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Leo Dougherty is a veteran who served in the US Navy from 1965 to 1969. He is an Accredited Claims Agent and member of the National Organization of Veterans Advocates.
02/08/2012 Veterans’ Court Needs Judge With VA Claims Experience
On November 18, 1988 the Veterans’ Judicial Review Act of 1988 created the Court of Veterans Appeals, now called the Court of Appeals for Veterans Claims. Prior to that date, there was no true judicial oversight of veterans’ claims. It took nearly three decades of veterans fighting and urging Congress to create a court to provide judicial review of VA decisions.
Since the inception of the Court, no member of the veterans’ bar has been appointed to serve on the Court. Initial justices were selected from areas of law not at all connected with veterans’ disability law. Some later appointees came from within the Department of Veterans Affairs.
Consequently no judge serving on the Court had genuine insight from an advocacy standpoint.
This may soon change. Margaret Bartley, a senior staff attorney at the National Veterans Legal Services Program and Director of Outreach and Education for the Veterans Consortium Pro Bono Program was nominated last year to fill one of two judge vacancies that have existed for some time. On March 28, 2012 the Senate Veterans Affairs Committee will conduct a hearing on the appointment.
Ms. Bartley has represented veterans, their dependents, and survivors before the US Court of Appeals for Veterans Claims and the Board of Veterans Appeals since 1995. She served as a judicial law clerk for Judge Jonathan Steinberg, a former member of the Court, after law school.
This nominee for the Court is important to veterans because she will be the first person, if approved by the Senate committee, who has experience prosecuting veterans’ claims at the VA and the Court. Ms. Bartley will bring a perspective to the Court that has heretofore been overlooked.
In this era of hardball politics and the ongoing opposition to just about anything the current president proposes it will not be surprising if some senators try to block the nomination. Should this happen, in my humble opinion it will be a betrayal of veterans. The current existing vacancies have remained unfilled far too long and the absence of a judge or judges from the veterans bar leaves the perception of imbalance.
It is important for veterans to become proactive in this nomination. I urge all veterans to write to those committee members who are from your state and tell your senator how important it is, after 23 years without a member from the veterans’ bar, to finally have a member of the veterans bar serve on the Court. Even if you do not have a senator from your state serving on the committee, I urge you to write to the Chairman of the Committee, Senator Patty Murray. This is not a partisan issue, this is a veteran issue.
Here are the members of the committee:
Patty Murray, WA
John D. Rockefeller IV, WV
Daniel K Akaka, HI
Sherrod Brown, OH
Jim Webb, VA
John Tester MT
Mark Begich, AK
Bernard Sanders, VT
Richard Burr, NC
Johnny Isakson, GA
Roger Wicker, MS
Mike Johanns, NE
Scott Brown, MA
Jerry Moran, KS
John Boozman, AR
CORRECTION: Veterans’ Court Needs Judge With VA Claims Experience
By Leo Dougherty
In the article I recently wrote about Margaret Bartley’s nomination to the Court of Veterans Appeals I incorrectly stated she would be the first attorney from the veterans’ advocacy side appointed to the Court. I overlooked the fact that Judge Lawrence B. Hagel was appointed to the Court in December 2003 by President George W. Bush. Judge Hagel previously served as General Counsel of the Paralyzed Veterans of America. He went to work for PVA in January 1990 as Deputy General Counsel. He has represented veterans at the BVA, the CAVC, and the Court of Appeals for the Federal Circuit.
This error was made by the author of the original article – me – and should not reflect upon the websites posting the article. I apologize to all for this error and especially to Judge Hagel and the other members of the Court.
Who Was Amy Sinkler?
I don’t know Amy Sinkler. I doubt you know her either. She was just one of the more than 308 million people who make up the population of the United States. Until recently her name meant nothing to me. If I had passed her on the street I wouldn’t even know who she was. I know her name now but I don’t know a whole lot more about her and there is this nagging feeling inside that I really should know more about her.
