional may make a medical opinion. Even though you may understand what disease or injury caused your disability, in most cases an opinion only becomes evidence when rendered by a medical professional.

Expertise with Administrative Law and Court Rules

Attorneys are licensed by State Bars and have fiduciary duties to their clients. Additionally, attorneys have professional ethical requirements to the Court and their clients. This means the attorney must expertly handle your case.

Contrasting this with a VSO I once had an experience with as my representative on a claim for myself, the VSO employee / National Service officer was fast to state legal terms like “hearsay” and cite regulations showing she did not have to do more than fill-out the claim form. Her understanding of hearsay, however, was applied incorrectly. The documents I needed were records. Hearsay applies to spoken testimony, and there are exceptions to admit even hearsay. The record I wanted had an exception allowing its use. This particular VSO had fought over 5 years not to fill-out a form supported by evidence. Once I took the claim from the VSO, I received payment for the benefit from the DoD within 2.5 months. Unfortunately the government will not pay interest on the back pay, and in-addition to losing the interest I lost the use of this money for the 5 years the VSO fought not to fill out one paper.

Attorneys Accountability

VSOs are not accountable, if they miss a deadline or fail to handle your claim in a professional and thorough manner your claim and remedies against the VSO are very limited. Your VA benefits claim on the other hand may have lost its effective date, which will cost you money the VA would have paid should you win your appeal.

Thinking about your military training, you are taught the basics and then the advanced tactics to perform your Mission. Of course you can handle your VA claim by yourself, with a VSO, or an attorney. But do you have the advance skills to know and handle all the legal and medical issues? As the adage states “a person who represents himself has hired a fool.” The reason for this is it is very hard to be objective when you are representing yourself. An attorney on the other hand, is trained to be objective and present your evidence in a manner best supporting your claim.

Benefits of an attorney

Attorneys unlike Veteran Service Organizations (VSO) are accountable, have expertise with administrative law, court rules, and understand how to articulate a position with evidence to prove the claim. Once your case reaches the CAVC, this Court only reviews the record it has before the court. The record consists of almost everything submitted during the VA claims processes culminating with the BVA denial of the veteran’s claim. Waiting until the a claim reaches the CAVC to hire an attorney means your “record” is established, and the attorney must now show error occurred at the VA or BVA.

Once a case is at the CAVC the case becomes an adversarial case. The VA no longer has a duty to assist you. The VA will be represented by their attorneys whose job it is to represent the VA’s position. At this point the BVA (a part of the VA) has determined your claim is without merit or you are not entitled to the benefit. Once at the CAVC, you cannot now “prove your claim” by calling witnesses and “proving your case at trial.” The trial and evidence phase are over and lawyers from the VA will be in the U.S. Court of Veterans Claims to argue the VA’s position your claim is without merit and the Court should uphold the BVA denial.

Why You Should Hire an Attorney for Your VA Claims

A couple of days ago I received a call from a veteran who informed me he was told not to hire an attorney until he went to the U.S. Court of Appeals for Veteran’s Claims (CAVC). The veteran described the old law passed after the Civil War. The Veteran Service Officer who had advised the veteran to wait to hire an attorney was describing the law prior to passage of Public Law 109-461 in December 2006. The Civil War era law was rescinded in order to help veterans. Why not take advantage of the new law designed to help you with your veteran’s benefits claim?

Public Law 109-461, The Veterans Benefits and Health Care and Information Technology Act 2006, now allows a veteran to hire an attorney after the veteran receives a rating decision and the veteran sends in a notice of disagreement with the respective veteran claim to the VA.