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Matthew Hill

Video Blog – Buddy Statements For Increased Rating

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Matthew Hill: Hello and welcome to the Hill and Ponton VA Video Blog. I’m Matthew Hill here with Carol Ponton and today we are talking about buddy statements. This is the fourth part in our four-part series on buddy statements. The first one we discussed was how important they are.

Carol Ponton: Yes.

Matthew Hill: And then the second one was how to actually craft a buddy statement. The last one we just talked about was on service connection and how you can show through buddy statements your disability’s related service and this is going to be on rating so essentially, you’re already rated for a disability and now you’re trying to get an increased rating. You’re trying to get the VA to understand what the correct rating should be. And we were talking about this and we think one of the disabilities that lends itself to understanding this the best is actually PTSD.

Carol Ponton: Right.

Matthew Hill: A lot of times you have PTSD, it’s just the perfect storm when it comes to veterans who aren’t really self-aware, they don’t know how bad it is. On top of that, they don’t want to talk about it, they don’t want to think about it. When they go see their doctors, they don’t want their doctors to do something to them, put them on medication, lock them up and so they don’t tell their doctors how it’s going. And so a lot of times you’ll get a veteran to where you see exams, you even see discontinuing treatment records showing … guy seems pretty okay, he’s coping with it but once you talk to those around him, family, friends, bosses, you realize that’s not the case at all.

Carol Ponton: Right. We recommend buddy statements for, first of all, the veteran. When we talk to the veteran I pull out DBQs, or disability questionnaires that … benefit questionnaires that the VA has online and there’s a really good one for PTSD and it goes down all of the criteria they think you need in order to be service connected for PTSD and what they’re looking for as the problems that come with that. And so I like to ask the veteran about each one of those criteria and then I go through all the symptoms that people have. And I want to make sure they’re telling me the truth because, as you said, most people … It’s horrible to have to talk about it and think about it but I tell them this is the one time we really need to let the VA know what’s going on with you.

Carol Ponton: I go through all of that and then I ask who’s the person that knows you the best. Are you married? Do you have family members? And then we talk to them and we tell the veterans, don’t get upset with these people. These are the people that are helping us paint a picture of how this disease has really harmed your life and when you go to them and you need to know what issues to talk about and that’s why this form is so helpful because you start saying is he paranoid? Is he unable to be around people? Does he have trust issues? Anger issues? Give me examples of those.

Carol Ponton: This buddy statement really gives you an opportunity to create a wonderful picture of how PTSD has totally affected this veteran.

Matthew Hill: I like to think about it as a total … I don’t know if it’s necessarily wonderful but it’s a way to get information that the veteran just doesn’t see. One of the biggest things any veteran, any person with PTSD will tell you is, the most horrible are the nightmares, the night terrors, the flashbacks and as bad as those are, the VA caps the rating on those at 30%. So, unfortunately, a lot of times what I see on the DBQs from doctors is that that’s what they check. Oh, this person has really bad nightmares, that’s capped but on top of that, this person might have really bad anger issues. Yells and screams just gets in fights for no reason, isolates himself, nobody wants to be around him. That’s a significant problem. And that’s a problem that would get the veteran a much higher rating. And unfortunately, it’s also one that they might not be that self-aware of.

Carol Ponton: Right. They may feel they get angry because there’s a reason that they get angry and the people that look at him say, that was way out of line for what happened.

Matthew Hill: Right, right. The response is worse. I typically start, like Carol says, with the veteran to ask them how many anger issues they have and a typical response I’ll get is, I get irritated but I don’t get angry. And so I go to well, what happens when a guy cuts you off in traffic and then you get a list of expletives, a list of curse words, and some pretty interesting stories but they still might not be aware of how overreacting that is and that’s why working with the wife, working with children, working with friends, coworkers, you can get a really good statement. And again, it goes back to getting a competent statement. You just want them to list stories that happened, facts, observations. You don’t need them to say this guy deserves benefits, you need them to lay out what exactly happened or what they see or the children being on pins and needles all the time around their dad, and why.

Carol Ponton: And what to put in is just as important as what you leave out. And that’s really right, please don’t put this person deserves benefits, he’s a really nice guy. He may be all that and he may deserve that but when you put that in there, all of a sudden the VA says, is this subjective? Are you really trying to plead his case or are you … What are doing here? So don’t distract the VA. You can win his case by telling the truth. It’s like seeing a movie, you want to paint a picture of what you see with this veteran.