And there is this feeling of anger way deep down that keeps reminding me the majority of the more than 308 million people who make up the population of the United States should also know a lot about Amy Sinkler, and a lot more young people just like her. Amy Sinkler was one of those young people who do a job not very many people want to do any more. The little information I could find on her is that she was born August 11, 1987 in Whiteville, NC. I was also able to find out that she graduated from West Columbus High School in 2006. She was also a soldier in the US Army, 17th Combat Sustainment Support Battalion, 3rd Maneuver Enhancement Brigade, Fort Richardson, Alaska. On January 20, 2011 in Baghlan, Afghanistan, Pfc. Amy R. Sinkler lost her life when insurgents attacked her unit with a rocket propelled grenade. She was just 23 years old.
One other thing I now know about her is that her residence is now forevermore the Butler Branch Cemetery in Fair Bluff, North Carolina. If you do a Google search on her name, this will be about all you will be able to find on her, at least as of this writing. I want to caution you, though. You will see her picture and you may find it captivating. Her eyes seem to be looking at you and through you, as though she sees into your soul. Once you realize it is just a picture and study the eyes you may see, as I did, that those eyes seem to portray a confident, perhaps contented young woman who is not only aware of the decision she has made to serve her country but is at peace with whatever may happen and however her decision may turn out. It’s as though she knows. Her half-smile also seems to portray a confident woman. It is not the usual stone-faced photo typical of a young soldier, sailor, airman, marine or Coast Guardsman. There just seems to be this peace and confidence in her face – as though she knows what her destiny is and she is prepared to face it. And there is pride.
Her death is of course, like those of so many other young people who served our country, a tragedy. Who knows what she and others like her could have done for our world, our country, or whatever community they might have chosen to settle in to? The real tragedy of course, beyond the loss her family feels, is not so much that you and I do not know very much about her but that so many outside our world – the world of those who have served – not only will never know anything about her, they won’t care. I wish I knew more about Pfc. Amy R. Sinkler, and a whole lot of other young people just like her. They are after all comrades in arms.
More importantly though, I wish the majority of those more than 308 million people knew more about her as they go about their day to day lives, oblivious to what Amy Sinkler’s family has to endure, oblivious to her sacrifice and her family’s sacrifice on behalf of this grateful nation.
Amy Sinkler, Part II
Some time ago I wrote an article about Amy Sinkler, an Army PFC killed on January 20, 2011 in Afghanistan. The article was entitled, “Who Was Amy Sinkler?” I cannot explain why I felt the need to bring her to the attention of those who read what I write. Maybe I felt compelled to make the point that a great majority of America will never know about her contribution and sacrifice, her family’s contribution and sacrifice, and the loss her family and her community endures. I felt that someone outside her family and her community has to care because so many have no concept of what young men and women who choose to wear the uniform experience. They certainly do not understand the sacrifice, the pain, and the loss their families and communities feel when the ultimate sacrifice is made.
I did not know a lot about PFC Sinkler when I wrote the article and felt like I needed to know more. Someone with the moniker of EJJ who served with PFC Sinkler posted a little more information about her which was, at least to me, a little more helpful in knowing her.
During the week between Christmas and New Year’s I traveled from Tampa, FL to Camp LeJeune, NC to welcome my nephew home from his second deployment to Afghanistan. It will be his last because he does not have enough time left in the Marine Corps to be deployed a third time.
Before the trip and after reading EJJ’s post I somehow felt compelled to find out where Fair Bluff, NC was located. I found it was not that far off Interstate 95 on my route to LeJeune. From that moment I felt compelled to make that slight detour to visit her grave. The trip from I-95 to Fair Bluff was a reminder of my childhood. State Road 130 to State Road 904 was lined by farms. It’s easy to imagine that most people in this area make their living off the land. It gives one the appearance of close families who work hard. Many of the houses had American flags flying in the front yards. I saw many churches on my way in to Fair Bluff, evidence that faith is an important part of life for those who live around Fair Bluff. This is the way it is in the rural Fingerlakes area of Western New York State - the same place where I grew up, where my nephew grew up, and where his mom and dad still live.
Main Street Fair Bluff is small town Americana. It is just like so many other small towns in America.
PFC Sinkler rests in a cemetery next to Butler Branch Church. The church and cemetery is on a little dirt street just off Main Street. I had hoped to drive in to town unnoticed, quickly and quietly find her grave, pay my respects, and complete my trip. When I arrived, I found a group of young men playing basketball on a slab of concrete just across the street from the church. Two young ladies were standing by a vehicle while the young men played. My hopes to be unnoticed were not to be.
