THE VA CLAIMS PROCESS

With the understanding that the Medical Board process and the VA claims process are two similar but different systems, how does the VA process work and how can you make your claims go through efficiently? Making VA claims go through more efficiently starts with undertaking certain steps even before you walk into your service officer’s office.

The very first thing you will want to do is collect copies of your military records which are often referred to as your C-File. These are free of charge. If you served strictly in the Guard/Reserves and never did any call ups your records may end up being at the Adjutant General’s Office for the state you served in, so you would want to contact them directly. Older veterans (especially those who served in Vietnam & Korea) often encounter a particular challenge. On July 12, 1973 there was a major 3-alarm fire at the National Personnel Records Center (NPRC) in St. Louis which destroyed 16-18 million records. Many times, the NPRC will automatically inform veterans that the fire affected their records, even those that were obviously not affected. I say this because I know of cases where the veteran’s service ended AFTER July 12, 1973 yet the veterans were informed their records were destroyed in the fire. The records that were truly destroyed were only as follows:

For Army members who were discharged between November 12, 1912 and January 1, 1960; 80% of these records were destroyed.

For Air Force members discharged between September 25, 1947 and January 1, 1964 with names that started alphabetically after the name Hubbard, James E; 75% of these records were destroyed.

Once you have sent off your SF-180 to have both your military medical and personnel records sent to you, you would have to collect any medical treatment records you have generated by going to the VA for treatment. If you have lived in multiple places over the years, and been seen at multiple VA Medical Centers, you should send out a VA Form 10-5345 to each of the VA Medical facilities you have been seen at because oftentimes those records end up staying there. Without making sure you have ALL your VA medical records; this can cause massive delays and the VA cannot make the correct decision without all of your medical evidence!!! A few years ago, I spoke with a woman whose husband was a Vietnam veteran. Over the years he had been seen at numerous VA facilities yet every time he tried to file a claim for his disabilities, they would immediately deny them because they had very little treatment records for him. His spouse had sent VA Form 10-5345 to each VA medical facility he had been seen at which was close to 20 facilities across the U.S. Within a month or so, she received numerous packages having records from various VA facilities which now showed extensive treatment for each of his injuries/illnesses over the course of the last 40 years! Thus, it is vital to collect both your military and VA medical records before you file your VA disability compensation claims.

Many veterans also have private doctors they consult with. You could talk to your private hospital/doctor about collecting your records. This often will be done in a very short amount of time, however banking on the VA usually leads to loss of valuable time as it will often take the VA several months if at all they even can get them! Certain laws have been promulgated to guide the activities of the VA; one of these is the VA’s ‘Duty to Assist’ laws. Under USC Title 38 in CFR 21.33 in Section 2, it is stated that: ‘The VA will NOT pay any fees a custodian of records may charge to provide the records VA requests’ This means that the VA cannot pay for medical records that both private doctors’ offices and outside hospitals typically charge for. Hence under this rule, the VA effectively ties their hands behind their back. When they tell you ‘Don’t worry about it, we will collect them for you’, they can’t. Let’s look at the “VA’s Duty to Assist Law” as a great idea with bad intentions. I say this because it can be extremely helpful at times to veterans that have only been seen by VA facilities and in service, but the second you are seen at an outside facility, it becomes impossible for the VA to get those records and this adds several months or longer to the amount of time it takes to settle your claims. Oftentimes it takes the veteran several months to figure this out. I advise you collect your records before you even file as a little bit of time and energy on your part can save a whole lot of waiting.