Matthew Hill: Right. There’s a time and place for the argument, the persuasion and that’s your VSO or your attorney actually writing a letter but the point of a buddy statement, the power of the buddy statement, is the reflection of the facts and of the stories because the VA can’t make that go away. What gets the veteran a proper rating is just showing the VA a day in the life and in a service connection case they might be able to hide the service records, they might be able to not get something but this is what’s really going on day-to-day and that’s the power of the buddy statement.

Carol Ponton: Well, the other power that I see is, think about the person, the decision review officer, he reads case after case after case. You want to make this personal, you want to make this so that the person knows what you’re living with and all of a sudden they can see, oh my gosh, this is really awful. This is your chance to tell your story so make sure it’s complete.

Matthew Hill: Well, thank you for tuning in. Again, this was the fourth part of the four-part series of buddy statements and the power they have on a veteran’s claim. Thank you.

Matthew Hill

Video Blog – Buddy Statements for Service Connection

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Matthew Hill: Hello, I’m Matthew Hill here with Carol Ponton, on the Hill & Ponton VA Video Blog. It’s a day we’re talking to you about buddy statements.
Carol Ponton: Buddy statements.
Matthew Hill: It’s a third in a four-part series on buddy statements and their importance in your claim. The first one was just the overall importance of buddy statements, and then we talked about how to create one.
Now we want to jump into specifics. Here we’re going to talk about service connection claims, proving that your disability is related to service and using buddy statements to do it. We see this right now where we seem to see this a bunch is with Thailand and veterans trying to prove they’re exposed to agent orange, herbicides, while they were in Thailand and using other veterans to help for that.
Carol, what do you see?
Carol Ponton: It’s crucial to proving these cases. Unfortunately, the VA seems to take the position that nobody worked on the perimeter, although the perimeters are so close to everybody. What we have-
Matthew Hill: It’s like since everybody worked on the perimeter, nobody worked on the perimeter.
Carol Ponton: Right, and so we found that we’re able to get benefits for veterans with buddy statements. We try to get someone that we can show that was in his unit, someone replaced him in his unit, someone worked with him on the flight line, and says, “I saw them spraying,” or one of the things we have is Thailand’s a jungle.
There was no jungle around our base. You could see the jungle off in the distance, but all you saw coming up close was dead foliage. Periodically, somebody would come around and spray it. There was never a lawnmower there. There was always spraying. For that reason, I know that this was herbicide that was used there, and it killed all of the foliage. These are ways to get people benefits.
Matthew Hill: Right, and so going back to what she was saying, having somebody there, and again, laying out the predicate, laying out the foundation of, “My name’s Jimmy Smith. I served in this unit in the Army. We were stationed at this base in Thailand,” and just going down the ladder of all those things and then saying, “While I was there, I was in a hooch, and we were 15 meters from the actual perimeter. I worked on the flight line, which might have been 50 meters from the perimeter. Bob Jones was in my unit, and we worked together. We were there for 10 months,” so just laying out what the person knows, how they are connected to either the veteran or the place and time. Then that just gives further evidence of what was going on with the veteran.
With Thailand, it’s just the VA stance is just nonsensical. They’re making each and every veteran fight this as if they grant benefits for one of our veterans saying, “Okay, you were close to the flight line. Therefore, you were close to the perimeter, and we’ll give you benefits.” But when it comes to the next veteran-
Carol Ponton: You’ve got to start all over again.
Matthew Hill: It’s like they have amnesia.
Carol Ponton: One of the things that we use for a buddy statement is maps, photos. It’s really important to take a photo of the base and show where were you living, where were you working. When you went off base, did you go across the perimeter? Then I have veterans that have the hooches that maybe they lived in that had no windows. They would talk about the fact that there would be storms blowing dust through there, or that they would have … one of them had a garden and said the people who went around spraying for herbicides and killed their entire garden.
What you want to do is draw a picture. The clearer you can make it for the VA, the better chance you have of winning. The more people that can verify this is what was going on, the better chance.
Matthew Hill: Right. It’s your story, and you’ve got to tell your story. The VA doesn’t believe your story, so you need to have supporting characters. You need to have others verify what they can of your story. Again, this is one of the most important pieces of evidence you get, because you can create this. You are in control of this to the extent that you know people who are there with you. You know people who served where you served, and you can get their statements to help you win your case.
Carol Ponton: Exactly. If you’re not in touch with someone, you don’t know how to get a hold of them, go online. There are a lot of people now that are going online searching for other people or people that have put statements online, because they’ve been so frustrated about what happened to them. There are pictures of Udorn or all the other bases in Thailand. You can bring that picture, make a map yourself of what happened, and then give it to your friend for them to identify.
Matthew Hill: Just, yeah, say where they were.
Thank you again for tuning in. This is a third part in a four part series on buddy statements. Again, we talked today about service connection and how you can get your case connected to service through the help of buddy statements. The next one we’re going to do is going to be on increased rating and buddy statements. Thanks.