I wasn’t sure what to do so I decided to asked the two young ladies if PFC Sinkler was buried in the cemetery. They said she was so I asked them if they could point me towards her grave. Her grave was so close that they offered to walk me over to the site. Like so many graves of those who gave the ultimate sacrifice, it was a simple grave. I saw the words, “If tears were a stairway,” but didn’t remember the rest. I did find these words from a funeral poem after returning home: ‘If tears could build a stairway and thoughts a memory lane I'd walk right up to heaven.”
There are more words to the poem but these words on her grave I will always remember.
I wanted to ask these two young ladies a lot of questions. I wanted to know what life had been like for PFC Sinkler. I wanted to know about her family and about her town. I wanted to know about her military service. However, I thought this would be too intrusive so the only thing I could think of to ask was, “Did either of you know Amy?”
One of the young ladies said, “She was my cousin.” This shook me a little but it also evidenced how small towns in America often are home to families consisting of more than a mom and a dad and a child. After a few minutes the two young ladies decided to walk back to where the young men were playing basketball. I said a silent prayer for PFC Sinkler, and for her family and her community. I walked to my car, got in and drove away.
Throughout the rest of the trip to LeJeune I mulled over why I did what I did. Perhaps it is because my nephew, his dad, and I grew up in a small town. Perhaps it is because two of my high school friends, John Lilla and Bruce Manning, were killed in Vietnam and I somehow survived a little more than four years in the service, never receiving orders to Vietnam.
In the end I decided that PFC Sinkler, her family, and this small town with their sacrifice to our country deserved to have a total stranger stop by and pay respects. It’s a small gesture but the small towns of America who have given up their precious young deserve to have a total stranger or two stop by and pay respects. They deserve to know that someone outside their community cares about their contribution, their sacrifice, and their loss. It does nothing however to cure my frustration that so much of America lives on in ignorant bliss, knowing nothing of the price families like PFC Sinkler’s family have paid, or of the price small towns across America like Fair Bluff have paid.
On August 20, 1940, British Prime Minister Winston Churchill, in his speech after the Battle of Britain Bunker best said what needs so much to be said, “Never in the field of human conflict was so much owed by so many to so few.”
Things May Have Changed More Than You Realize
For decades, veterans had two choices for representation when filing claims for VA benefits. They could file the claim on their own, called pro se representation, or they could engage a veteran’s service officer from one of the various VA recognized veterans service organizations. This changed in June 2007 when Congress passed legislation and the President signed into law the right of veterans to hire representation before the VA regional offices and board of veterans appeals.
Prior to veterans’ choice legislation in 2007 it was not unusual for veterans to share information with each other in their attempts to obtain benefits. It was not unusual for an experienced veteran to extend assistance to other veterans when filing claims. This assistance was offered in good faith, was often successful in assisting veterans obtaining benefits, and often resulted in a particular veteran or family member reaching out to other veterans and their family members offering those other veterans and family members assistance. This assistance most often came in the form of advising how to complete forms, where to send forms, how to word forms, and even advising veterans what regulations and law to rely upon in claims and appeals. Again, this was all done in good faith and in the absence of law or regulations that would prohibit such assistance.
Since veterans’ choice legislation was passed however, there have been some important changes in the arena of assisting veterans in claims and appeals. For those who do assist veterans with completing forms, advising them where to file those forms or how to word responses to adverse decisions, a word of caution is offered. You should make yourself familiar with the provisions of 38 CFR 14 before proceeding to assure you are not violating regulations and exposing yourself to liability.
At the very minimum you should familiarize yourself with 38 CFR 14.630 and 38 CFR 14.632.
From the regulations: 14.630 Authorization for a particular claim.
(a) Any person may be authorized to prepare, present, and prosecute one claim. A power of attorney executed on VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative," and a statement signed by the person and the claimant that no compensation will be charged or paid for the services, shall be filed with the agency of original jurisdiction where the claim is presented. The power of attorney identifies to VA the claimant's appointment of representation and authorizes VA's disclosure of information to the person representing the claimant.
