Military Veterans' Lawyer Blog

Title 38 specifically, 38 U.S.C. § 5103A - Duty to Assist Claimants, establishes and the Court of Appeals for Veterans Claims has held the threshold for VA’s duty to assist veterans with their claims is low. Subparagraph 5103A(a) states “the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." Court holdings provide a veteran’s lay statement describing the nature of the disability, including such things as the initial incident/illness/injury, symptoms associated with that event and the continuing symptomatology and treatment, if credible, is sufficient to trigger the VA’s duty to assist.

Lay Statements
Examples of lay statements supporting a claim when medical documentation is not available would be a knee disability by a former paratrooper who is injured during a combat jump or a claim of tinnitus (ringing in the ears) by a former artilleryman claiming exposure to acoustic trauma. Underlying this, of course, is the fundamental requirement for a current residual, chronic disability -- a current disability. A diagnosis by a physician is not necessary, but you must be able to clearly describe a residual and chronic condition.

Why is this important? Credible statements provide you with an alternative when there is little or no medical evidence to support your claim for disability. The statute and the Court’s review and guidance provide the guidelines and a strategy for overcoming the lack of a medical opinion on whether the current residual disability is related to the described in-service disability. This medical opinion is necessary to establish a service connection when service medical records are silent or equivocal in verifying the in-service disease, injury, or event and medical evidence of treatment since active duty is lacking.

How you maximize this strategy to help trigger VA’s duty to assist in obtaining the medical examination? It is important to provide as much information as possible when making your claim or appealing a VA decision. For example, “I was running inside the company compound at Long Bihn Post, Vietnam on July 5, 1968, when I stepped in a hole and twisted my ankle”. Your description of symptoms must be directed at clearly describing how you were affected by the in-service event. Simply stating “I had pain” is probably not enough.

For example, “my ankle immediately started swelling, became bruised, was throbbing and I could not bear weight on it” is more descriptive and quantifies the pain for the claim. Describe the pain, i.e., sharp, throbbing, dull and achy, etc. You should describe what, if any, treatment you received following the in-service event. Your description should provide as much detailed information as possible, and should contain enough information to verify or raise the presumption the disease, injury, or event occurred.

The detailed information you state should include dates of treatment, provider of treatment, and type of treatment. These details are important. For example, you should describe who, what, where, when the treatment was received such as “on July 6, 1968, I was seen by the company medic, was given aspirin and had my ankle wrapped with an elastic bandage.” This information described to treatment in enough detail to document the in-service disability.

Detailed information about treatment after service for the in-service event should also be provided. This information should be specific and designed to clearly describe the on-going nature of symptoms following active duty. For example, “My ankle flares up several times per year”. “My ankle is weak and easily re-injured resulting in renewed swelling, pain and inability to bear weight. The pain is initially throbbing and turns into dull and achy.”

You should describe what kind of treatment you obtained for these recurrent flare-ups. For example, “since the medic gave me aspirin and wrapped my ankle, I use over-the-counter pain medications (Motrin), use an Ace wrap and a cane when I have problems with my ankle.” If you cannot provide this type of information then the VA’s duty to assist with your claim will likely not be triggered.

Both the Freedom of Information Act (FOIA) and the Privacy Act (PA) give the public the right to request access to records held by Federal agencies.

FOIA applies to all Federal agency records with access rights generally given to “any person.” However, one of the FOIA exemptions permits the withholding of information about individuals to protect their personal privacy.

The Privacy Act applies to only those Federal agency records that are in a “systems of records.” A system of records contains information about individuals that is retrievable using a name or personal identifier (e.g., claim file number). Privacy Act access rights are given only to individuals or their appointed representatives who are the subject of the records sought.

How long does VA have to process a request? The law requires VA respond within 20 working days of the date that the request is received by the custodian of the record. Within that time, the custodian of the record is required to at least advise the requester whether VA has any information responsive to the request. If feasible, the requested information will also be released within 20 working days. VA processes FOIA / PA requests on a first-in, first-out basis. Therefore, if there is a backlog of pending requests, it will take longer to provide a final response.

If the VA cannot provide the requested records within 20 working days, what do they do? The VA will provide the requestor with an interim reply in writing. This reply should include the following language:

This acknowledges receipt of your recent Freedom of Information Act (FOIA) - Privacy Act request, and to inform you of the decision to grant to you access to the requested records if found, and not exempted from disclosure by law. Any releasable sections of the requested records shall be provided to you after deletion of the parts that are exempt. You may expect to receive a response as promptly as possible. Our statewide telephone number is 1-800-827-1000.

