Thursday, May 21st, 2015
A claim by a veteran or family member of a veteran is like a legal claim in the courts, to the extent that winning requires amassing a certain amount of evidence to prove entitlement to benefits. But in understanding the VA claims system and some of its frustrations, it is useful to bear in mind how a veteran claim is unlike litigation in court.
To win their claims, veterans must present evidence which establishes entitlement to benefits according to the requirements. So, for a 20% rating of a shoulder impairment it must be shown via medical evidence that range of motion in the arm is limited to shoulder level. To obtain service connection for a pre-existing medical condition there must be proof that the condition was made worse during service. The need for proof, i.e. the importance of having actual evidence – documents, witness statements, expert reports – is like ordinary litigation. But the measure of proof necessary to establish a fact as proven is lower in veterans’ claims: while civil litigants most prove facts by a preponderance (more than 50%) of the evidence, veteran claimants need only show a 50-50 probability.
There is a subtle but important way, however, in which the adjudication of a veteran claim is different from ordinary litigation. A judge or jury in a court case is presented with two or more versions of truth from which to pick. An advocate for a party will not only present that party’s perception of events but will also probe, via cross examination, the opposing party’s evidence, exposing strengths and weaknesses. In this way the record is fully developed and the finder of fact—judge or jury—can impartially decide which version seems most likely as to each fact.
But decision of a veteran claim is “gatekeeping” adjudication. Only one version of events is presented, that of the claimant, and the VA decides whether enough evidence of the right sort has been presented to get through the gate and qualify for benefits. If ordinary litigation is multiple choice, a VA claim is strictly true/false. There is no challenge to a veteran’s evidence via cross examination by an opposing party. While this would seem at first blush to favor veterans, it actually means that, instead of exercising a neutral choice among several well-developed versions of “truth” proposed, the adjudicator must give thumbs up or down to only one version. Since evidence is not challenged by an opponent, only VA can ensure that weaknesses are exposed and strengths highlighted. The yes-or-no posture of a veteran claim creates a subtle impulse in the gatekeeper to be not only judge but also opposing party, which often leads it to be highly and defensively skeptical of a claimant’s evidence. Think about the different attitudes, especially regarding trust, that would come from a judge versus a sentry. Adjudication, VA style, unintentionally ends up being subtly resistant to claims, because VA is more of a sentry guarding the government’s purse than it is a judge.