Archive for November, 2009

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EVIDENCE IS CRUCIAL: Part 3

Monday, November 16th, 2009

In a previous blog posting I discussed evidence in veterans cases, including a feature unique to this system, the rule that if evidence is approximately balanced on any given point, the veteran claimant is supposed to be given the benefit of the doubt. In actual practice this favorable rule is not applied because VA determines that the evidence is not balanced. This posting will discuss how that occurs and some hints about developing your evidence to avoid some of the most common reasons for losing claims.
How VA gets around the benefit-of-the-doubt rule
The equipoise standard in veterans cases seems like a highly favorable factor: all one has to do to win is show it’s 50-50. The rub comes in the fact that weighing evidence has a large component of subjective judgment, and by finding some items of evidence more believable than others, VA can conclude that the evidence is not balanced but is one-sided against the claim. In the example in the previous posting about a soldier fall and the immediate treatment records not including any mention of a head injury, the decision-maker might choose to believe that triage doctors are very thorough in noting any symptoms complained of, so the omission of any mention of a head injury would weigh very heavily in this decision-maker’s evaluation of the evidence. To a certain degree the decision-maker is permitted to make these evaluations and the Veterans Court will not disturb the agency’s conclusions if they are plausible.
On the other hand, VA quite often brings completely unwarranted assumptions into its weighing of evidence, such as the notion that if there are no complaints of symptoms or treatment for a condition in medical records, the veteran had no such symptoms or condition; the notion is based on the assumption that all patients always consult a doctor for every condition or complaint they have. It’s not true and it’s not in the evidence, but VA will assume it anyway. These sorts of erroneous evaluations of evidence are often the basis for appeal.
Good evidence
Presenting strong evidence to support a claim is vital to its success. The best way to accomplish this is, first, to know the key facts necessary to prove a claim, what lawyers call “elements.” The three elements of a service-connection claim are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
VA is required to send notice to all claimants of what must be proven; it often obscures this information in a blizzard of legal provisions or misleading statements about the duty to assist, but somewhere in the notice letter sent after the claim is filed will usually be a listing of the elements. Ask yourself if you have submitted or can obtain convincing information on each of those elements. (This inquiry can also serve to prompt the threshold question central to any claim: is there a provable entitlement to the benefit sought? VA does not award benefits based on sympathy or veteran hardship; it does not care legally whether you are in financial straits. It can only award based on evidence.)
Especially bear in mind that, whether your claim is for service connection or for increase of rating, it requires medical expert evidence to establish one of the key facts: you must show causal relation with an incident in service for a service connection claim, and you must show degree of severity of the condition in an increased rating claim. If you don’t have such evidence, you need to get it, either through treating physicians or perhaps by pressing VA to get a medical opinion. Having evidence that supports each of the necessary elements is the most important factor in developing a successful claim.
What is good evidence? Anything pertinent to an issue of the claim, that is, one of the crucial facts that must be proven, is relevant evidence and must be considered, but certain qualities affect the weight given to evidence. A few hints:
Direct personal knowledge. Hearsay (something somebody else told you), which is a concern in other types of legal cases, is not strictly taboo in veterans cases, but evidence is unquestionably stronger if it comes from someone with direct personal knowledge of the fact in question. A veteran can, for example, say that he received a certain diagnosis for a condition, but much stronger, more convincing evidence would be the actual medical record in which the diagnosis was stated or a statement from the doctor who made it.
Expert versus lay testimony. Related to the last point is that those to provide evidence must be “competent” to do so. This is a legal term that basically means, possessed of the knowledge, training or experience to reliably say what is being said. Thus, a family member could be perfectly competent to say that a veteran had a limp when she returned from service, but unless that family member is a doctor, he is not competent to say that the veteran had a hip dislocation; the latter requires medical training and judgment. Don’t overlook, though, the capability of lay persons to competently attest to what they can clearly see or perceive.
Corroboration. Although it is supposed to be neutral, VA in fact views anything a claimant says as suspect, because there is always the possibility that the claimant is fabricating or exaggerating something in order to get money from the government. This factor can be offset through corroboration: records or other witnesses who can verify what the claimant is saying. Even a writing made by a claimant can serve to corroborate, if the record was made contemporaneously with the event, e.g. jotting down immediately afterward what happened during a medical exam or an accident. If reliance must be placed solely on a claimant’s recollection, it can be strengthened through detail that increases the plausibility of the story. Needless to say, any hint of falsehood or inaccuracy seriously undermines the value of evidence.
By paying careful attention to whether you have evidence on each of the key facts, and observing the preceding tips for making that evidence as persuasive as possible, you can significantly improve your chances of VA making a favorable decision initially, but even if it doesn’t, you will have vastly improved your chances of a successful appeal and eventual favorable decision.

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Two Goodman Allen Donnelly Attorneys set to speak at National Organization of Veterans’ Advocates Fall 2009 conference

Thursday, November 5th, 2009

The National Organization of Veterans’ Advocates (NOVA) fall conference is scheduled to take place on November 5,6 and 7, 2009 in Charlotte, North Carolina. The conference includes a one day seminar for practitioners who are new to the area of veterans’ law on Thursday, November 5 and a two day general seminar for more advanced practitioners beginning Friday November 6 and continuing through Saturday. The seminar is intended to increase the knowledge and expertise of those who represent veterans before the U.S. Court of Appeals for Veterans Claims and the Department of Veterans Affairs.

Goodman Allen Donnelly attorneys, Sandy Wischow and Todd Wesche have been invited to be presenters at the conference. Ms. Wischow will discuss the important issues surrounding legal ethics in veterans law and Mr. Wesche will address military discharge issues including the Physical Evaluation Board and concurrent receipt of retirement and disability pay.

For additional information click here

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