FOIA - Privacy Act Officer.

By sending this response within 20 working days, the VA meets the law’s timeliness requirement. The VA will then send the requested documents on the first-in, first-out basis described above. Therefore, if you anticipate needing documents from your VA claim folder, a veteran needs to request these records in a timely and early enough manner prior to any deadline for submitting a claim. The request for the C-File should include the time, if you have wait for the VA to respond, to account for the delay in the VA’s response.

Chronicity and Continuity
Chronicity is established when the disability has been present since the in-service disease, injury, or event occurred. In other words, you have had this residual condition to one degree or another since the disability occurred and leaving active duty.

The second element to prove a nexus is continuity. Continuity means you have been receiving treatment for the condition since leaving active duty. In the absence of clear evidence of continuity and chronicity, the VA may order an opinion examination and ask the examiner to determine if the current disability is “at least as likely as not” related to the in-service disease, injury, or event.

This statement of “at least as likely as not” opinion is then used by the VA to establish the nexus, or connection between the in-service illness/injury exists in order to grant entitlement to the service connected disability. Again, when and how the VA determines whether a nexus opinion is required will be discussed in a later blog.

Establishing entitlement to compensation from the Department of Veterans Affairs for service connected disabilities requires the claimant meet three criteria.

To receive a service-connected disability benefit a veteran must have suffered a disease, injury, or event that resulted in a disability while on active duty, or had a pre-existing condition that was aggravated by the veteran’s service. For this paper these 4 elements that caused the in-service disability will be referred to as disease, injury, or event.

The first criteria are an in-service disease, injury, or event that resulted in a disability. This disease, injury, or event must have occurred during a period of active duty. Since medical evidence is paramount it is usually helpful if medical treatment was provided and recorded in your service medical (treatment) records while on active duty, but not absolutely necessary. The lay statement blog discusses how a claimants applying for a service connected disability can overcome the lack of documented treatment for a disease, injury, or event while on active duty.

The second criterion is a present residual disability related to that injury or illness. You must have a current disability. This means a chronic disability which has been diagnosed by either a private physician or a VA physician. Again, having a confirmed diagnosis of current disability is helpful to the success of your claim, but not absolutely necessary. This issue will also be discussed in a later blog.

The third requirement is a nexus, or connection, between the in-service disease, injury, or event and the current disability. There must be a connection between the in-service disability and the veteran's present disability. Federal statute, case law, and VA rules and regulations require the VA to look for two elements when determining if a nexus exists. These elements are called chronicity and continuity.

See the chronicity and continuity blog for more information on nexus.

Determining the first requirement that an in-service disease, injury, or event resulted in a disability in service is best accomplished through your service medical (treatment) records. If you were injured or became ill during active duty and sought treatment your service treatment records should establish this first element. The VA is responsible, by statute, for obtaining these records. The VA, however, is only required to do a reasonable effort to obtain the records. The VA may claim that they asked the veteran if any other records exist to prove his claim of disability. I will discuss how to overcome this element when VA determines service treatment records are not available in a later blog.

The second requirement of a current disability is best proven by treatment records for the disability since leaving service. This can be done by the use of your VA Medical Center treatment records or by providing the VA with copies of private treatment records. These records must relate to treatment for the disability you are claiming. Submitting treatment records for your heart condition when you’re claiming a back condition will not meet the requirement for establishing a nexus between the in-service illness/injury to your back and your current back disability.

Lastly, the VA should look at all the evidence, service personnel records and service and private medical records, to determine if the nexus has been established. If the nexus is proven to exist, entitlement to service connection for the claimed condition should be established. Remember the three requirements to establish entitlement to service connection disability benefits before filing your claim. Decide how you will best meet these requirements and be able to prove these requirements.

Handling of Medical Records
The attorneys and the Firms experienced staff go through each and every page to determine what medical evidence will support the veteran's claim in accordance with Federal Veterans Laws Rules and Regulations. My Firm and many other attorneys’ offices, employ medical professionals to do an independent chart review to determine if the standard of care for the veteran is in accordance with treatment provided to the veteran. Our clients are also referred to independent medical doctors and psychiatrist who evaluate the totality of the veteran’s medical record.

Only a medical professional may make a medical opinion. Even though you may understand what disease or injury caused your disability, in most cases an opinion only becomes evidence when rendered by a medical professional.