Remember in the military during wars, guns, tanks, airplanes and ships are used. You would as well need to get ready for battle because this is paperwork war – and in it you will use pens, paperclips, highlighter pens and post it notes. I often suggest getting the supplies that you will need. A proper inventory list is as follows: Paper, printer ink, post it notes, multiple color highlighter markers, binders with color tabs, a Medical Dictionary, a backpack or briefcase preferably rolling and 2 flash drives. Setting up your paperwork correctly is vital. All too often, the veteran just walks into their service officer or county benefits coordinator’s office and they say “I am here to file a claim”. They then go ahead to dump it into the laps of their service officer and then years later they question why it’s taking so long? By managing the variables, claims can be settled both faster and with less errors, hence the need to set paperwork up correctly. When setting up your paperwork especially if you have multiple medical issues it really helps to make a key code first, using different colored highlighter markers to point out each injury/illness. For example, high Blood Pressure in pink, back injury in yellow, and PTSD in orange. When you go through your records, you should point out the important things pertaining to each injury in that color. Doing this can make going through a thousand pages of medical files into a much easier process for the VA rater seeing as they may only need to find 10-15 pages of documentation with only a few colored lines on each page. As an example, you could point out your blood pressure readings within your records in pink and then type up a spreadsheet which shows how your blood pressure has steadily increased from 90/75 to 120/85 to 150/100 to ultimately 195/120 over the course of time. Once you have highlighted your records to point out your injuries and their severity, I have found it to be extremely helpful to then use post it notes to place over the points that you are trying to make. A simple note that states “Please look underneath to see my blood pressure reading is elevated” or “Notice the increased blood pressure reading” can go a long way in easing up the process for the VA rater. If you use the post it notes, you should then fold the tabs around the edge of the sheet of paper so that they can see the edges of the post it notes for quick reference. With doing this, you help the VA quickly realize which pages to thumb through. While the rater has the option to read each page of your file, they will quickly see that you are pointing out your case.

Organization is key to getting it right the very first time when it comes to arranging your medical records. Obviously, you will want to arrange it by C-File then VA records, and then private medical records, then have it color-coded by injury. I would suggest having a medical dictionary handy if you are not in the medical field. These are things that can be major assets when helping to organize or understand your evidence. Furthermore, if there are clerical errors within your claims you will want to work at fixing these things as well. One of such errors is being given an improper discharge characterization which you did not realize when you got out, in which case we would need to file for a Discharge Review Board (DRB).

Once your paperwork is arranged properly using the color-coded system, with a typewritten page explaining your arguments, it should tell a convincing story of how your injuries started in service, or at least how you were exposed to the cause of your current illnesses in service. Sometimes especially with presumptive illnesses you merely have to show you were stationed in say Vietnam or Iraq which is where you were exposed to chemicals or environments which are now causing your current presumptive illnesses. When it comes to specific injuries, you will want to point out incident reports, treatment records, and witness statements as well if you have them.

Years ago a friend of mine made a statement I always remember. He said: “If 2 people are standing in front of a car and one says its blue and the other says its green, well, maybe it’s blue or maybe its green. As where if 10 people are standing in front of a car and they all say that it’s blue, buddy the car is blue!”  This is where lay evidence comes into play, because there are several forms of lay evidence that can help the VA to better understand your injuries from the perspective of firsthand accounts. The first thing to do is to sit down and write out what happened to them if possible. You should do this because often times they end up telling their story over and over again which in many cases can continually re-trigger the emotions. By having a copy of it, they can just have the doctors refer back to the lay statement. Additionally, this can be your opportunity to speak directly to the VA rater, as it can be submitted into your claims. They should be 3-5 pages long and very direct while ensuring to be very descriptive. Another form of lay evidence are the witness statements which are often referred to as buddy letters from others you served alongside who have direct knowledge of your injuries and how they happened. Now think about this in civilian terms of a scene of a car wreck. When a bystander witnesses the wreck happening the police often have them write up a witness statement so they can recount how things happened. A good witness statement has direct knowledge whether it be they saw you using Agent Orange or they saw you fall down a flight of stairs. Other things that can be helpful were if they took you to medical that day, if they were the MP that took the report that night, or at minimum if they remember everything surrounding your injuries. Remember they have to have direct knowledge and they will need to notarize the statement so the VA will know they wrote it. If you are going to go through the process of having a witness statement written and notarized, it really makes sense to use people who were either there when you were injured or exposed to chemicals and you can prove were actually there, or have direct knowledge of your injuries such as a family member that sees your struggles on a daily basis and can contribute factual information.