(b) Representation may be provided by an individual pursuant to this section one time only. An exception to this limitation may be granted by the General Counsel in unusual circumstances. Among the factors which may be considered in determining whether an exception will be granted are:
(1) The number of accredited representatives, agents, and attorneys operating in the claimant's geographic region;
(2) Whether the claimant has unsuccessfully sought representation from other sources;
(3) The nature and status of the claim; and
(4) Whether there exists unique circumstances which would render alternative representation inadequate.
(c) Persons providing representation under this section must comply with the laws administered by VA and with the regulations governing practice before VA including the rules of conduct in 14.632 of this part.
(d) Persons providing representation under this section are subject to suspension and or exclusion from representation of claimants before VA on the same grounds as apply to representatives, agents, and attorneys in 14.633 of this part.
If you decide to proceed with assisting a veteran and could reasonably fall under the provisions of 38 CFR 14.630 you should understand your obligations under 38 CFR 14.632. From the regulations: 14.632 Standards of conduct for persons providing representation before the Department
(a) (1) All persons acting on behalf of a claimant shall faithfully execute their duties as individuals providing representation on a particular claim under 14.630, representatives, agents, or attorneys. (2) All individuals providing representation are required to be truthful in their dealings with claimants and VA.
(b) An individual providing representation on a particular claim under 14.630, representative, agent, or attorney shall:
(1) Provide claimants with competent representation before VA. Competent representation requires the knowledge, skill, thoroughness, and preparation necessary for the representation. This includes understanding the issues of fact and law relevant to the claim as well as the applicable provisions of title 38, United States Code, and title 38, Code of Federal Regulations;
(2) Act with reasonable diligence and promptness in representing claimants. This includes responding promptly to VA requests for information or assisting a claimant in responding promptly to VA requests for information.
(c) An individual providing representation on a particular claim under 14.630, representative, agent, or attorney shall not:
(1) Violate the standards of conduct as described in this section;
(2) Circumvent a rule of conduct through the actions of another;
(3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;
(4) Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations;
(5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation;
(6) Solicit, receive, or enter into agreements for gifts related to representation provided before an agency of original jurisdiction has issued a decision on a claim or claims and a Notice of Disagreement has been filed with respect to that decision;
(7) Delay, without good cause, the processing of a claim at any stage of the administrative process;
(8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA;
(9) Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA;
(10) Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or
(11) Engage in any other unlawful or unethical conduct.
(d) In addition to complying with standards of conduct for practice before VA in paragraphs (a) through (c) of this section, an attorney shall not, in providing representation to a claimant before VA, engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law.
There are minefields within these regulations that you should be aware of regardless of whether you believe you are representing a veteran because the decision about whether you are representing a veteran will ultimately be made by the VA should a problem arise. For instance, you could be held responsible if a veteran you are helping circumvents a rule of conduct even if unintentional.
If you are successful in assisting a veteran in obtaining a benefit and that veteran is so grateful that he gives you a gift certificate for dinner at a very nice restaurant, acceptance of that gift certificate can be construed as an ethical violation. On the other hand, if a veteran feels you provided incorrect advice that resulted in a denial of benefits he was entitled to, you may find yourself being sued.
Just something to think about.
Where has the VA gone?
Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.
These few words are found in 38 CFR §3.103(a).
This is the statement of policy of the Department of Veterans Affairs. At some point in time, someone within the VA responsible for writing regulations found it necessary to spell this policy out in VA regulations. The words which ring loudest with me are, “it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.”
Have these words, written as part of an overall policy, been forgotten? Does anyone within the VA know these words still exist as part of their statement of policy? Given recent court decisions, one has to wonder if the statement of policy is understood within the VA. In Harvey v. Shinseki, No. 10-1284 decided January 25, 2011 the Court of Appeals for Veterans Claims (CAVC) issued a civil contempt order against the VA.
In the order, the CAVC said, “Here, the Secretary's lack of proper diligence and respect for the Court's June 2008 remand order is the direct cause of more than a year's delay in the processing of the petitioner's remanded claim. Furthermore, it is directly responsible for the enormous amount of time and resources consumed by counsel, the amicus curiae, and the Court to address a matter that was technically resolved more than ten years ago.”