 

Robin Rosenblad, Claims Advocate

What if the VA Sends Me a Notice Proposing to Reduce My Disability Rating?

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There are times when the VA might review a disability rating you have had in order to determine if your condition has improved.   If the VA is considering lowering your rating in this situation, try not to panic as there are some procedures the VA must follow and things you can do to assist your case.

First of all, you must realize that simply receiving the letter proposing the reduction does not mean that your benefits have been taken away.   You will continue to receive your benefits until such time as the VA makes a decision about the proposed reduction.  The VA is required to provide a claimant with written notice prior to enacting the reduction so it should not occur without notice to you.   The VA must also allow a period of at least sixty (60) days to allow the claimant to provide additional evidence of how the service-connected condition has not improved.

Request a Hearing

First and foremost, it would be wise to request a hearing with the VA regarding the proposed reduction.  You must request the hearing within thirty (30) days of the date of the VA letter proposing the reduction.  The VA then cannot reduce your rating without having the hearing (which typically takes some time) and will allow you more time to provide that additional evidence.

After requesting a hearing, there are other things you can do.

To assess your current condition, the VA might require that you undergo another disability C&P exam.  If one is set for you, DO attend it!   Be forthright and let the examiner know all the symptoms you are still having and how often they occur.  (If you do not attend the exam, the VA will have the right to reduce your rating.)

Obtain “buddy statements” from family, friends, co-workers, etc. regarding how your condition still affects you.  They can describe details of instances they recall where you were unable to participate in certain activities or events due to your medical condition or how they and others have had to assist you in order for you to manage your home life or work life because of your disability.  If someone has known you quite a while, they can possibly attest to how your condition has actually worsened over the past year(s), months, etc.

You can obtain copies of your medical records where you have told your doctors about your ongoing symptoms and you have continued to receive treatment for them.  Then, you can prepare a statement yourself talking about the conditions you still have and point out entries in your medical records that confirm this and attach those pages to your statement.

The VA is not supposed to reduce your rating simply because you may have had a short period of improvement.   It is only supposed to reduce a rating if a veteran’s condition shows “sustained, continual improvement.”

If the VA reduces your rating anyway, you can still appeal it so long as you do so within one year of the rating decision.