Not every claim can be supported by a medical professional’s opinion. The medical professionals we utilize our professionals, thereby if a veteran has medical evidence it is documented. If the veteran does not have a claim supported by their medical records the firm informs the veteran. If it is possible to send the veteran to a physician, the firm informs a veteran of this in order to document the medical disability the veteran is currently facing and to get the veteran treated.

This evidence normally means medical evidence. Attorneys know what evidence is required to prove a claim. Attorneys also know how to use evidence from medical professional’s statements and opinions contained in the veteran’s medical records. An attorney will NOT fabricate a medical malady to help you improve your claim. Quite the contrary, an attorney’s integrity and professional requirements with the court system requires the attorney only presents evidence that is truthful. This level of integrity helps you in a court.

Relying upon the VA medical centers or QTC to provide you an accurate medical evaluation is once again relying upon extremely busy and overworked human beings to provide you the medical reports and evidence required to prove your claim. An attorney who understands VA laws, rules, and regulations is your best choice for proving your claim for VA benefits after you have sent in your Notice of Disagreement.

Proper development and presentation of evidence is critical to prove your claim before the VA Decision Review Officer, BVA, or the Court. Having an independent medical doctor perform an independent chart review provides the medical professional the ability to render an opinion on any of the VA medical or QTC medical personnel statements contained in a veterans claim folder.

This Firm tells our clients point-blank the firm will not present any frivolous or fictitious claims. By the attorney understanding the laws and the rules the courts will ultimately apply to your claim, hiring an attorney as soon as you have received your initial VA decision that you disagree with makes sense. When your claim is still at the VARO is the time to correct the record and point out to the VA the evidence that supports your claim. The attorney can direct you to medical professionals who may start documenting your disabilities, and presenting their reports as evidence supporting your claim.

Expertise with Administrative Law and Court Rules
Attorneys are licensed by State Bars and have fiduciary duties to their clients. Additionally, attorneys have professional ethical requirements to the Court and their clients. This means the attorney must expertly handle your case.

Contrasting this with a VSO I once had an experience with as my representative on a claim for myself, the VSO employee / National Service officer was fast to state legal terms like “hearsay” and cite regulations showing she did not have to do more than fill-out the claim form. Her understanding of hearsay, however, was applied incorrectly. The documents I needed were records. Hearsay applies to spoken testimony, and there are exceptions to admit even hearsay. The record I wanted had an exception allowing its use. This particular VSO had fought over 5 years not to fill-out a form supported by evidence. Once I took the claim from the VSO, I received payment for the benefit from the DoD within 2.5 months. Unfortunately the government will not pay interest on the back pay, and in-addition to losing the interest I lost the use of this money for the 5 years the VSO fought not to fill out one paper.

An additional area separating an attorney from a VSO is the volume of cases being represented by one person. A typical VSO has over 1100 veterans for each national service officer or benefits counselor. Now think about your medical records, if you had any sort of injury while on active duty, or if you did not have an injury, think about those colonels you knew with 2 or 3 binders of medical records. Can you accurately read a thousand pages times 3 or 4 veterans per day and accurately present the evidence that the VA needs to prove a VA benefits claim?

The reduced client load, expertise in veterans law, and the use of independent medical professionals is just a few reasons why you should hire an experienced VA law firm at the earliest opportunity.

Attorneys Accountability
VSOs are not accountable, if they miss a deadline or fail to handle your claim in a professional and thorough manner your claim and remedies against the VSO are very limited. Your VA benefits claim on the other hand may have lost its effective date, which will cost you money the VA would have paid should you win your appeal.

Thinking about your military training, you are taught the basics and then the advanced tactics to perform your Mission. Of course you can handle your VA claim by yourself, with a VSO, or an attorney. But do you have the advance skills to know and handle all the legal and medical issues? As the adage states “a person who represents himself has hired a fool.” The reason for this is it is very hard to be objective when you are representing yourself. An attorney on the other hand, is trained to be objective and present your evidence in a manner best supporting your claim.

Having an advocate who understands veteran laws, rules, and regulations is imperative to win a VA appeal. An attorney and law firm experienced in Veteran Law is a tremendous asset in your arsenal to win a VA benefits claim.

Benefits of an attorney
Attorneys unlike Veteran Service Organizations (VSO) are accountable, have expertise with administrative law, court rules, and understand how to articulate a position with evidence to prove the claim. Once your case reaches the CAVC, this Court only reviews the record it has before the court. The record consists of almost everything submitted during the VA claims processes culminating with the BVA denial of the veteran’s claim. Waiting until the a claim reaches the CAVC to hire an attorney means your "record" is established, and the attorney must now show error occurred at the VA or BVA.