In Henderson v. Shinseki, decided on March 1, 2011 by the United States Supreme Court, the VA defended against a legal concept called equitable tolling. Equitable tolling is defined as, “a doctrine or principle of tort law: a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after the expiration of the limitations period.”
(See http://dictionary.reference.com/browse/equitable+tolling)
Given the nature of VA clients, that is, those who are severely physically disabled or are disabled due to mental conditions, one would think that a self-described paternalistic and veteran-friendly agency would understand that at times equitable tolling is not just appropriate, it’s just and fair. Nevertheless, the VA took a strong stance against this concept in the issue of a veteran suffering a mental disability filing a notice of appeal 15 days past the filing deadline.
The Supreme Court decision reminded the VA that its legal procedure is different than the normal civil procedure and said, “We have long applied “the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” . . . Particularly in light this canon, we do not find any clear indication that the 120-day limit was intended to carry the harsh consequences that accompany the jurisdiction tag.”
Now comes Freeman, posted here on VAWatchdog.org
The pleadings leading up to the decision are posted as well as the decision and it is a telling indictment of the agency. What has happened to this agency that proudly holds itself out to Congress, to veterans, and to the public as a paternalistic and veteran-friendly agency? In good conscience, can anyone within the VA again say anytime soon that the VA is a paternalistic and veteran-friendly agency without garnering snickers or outright laughter from those within earshot?
Soon to follow will be a review of a case called Brady. A joint motion for remand was agreed upon by the Office of General Counsel and the appellant. The remand called for readjudication based on agreement of the parties in the case. The Board of Veterans Appeals refused to make the adjudication saying the Court’s order and the remand are erroneous, stating they (the BVA) are “free to act contrary to the court’s instructions in the February 2009 Order and Motion.” Is there anyone reading this who believes this is anything other than contempt of the CAVC? Can any rational person explain to me or to the appellant in this case how this position is anything other than adversarial and ignorant of the VA’s stated policy? This is a mentality of if we can’t win we just won’t do what the Court tells us to do. This is not what veterans want their VA to be.
We understand the fact that the VA must not give away the store. We understand the VA has a great workload and must struggle each and every day to complete its mission. What we don’t understand and never will understand is how the VA routinely ignores its policy to render a decision which grants every benefit that can be supported in law as it struggles to carry out that mission. In 2006, the Federal Circuit Court of Appeals said in Barrett v. Nicholson, “"The government's interest in veterans' cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Here we are five years later and the VA’s interest is clearly about winning.
I therefore propose the following prayer for all veterans to say when they attend church or whenever they pray.
It goes like this: Please dear Lord, help those veterans who have been injured or who have become ill while serving our country, whether in war or peacetime. Please look over their families so they do not lose their homes, their soul, their trust in fellow man, and their way in life. Please help those veterans and their families to overcome the adversity they must face as they struggle to live from day to day, and find it in your heart to grant them every benefit they are entitled to under the law. And please Lord; look over those individuals who work in the Department of Veterans Affairs. Show them the way to do what’s right. Give them the strength to ward off temptation to act in any way that is unjust or unfair. Give them the compassion to understand that so many of their clients suffer in ways they may never understand. Give them strength to do what is best for all men and women who have given a part of their lives to assure we have the freedoms we enjoy. And Lord, teach us all that we are one human race, that we are all in this together. Teach us that we have a common bond and a common responsibility to each other.
Military Sexual Assault
MST, short for military sexual trauma, is in the forefront for veterans.
VAWatchdog dot Org posted on February 15, 2011 an AP News Break story entitled “Veterans Say Rape Cases Mishandled.” That same evening, news programs reported that a number of individuals who reported rape are suing the Pentagon for failing to be proactive in reported cases of MST. MST is an extremely personal trauma experienced not just by women but by men too. The trauma is so powerful and personal that many are unable to report it or are afraid of being ostracized and harassed if they do. According to the reports of some victims of MST, this fear is well founded.
For a very long time it has been near impossible to achieve disability compensation due to MST because claims lacked clear cut evidence of the event or what evidence there was disappeared over the intervening years between the assault and the confrontation of the experience by the victim. MST victims need to be aware of recent changes in regulations dealing with personal assault trauma claims. 38 CFR 3.304(f)(5)(2009 states: If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.
Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. There are important operative words in this regulation.
First, there is the provision that evidence other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. This means the lack of an official record of the incident does not necessarily equate to an automatic denial. The regulation provides examples of acceptable evidence, with the operative words being not limited to just those examples listed. Just because you do not have only those examples of evidence does not equate to an automatic denial. The regulation specifically states that the VA will not deny a PTSD claim based on in-service personal assault without first advising the claimant that evidence from sources other than he veteran’s service records or evidence of behavior changes may constitute credible supporting evidence. Failure to advise you that alternative types of evidence can be used is an appealable issue. So, let’s say a female soldier is a victim of sexual assault. It is immaterial whether such assault is by another military person or a civilian, it has occurred while on active duty. It is not reported for many reasons, including the ones mentioned above. After service and, let’s say, 25 years of suffering the effects of PTSD this veteran decides it is time to face this experience, report it, and apply for benefits.
However, there is no official record of the event. This veteran should go back in time and determine if a sibling, parent, best friend or trusted military friend was told about the event. If so, statements from them can be favorable evidence for the claim. The veteran should get a copy of the military personnel record and review it for several things. Was there a change for the worse in evaluations following the event? Was there a reduction or reductions in rank following the event? Evaluations and reductions in rank are especially important if there is a track record of good evaluations and a decent promotion track prior to the event. Following the event, was a transfer requested or was a transfer made even though none had been routinely scheduled? Was there a pregnancy test following the event? Was there treatment of a sexually transmitted disease without report of the trauma? This alternative evidence, even though it may not be official or relate directly to the trauma, is indicative of something having changed at about the time of the alleged MST. The idea is to use this alternative evidence to build a preponderance of the evidence that will support your claim. A preponderance of evidence does not mean quantity of evidence; it means quality of the evidence.
Consequently, a statement by someone saying the veteran’s best friend told them that the veteran told them about the event a few months ago lacks probative value when compared to a statement by the veteran’s best friend saying the veteran told them about the event in 1995 and that they talked frequently about the MST experience. This is a more liberal approach to proving you are a victim of MST and therefore entitled to disability compensation.
The C & P Exam – Is it correct?
Whether you are applying for service connected disability or an increase in a current service connected disability, a compensation and pension (C&P) examination will be scheduled. This exam will be conducted by medical personnel who have no direct responsibility for determining whether you will be awarded service connected disability or an increase in a current service connected disability.
The results of your C & P exam are sent to a regional office (RO) where the decision will be made on your claim. The exam is an important document. It is evidence that the RO will carefully review in determining whether to approve or deny your claim. It is therefore a document you should obtain as soon as possible and review for errors before the regional office makes a decision on your claim. Common errors include incorrect transcriptions of your description of symptoms.
For instance, you may tell the examiner that you experience “really bad pain” in a joint and the examiner may say in the exam that you reported “pain that is moderate.” This type of error is not intentional but from the exam to the written report pain can be mischaracterized. Other errors can make you think the examiner mixed your examination up with someone else. For instance, you may tell the doctor that you experience intrusive dreams several nights a week relating to a trauma you experienced while on active duty. The exam report might state that you reported no dreams or that dreams are infrequent. This symptom can be very important to a claim involving PTSD so it’s important to get it correctly reported. The time to obtain and review your exam is right after the exam is conducted.
Some veterans report they are able to obtain copies from the VA medical facility where it was conducted. You can go to the records custodian office as soon as the exam is completed and ask if you can sign a release form for the exam. However exams are often endorsed with a statement not to provide the exam to the veteran but to forward it to the regional office. If the medical facility won’t provide a copy to you, send a release of information form to the regional office asking specifically for a copy of the C & P exam. Review the exam report very carefully when you receive it. Make sure the symptoms you described to the examiner are correctly noted in the exam. If not, make a note of this. If important symptoms you reported to the examiner are not in the report, make a note of this too. Once your review is complete, write a letter to the regional office carefully describing the errors you found in the exam.
