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YOU NEED EVIDENCE WHEN FILING A VA CLAIM -- "JUST THE

FACTS, MA'AM" -- Veterans' Advocate Jim Strickland explains

all about the evidence you'll need when you file.

 

 

Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.

If you would like to contact Jim about his columns, you can email him here...

The archive of Jim's articles is here...

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You're at the VFW having a beer, seeing some friends when a stranger stops in. He sits near you, orders a beer and you strike up a friendly conversation. You discover you may have known some of the same people 35 years ago. As you talk, the stranger gets a little pushy.

He insists he knows you and remembers you well. There were football pools on base back then and he won a big one. His PCS orders had come down, he was in a rush to make his travel deadlines and the guy who was holding the winner's money avoided him. He shipped out without his winnings. He says he remembers you as the one that held that money.

“You owe me!”, he insists, “With interest.”

He gets louder. You search for memory of a football pool. You may have bought in once or twice, but you weren't much of a gambling man then or now. You never won anything and you weren't accountable for any of the money.

He starts to get in your face. “You owe me money. I want it right now.” You decide you only have one choice; You tell him, “Prove it. If you'll provide me the evidence of your claim, I'll write you a check.”

Now he's upset. How dare you challenge him like that? “Hey. Are you calling me a liar dude? I don't need to prove a damn thing to you. I know what I know. It was you. You know it was you and I know it was you. You owe me money, man.”

You aren't about to give away your money to a guy with such a crazy claim. But now some doubt creeps into your mind. Maybe you did something but you don't remember it? It was a long time ago. Could it have happened just like he says?

You tell the guy, “I want to give you the benefit of the doubt. If I owe you, I'll pay you. But you have to prove that I owe you or there's no way I'm writing a check.”

He opens his cell phone and he calls his wife. He explains the situation to her. He hands you the phone and the wife informs you she recalls him telling her that this is what happened 35 years ago. She remembers he was angry that he didn't collect his winnings. She testifies he's right. You owe him.

You end the call and hand his phone back and tell him that isn't good enough. She wasn't there, she never saw you or anyone else involved with this and she can't really back up the story.

“Are you calling my wife a liar dude?” The guy is clearly impatient with your utter stupidity and unbelievable arrogance.

Eventually he walks away mumbling about calling his lawyer and his Congressman. As he leaves, he yells that you're not a “real” Veteran...a real Veteran would understand.

He gives you a one finger salute. You're befuddled from the encounter but you grab another beer and turn your attention back to your friends. Just then, a stranger walks in and sits near you...

Evidence. All you wanted was evidence that he was being truthful and you were ready to give him money. Without evidence, you couldn't believe his story.

A quick search on the Internet to define the word “evidence” brings us, “Any information that tends to prove something, facts that indicate whether or not something is true; proof. Information that tends to prove a fact. A fact presented before a court such as a statement of a witness, an object, etc., that bears on or establishes a point in question.”

In the case of the wife providing evidence for her husband, she was offering “Hearsay” evidence. Some of the definitions include, “Statements offered by a witness, based upon what someone else has told him/her, and not upon personal knowledge or observation. Such evidence is generally considered inadmissible. Evidence based on what someone has told the witness and not of direct knowledge.”

Although there are thousands of mentions of evidence in all of the millions of words published around VA disability awards, a strict definition of precisely what VA must have to award you a disability benefit is elusive.

Our goal is to support an award of a service connected disability rating from VBA. From the VBA Internet site we have:

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38 CFR Book B - Adjudication, Ratings and Evaluations; Service Connection


§3.303 Principles relating to service connection.


(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.

__________________________________________


That tells you that you must have facts to prove that your injury or illness has some cause and effect relationship with your service.

Truth. A fact is true. “The meaning of the word truth extends from honesty, good faith, and sincerity in general, to agreement with fact or reality in particular.” http://en.wikipedia.org/wiki/Truth

The Social Security Administration oversees another disability program; Social Security Disability Insurance or SSDI. Although there are differences between the VBA and SSA disability programs, each will rely on a foundation of medical documentation to support a claim of disability. The SSA speaks in somewhat plainer English to make it simpler to understand and provides this for us:

 

Evidentiary Requirements

Medical Evidence

Under both the Title II and Title XVI programs, medical evidence is the cornerstone for the determination of disability.

Each person who files a disability claim is responsible for providing medical evidence showing that he or she has an impairment(s) and how severe the impairment(s) is. However, the Social Security Administration (SSA) will help claimants get medical reports from their own medical sources when the claimants give SSA permission to do so. This medical evidence generally comes from sources who have treated or evaluated the claimant for his or her impairment(s).


Acceptable Medical Sources

Documentation of the existence of a claimant's impairment must come from medical professionals defined by SSA regulations as "acceptable medical sources." Once the existence of an impairment is established, all the medical and non-medical evidence is considered in assessing impairment severity.

"Acceptable medical sources" are:

* licensed physicians (medical or osteopathic doctors);

*licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only ;

*licensed optometrists, for purposes of establishing visual disorders only (except, in the U.S. Virgin Islands, licensed optometrists, for the measurement of visual acuity and visual fields only);

*licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and

*qualified speech-language pathologists, for purposes of establishing speech or language impairments only. For this source, “qualified” means that the speech-language pathologist must be licensed by the State professional licensing agency, or be fully certified by the State education agency in the State in which he or she practices, or hold a Certificate of Clinical Competence from the American Speech-Language-Hearing Association.