Once a case is at the CAVC the case becomes an adversarial case. The VA no longer has a duty to assist you. The VA will be represented by their attorneys whose job it is to represent the VA’s position. At this point the BVA (a part of the VA) has determined your claim is without merit or you are not entitled to the benefit. Once at the CAVC, you cannot now “prove your claim” by calling witnesses and “proving your case at trial.” The trial and evidence phase are over and lawyers from the VA will be in the U.S. Court of Veterans Claims to argue the VA’s position your claim is without merit and the Court should uphold the BVA denial.

There are a lot of reasons to hire an attorney early -- one is to properly and thoroughly review your records and present your claim backed by medical evidence.

Why You Should Hire an Attorney for Your VA Claims
A couple of days ago I received a call from a veteran who informed me he was told not to hire an attorney until he went to the U.S. Court of Appeals for Veteran’s Claims (CAVC). The veteran described the old law passed after the Civil War. The Veteran Service Officer who had advised the veteran to wait to hire an attorney was describing the law prior to passage of Public Law 109-461 in December 2006. The Civil War era law was rescinded in order to help veterans. Why not take advantage of the new law designed to help you with your veteran’s benefits claim?

Public Law 109-461, The Veterans Benefits and Health Care and Information Technology Act 2006, now allows a veteran to hire an attorney after the veteran receives a rating decision and the veteran sends in a notice of disagreement with the respective veteran claim to the VA.

Historically
Until Public Law 109-461 was passed veterans could not hire an attorney until they actually reached the CAVC for representation with their claims. For any veteran that has pursued their VA claim, you understand many organizations exist to help you with your VA benefits claim. But only attorneys are permitted to practice in a court of law. The CAVC is an appellate court just below the U.S. Court for the Federal Circuit. The CAVC was created in 1988 to hear appeals from the Board of Veteran Appeals (BVA). Hiring an attorney only after you reach the CAVC is a mistake.

Attorneys are trained and permitted by law to do work National Service Officers or representatives cannot do, such as present oral arguments at the CAVC or the Federal Circuit. The VSO's should see attorneys trained to handle VA claims as a means to relieve the 1100+ case load the VSO representatives currently are assigned. Attorneys, thereby provide expert representation to clients immediately after the VA Regional Office issues the initial denial. From that moment of the VA sending you the rating decision telling you “no” to your claim, you have to convince the VA they overlooked evidence proving your claim.

Attorneys are trained to prove cases, and a VA benefits claim is a case.

Tenants
Tenants must comply with the contract and the Texas Property Code.

A tenant should understand a Landlord has the right to retain a security deposit and make charges “for which the tenant is legally liable under the lease or as a result of breaching the lease.”

Items a tenant should do to secure the return of their security deposit:
1. Comply with the lease;
2. Provide a WRITTEN 30 day notice;
3. Provide a forwarding address;
4. Document the condition of the residence at move in and surrender;
5. Understand the residential lease deductions in the lease agreement;
6. Do not try to use the security deposit as the last month’s rent;
7. Do not damage the residence; and
8. Do not skip out of the residence without paying.

If a landlord fails to return a security deposit §92.109 provides remedies to the tenant. Specifically a landlord may be liable for $100, and three times the amount of the wrongfully withheld security deposit, and reasonable attorney fees.

Each case is fact specific, however, a tenant who has complied with the Texas Property Code and their residential lease contract should contact an attorney to determine their legal rights if a landlord refuses to return their deposit.

The Texas Property Code governs security deposits. The landlord and tenant both have obligations and requirements under Chapter 92, Residential Tendencies, et seq., Subchapter C, Security Deposits. This chapter provides the specific requirements the landlord and the tenant must comply concerning the security deposit. First, we will discuss the landlord requirements.

Landlord
The security deposit is meant, “primarily to secure performance under a lease of a dwelling that has been entered into by a landlord and a tenant.” The advance of money by the tenant to the landlord gives the landlord a means of protecting his investment.

If the landlord requires the tenant give a 30 day notice that the tenant is vacating the property “as a condition for refunding the security deposit” this section of the lease agreement must be underlined or printed in conspicuous bold print in the lease.” The Texas Association of Realtors Residential Lease usually has this in section 10 of the lease, titled -- Security Deposit Refund. A typical lease will have wording similar to the following:
Refund: Tenant must give Landlord at least thirty (30) days written notice of surrender before Landlord is obligated to refund or account for the security deposit.