Do not wait until you receive your decision, do it as soon as you have received the exam and completed your review. Once the decision is made, contesting the accuracy of the exam becomes more difficult. Leave the emotions out of letter. Saying, “This exam was terrible,” or, “The doctor didn’t like me,” is distracting from facts you might assert were incorrect such as, “I told the doctor that I experienced nightmares almost every night but the examination report does not have this information in it.” If the errors are many or significant enough you can assert in your letter that the exam was inadequate or incomplete and request a new exam. 38 CFR 4.2 states in part, “If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” This is the authority for the VA to obtain corrected information in your examination. If the regional office does not attempt to clarify the exam report or, in egregiously incorrect exams, schedule a new exam you can contend in your notice of disagreement and request for DRO review that the C & P exam was inadequate, incomplete, or both.
The argument is that the rating decision is therefore inadequate, incomplete, or both and is not sufficient for a fair and just decision. The further argument is that the DRO should find in your favor based on the favorable evidence in your file that was not addressed by the examiner or the person who made the rating decision. The time to request a copy of your C & P exam is in the few days right after it is conducted. The time to advise the VA there are errors in the exam is as soon as you complete your review of the exam. The sooner you advise the regional office of the errors the more effective your contention will be that the exam is incomplete or inadequate, and the sooner you might receive a favorable decision on your claim.
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Interactive Form and Letter Generators
Lay Evidence Can be an Important Part of a Veteran’s Claim
For many years, veterans and their advocates held the generally accepted opinion that the submissions of family or “buddy” statements were worthless as evidence in veterans’ claims for disability. However this stance, long employed by the VA, is in contradiction to the law. Over the past several years, case law has supported that such statements must be considered by the VA in making decisions on claims. This does not mean that such statements are a panacea for veterans nor should such statements be considered as a replacement for factual evidence.
The authority for lay evidence comes from 38 US Code 1154(a), which states in part, “The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence . . .” The Code addresses the issue of lay evidence again in 38 US Code 5107(b), which sates in part, “The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.”
Lay evidence is also addressed in the Code of Federal Regulations. 38 C.F.R. § 3.307(b) states in part, ". . .the factual basis for establishing a chronic disease may be established by medical evidence, competent lay evidence or both.... Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period, not merely conclusions based upon opinion." 38 C.F.R. § 3.303(a) provides that each disabling condition for which a veteran seeks service connection, "must be considered on the basis of ... all pertinent medical and lay evidence." It is clear that the statutes and regulations require at least the consideration of lay evidence if that lay evidence is pertinent to the claim. However, 38 US Code 5107(a) states, “Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.” This means the burden of proof rests on the shoulders of the veteran and this includes assuring that lay evidence meets the requirements assuring such statements deserve probative weight.
Two important court opinions have clearly made it necessary for the VA to consider lay evidence but only after such evidence has met the requirements to assign probative weight. Both opinions come from the Federal Circuit Court of Appeals. The first is Buchanan v. Nicholson decided in June 2006. Buchanan stated that lay evidence can, in and of itself in some instances, be sufficient to establish service connection. The opinion established that the VA has the right and the responsibility to establish first that lay evidence is credible and, if credible, whether the lay evidence is competent. If lay evidence passes both these tests then probative weight should be assigned. How much weight to assign is the province of the VA but that determination can be part of a notice of disagreement and appeal. On July 3, 2007 the Federal Circuit Court of Appeals again addressed the issue of lay evidence in Jandreau v. Nicholson, affirming the case law established in Buchanan. The Jandreau case concerned lay evidence that the VA determined was insufficient “when the determinative issue involves either medical etiology or a medical diagnosis.
The Federal Circuit said, “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Contrary to the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well.” A footnote stated, “Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.” This is important case law for veterans and it can mean the difference between a favorable award of benefits and a denial. If there is medical evidence, the veteran should do everything he or she can do to develop that evidence and provide it to the VA. If there is something missing that a military buddy or family member can fill in, such a statement can tip the scale in the veteran’s favor. It must be remembered that the VA has the right and the responsibility to determine if a statement is credible and, if credible, is competent.
If it is not credible the VA will reject it but if it is credible the VA will have to decide if it’s competent. If it’s determined competent but the VA assigns little or no probative weight to the statement, the reasons and bases for the determination should be carefully reviewed to determine if the lay evidence should become part of an appeal.