There are two main reasons as to why you should get actively involved in filing your claims,

  1. Nobody knows your injuries better than you.
  2. It reduces the burden on your VSO/County Benefits Coordinator.

Now at first glance I am sure you are thinking “Number 2 is not my problem” However, look at it this way – If the most time you will have with them when you file is 30 minutes to an hour, it really is in your best interest to have everything in order when you walk in the door. If you want to spend 59 of those minutes explaining everything to them that you are right, then you can rightly say it is not your concern. If you have everything nice, neat, and in order you can explain your case in roughly 5 minutes with all of your evidence at their fingertips, which leaves 55 minutes for them to perfect your paperwork.

BURDEN OF PROOF

When it comes to dealing with the VA for service-connected injuries, there is the burden of proof, which is the responsibility to prove it indeed happened in the military or is as a result of your military service. There are two important terms when it comes to veterans’ claims’:

  1. “AS LIKELY AS NOT, IT WAS CAUSED BY YOUR MILITARY SERVICE”
  2. “WAS AS LEAST AS LIKELY AS NOT, APPROXIMATELY DUE TO OR THE RESULT OF THE VERIFIED PERSONAL TRAUMA”.

Now, please allow me to dissect these statements in layman’s terms. Many times when dealing with VA doctors or C&P examiners they will often state to the veteran “There is no way that I can be absolutely sure that this injury/illness was caused by your military service”. ABSOLUTELY SURE are the keywords here. With VA doctors keep in mind you are not asking they be 100% sure, after all they weren’t there with you when the incident took place, so how could they possibly be 100% sure? What you are after is for the VA to agree that AS LIKELY AS NOT, the injury or condition was caused by your military service. As likely as not is a 50.01% to 49.99% statement, not a 100% statement. Even the terms “AS LEAST AS LIKELY AS NOT, APPROXIMATELY DUE TO …” would suffice. The words approximately indicate nearness or similarity to something. That’s a far cry from 100% absolute sureness they would have you believe is needed.

To further support this, I would use a case most people are familiar with – OJ Simpson. Back in 1995, OJ Simpson was acquitted of 2 counts of murder, yet in 1997 he was found guilty in a civil court and ordered to pay $33.5 Million to the Brown and Goldman families. Which brings up a reasonable question: WHY? The basic reasoning is there are different burdens of proof in criminal versus civil courts. In the criminal court, the burden of proof is “beyond a reasonable doubt” key word being REASONABLE, which means if a jury of reasonable people comes to a consensus you in fact did this, then yes you will be found guilty of the crime. Now in civil court cases the burden is different in that “More likely than not”. That statement would imply that 50.01% out of a 100% would be “more likely than not” because the pendulum has tilted ever so lightly to the yes side. Starting to make sense?

Perhaps you wonder – What is the importance of knowing exactly where the burden of proof is at, and how would this help specifically? Knowing exactly where the line in the sand is at is always helpful because then it’s much easier to see if you’re being veered off course! Oftentimes when I speak with disabled veterans that are embattled with the VA, they often feel like it’s a David vs. Goliath scenario. After all they are fighting this $140.3 BILLION dollar a year entity and they are just the average citizen going up against what feels like a giant machine. But then, every time I have ever read the story of David vs. Goliath, David wins! So, I find it ironic so many veterans can always relate to the fact the little guy has to go up against the giant, but remember although the VA may seem impenetrable at times, they are beatable. For this reason, it is extremely important to know exactly how to fight, what the rules are to win and to not get distracted or deterred when they attempt to make you feel you can’t win because the burden of proof is too high with your claims. Remember it only takes 50.01% to be “AS LEAST AS LIKELY AS NOT!”

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Hosts Mike and Tricia Marino are a retired military family with three children. They retired from the Navy with just over 20 years of service in 2011 and returned from Japan serving as civilians on a Navy base.
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