The SSA also provides good advice about the details an applicant should submit about their condition by saying;
 

Evidence Relating to Symptoms

In developing evidence of the effects of symptoms, such as pain, shortness of breath, or fatigue, on a claimant's ability to function, SSA investigates all avenues presented that relate to the complaints. These include information provided by treating and other sources regarding:

*the claimant's daily activities;

*the location, duration, frequency, and intensity of the pain or other symptom;

*precipitating and aggravating factors;

*the type, dosage, effectiveness, and side effects of any medication;

*treatments, other than medications, for the relief of pain or other symptoms;

*any measures the claimant uses or has used to relieve pain or other symptoms; and

*other factors concerning the claimant's functional limitations due to pain or other symptoms.

All too often a Veteran may submit a claim for back pain and only say, “I have back pain.” That accomplishes very little and gives a rater almost no information when compared to the 7 bullet points above.

The vagaries of collecting good evidence for use in the VBA claims process is well recognized. In GAO report GAO-07-562T http://www.gao.gov/new.items/d07562t.pdf  we learn, “For years, the claims process has been the subject of concern and attention by VA, the Congress, and veterans service organizations, due in large part because of long waits for decisions and large claims backlogs...In fiscal year 2006, it took an average of 657 days to resolve appeals. Several factors may be affecting VA’s claims-processing performance (such as) continued increases in the number and complexity of claims being filed, and difficulties in obtaining the evidence needed to adjudicate claims in a timely manner, such as military service records.

When a veteran submits a claim to any of the Veterans Benefits Administration’s (VBA) 57 regional offices, a veterans service representative is responsible for obtaining the relevant evidence to evaluate the claim. Such evidence includes veterans’ military service records, medical examinations, and treatment records from VA medical facilities and private medical service providers. Once a claim has all the necessary evidence, a rating specialist evaluates the claim and determines whether the claimant is eligible for benefits.”

You're providing an attestation of truth in your statement to VBA each time you sign a document. Look for the not-so-fine print that says, “I CERTIFY THAT the statements on this form are true and correct to the best of my knowledge and belief. PENALTY: The law provides severe penalties which include fine or imprisonment, or both, for the willful submission of any statement or evidence of a material fact, knowing it to be false.”
 

Most of us know what the truth is. We aren't all so sure what evidence the VBA demands. In a nutshell, the VBA only requires that you provide them with convincing evidence that your claim is true.

The VBA is required to give full consideration to anything you submit as evidence. You may submit any document, statement, photograph, ship's log, duty roster, newspaper reports, calendars, tape or video recordings or most anything else you can think of as evidence in support of your claim and the VBA will consider it. In just the last 5 years, the amount of information to support your claim that is freely available on the Internet has increased exponentially.

Were you a Marine involved in recon back then? Want to see the reports and even some maps of your patrols? Look here http://www.clemson.edu/caah/history/
facultypages/EdMoise/marspec.html

Did you serve on the U.S.S. Boyd between 1942 and 1945? Click here to see what you were doing and when http://pages.cthome.net/boyd544/Diary01.htm

The best evidence is that which was produced at the time of the event that you claim caused or contributed to your condition. If you were wounded in combat, the medical record of your treatment is as good as it gets to establish that something actually did happen. If there is no medical record for any reason, a record of your assignment at the time, records of that unit's history of combat and physical or mental scars that are apparent and easily connected to the event will do just fine.

The Veterans Claims Assistance Act (VCAA) under 38 U.S.C. § 5103A, requires the VA to make "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim."


New sections 5103A(b), (c), and (d) specify that the VA must:

(1) make reasonable efforts to obtain relevant, non-federal records that the claimant identifies and authorizes the VA to obtain;

(2) continue to try to obtain existing service medical records and additional records in control of other federal agencies (unless it is discovered that the records do not exist or are unobtainable); and

(3) provide a medical examination and/or opinion if the VA finds the veteran has a current medical disability or symptoms and there is evidence to suggest that the current symptoms or disability may be related to an event, injury, or disease which took place in service.

Although the VBA has a Duty To Assist you in developing your claim, that duty is limited by resources. If you don't hunt down your own evidence and you wait for the VBA to do it for you, you'll wait a long time and you won't achieve the desired results.

Many Veterans rely on “Buddy Statements” to support their claims if records are missing or incomplete. These Statements In Support of Claim http://www.vba.va.gov/pubs/forms/vba-21-4138.pdf  may or may not be useful to you depending on the details that a buddy is able to provide.

If your buddy was with you and he has received awards or benefits, has documentation of his role at the time and attests that you were in that fighting hole with him, you probably have a good piece of evidence.

If your buddy statement is from a guy who heard about you but wasn't actually a witness, the statement is weaker.

If your statement is from your wife, girlfriend, mom or pastor...unless they were witnesses, don't bother. The VBA doesn't really care that your neighbors like you or that your minister has heard your stories or even that your wife still loves you.

A little thought up front in the process will prevent years of frustration. Submit your applications for benefits to VBA perfectly composed and completed and then provide necessary evidence and you'll have a winner.

As Sgt. Joe Friday always said, "Just the facts, ma'am." He was right you know.

Next up...writing letters to VBA.

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Larry Scott  --