Section 92.109, Liability of Landlord, states a landlord who fails to comply with this section may owe the tenant three times the portion of the deposit wrongfully withheld, $100, plus reasonable attorney’s fees. For a landlord to be in compliance, the landlord must return the security deposit or within 30 days provide a written description and itemization of the deductions being withheld from the security deposit.

The Texas property code creates that a presumption a Landlord who does not provide a written itemization and description to the former tenant within 30 days has acted in bad faith. Case law does provide a Landlord with the ability to defeat the presumption of bad faith by showing the Landlord acted in good faith.

A security deposit is not meant to provide a Landlord with a 13th month of revenue from a 12-month lease. Read your contract carefully to determine what deductions a Landlord is allowed to make – BEFORE SIGNING THE LEASE. For instance, a Landlord may have a carpet cleaning deduction built into a pet agreement. The Texas Property Code and the residential lease contract will determine what is allowable.

In general, exposure to stressors can take three forms. The first is engagement in combat operations while on active duty, the second is non combat experiences such as plane crashes, an automobile accident or other non-combat traumas, and the third is personal/sexual assault.

Establishing exposure to stressors is accomplished in one of two ways. First, is the receipt of awards/decorations while on active duty which confirm engagement in combat operations while on active duty. Such things as a Combat Infantry Badge, Combat Action Ribbon, Purple Heart, Silver Star, and Bronze Star with V Device can confirm the veteran was exposed to combat operations. If you have received one of these awards/decorations the VA considers your exposure to stressors confirmed and no further action is necessary by the VA or you to establish the stressor element of the claim for PTSD.

If you did not receive one of the awards/decorations confirming engagement in combat operations, the law requires you must provide “stressor information” to the VA so they can attempt to verify your exposure to combat stressors. If this is the case, there are some very important things you should know about providing this information. First, the stressor information must be as specific as possible. Specificity means date, place, unit and nature of the stressor must be provided in your statement of the claim to the VA.

The date requires as accurate a date as possible. The date is critical for the VA to research and confirm your exposure to the stressor event. For the purposes of researching your claimed stressor, the VA needs the date to be inside a 60 day window of the actual event.

Next, the place needs to be specific for the same reasons as the date, a researcher will have to verify your exposure to the stressor. An example of too general a location is telling the VA the place, the stressor event occurred, was in the Mekong Delta. This will probably not be enough information to allow the researchers to find any useful information to verify your claimed stressors.

Thirdly, you need to provide your unit at the time of the stressor down to the Company level. Again, the researchers need this information to access the various types of information needed to verify you were exposed to stressors.

Last is the nature of the stressor. Telling the VA your stressor is you “saw dead bodies” is not going to result in the VA being able to verify your stressors. Again, you will need to be specific as to what you experience started your PTSD. Another example of a claim that is too general would be if your claimed stressor is you witnessed a traumatic event in the street while you were on pass in Saigon. The VA will have no way to verify your information unless you can provide the exact place and names of those involved.

Once the VA has established that you have been diagnosed with PTSD and have verified your claimed stressors, they will order an examination to determine the nexus or relationship between your confirmed stressors and your diagnosed PTSD.

If you have been diagnosed with PTSD and will be filing a claim, now is the time to begin thinking about information relating to stressors and the documentation required to prove your exposure to the stressors. In some cases, the stressors were many years ago and remembering the events that caused the stressors is painful. If you didn’t receive one of the awards/decorations confirming combat stressors, providing good, specific stressor information is critical to success in establishing service connection for your PTSD.

Post Traumatic Stress Disorder (PTSD) is a psychiatric condition which falls under Anxiety Disorders. It occurs in individuals who have been exposed to events which have placed the individual in fear of harm or death.

I am not a physician or psychologist, however, the firm is staffed with experienced Veteran Advocates led by an experienced Veteran Attorney, so I won’t try to provide clinical information on PTSD. However, I can provide some helpful information for those suffering from PTSD who are filing claims for service connected compensation from the Department of Veterans Affairs.

Establishing service connection for PTSD requires three basic requirements. First, you must have been diagnosed with PTSD by a psychiatrist or clinical psychologist. Second, you must have been exposed to events, called stressors by VA, while on active duty which have led to this condition. Third, you must establish a relationship, nexus (connection), between the in-service stressors and the current PTSD.