Matthew Hill

Video Blog – How to Make Buddy Statements

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Matthew Hill: Hello and welcome to the Hill & Ponton VA Video Blog. My name’s Matthew Hill. I’m here with Carol Ponton.
Carol Ponton: I’m Carol Ponton.
Matthew Hill: This is the second part in our four-part series on buddy statements. We talked about the importance of buddy statements in the prior one and how they can affect your claim and how crucial evidence they are.
  Today we want to talk about how to make a buddy statement. The critical things that need to be in the statement that your buddy, friend, family member, service member puts in there so that it is a competent statement.
Carol Ponton: And we see this because when we get veterans, they often have buddy statements from people who are no longer alive or no longer available. And that’s why we want to make sure you know it’s very important … When you think about a buddy statement, you need to start out with, “Why did I pick this person? How is it that he has anything to add?”
  So if it’s a person who was in the military with you, it’s very important to give his or her full name, what service they were in, if possible their service records, so that the VA, because they tend not to believe people, can verify that this person was where he said he was and had the opportunity to observe you, and therefore his statement is very credible.
Matthew Hill: Right. You want them to be able to observe you, or they happen to be in the same place or the same year. Something to where it puts them there. Their name, their unit, where they were stationed, their MOS, what they were doing, so that you give them … It’s the foundation. Those might not be directly related to your case, but those are the foundation for why they are able to make a statement.
Carol Ponton: And why should the VA believe this person? For instance, if it’s Thailand and they’re talking about the herbicides that were sprayed there, this person would have to show that … How can the government find out that he actually was in Thailand during a relevant time period, and therefore what he says is very important, okay?
Matthew Hill: Right. And to that, it’s also speaking to competence. And competence basically means that that person has the ability to talk about some issue. And they have the ability to do so because they have the background. They have the knowledge or understanding. And so in Thailand, there would be various degrees of that. You’d have someone who was there and eyewitnessed the actual spraying, understood how close he was or his unit was to the actual perimeter.
  And then you could have a different, more sophisticated level of competence. You could have somebody who was actually doing the spraying, and you could say, “This is what the barrel said on the stuff I was spraying.” So various levels of competence, but they need to establish that. Why can they say what they say? Were they there? Did they see it? Did they hear it? Did they talk to somebody about it?
Carol Ponton: Exactly. And what is their connection to you? Were they stationed with you? Did they come and replace you? Were they in the same unit that you were in? You need to let them know everything you can possibly think of to build up your case. This is the time to do it.
  And it’s so sad, because sometimes when we get the case, that person’s not there anymore and we can’t elaborate. We can’t make it better. So think about all the questions that you think somebody would ask if they’re trying to prove something.
Matthew Hill: And who was it that said, “Just the facts, ma’am.”
Carol Ponton: Nothing but the facts.
Matthew Hill: Nothing but the facts. Well that’s what you want here. You don’t want somebody making an argument saying, “Please give this guy benefits. He’s a really nice man. He deserves what he’s getting.” That doesn’t get you anywhere, and frankly it distracts from the value of that person’s statement. So you want that person to give the facts. “I was here. I knew him in service.”
Carol Ponton: “I actually saw this.”
Matthew Hill: Yeah.
Carol Ponton: “We lived in the same hooch. We worked in the same flight line.” Anything that’s very significant to prove your case.
Matthew Hill: And the value of this is tremendous. We spoke about this in the prior one, but if you get a competent statement from someone else that is critical to your case, the VA might dismiss it. If you’re in the regional office, this happens. But if you keep appealing, you get up to the BVA, they understand the legal implications of a competent statement. And they understand that they have to take it seriously. And if they don’t, then they can get appealed to the Veterans Court.
Carol Ponton: And for that reason, we see a lot of cases are won at the Board that are not won at the regional office because the Board gives this a lot of credibility. And they look at the VA and they said, “Why didn’t you pay any attention to it? Because this proves the case and we’re gonna award benefits.” So don’t stop at the regional office. Take those buddy statements all the way up.
Matthew Hill: Well thanks for watching. This is, as I said, the second part in a four-part series on buddy statements. The first was about the importance. This was about how to write one. And then next two will be how a buddy statement is important both in the service connection case and a rating case. Thank you.
Matthew Hill

Video Blog – Importance of Buddy Statements

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Matthew Hill: Hello, I’m Matthew Hill. This is the Hill and Ponton VA video blog, and I’m here with Carol Ponton.
Carol Ponton: Hello.
Matthew Hill: And today we’d like to talk to you about buddy statements, which we both consider to be a crucial piece of evidence, and, frankly, sometimes an overlooked piece of evidence that helped prove veterans’ claims.
  Carol, tell us about the importance of it.
Carol Ponton: Well, buddy statements are the way to prove something that you don’t have any other proof for. It can be that something happened in the service; that you were different when you came out of the service. It can be what your condition is now compared to how it was before you went in the service. It’s going to prove something that you may not have the evidence for otherwise, and it’s a chance for you to maybe develop evidence that isn’t there in the file already.
Matthew Hill: Yeah, and as she’s saying, there’s a lot of times where the VA holds the cards, and the VA holds the service medical records, or the current treatment records. This is a way to get evidence yourself from someone who knows the fact you’re trying to prove.
Carol Ponton: We have so many veterans that say “I was in the hospital for mental problems.” The records aren’t there, and they can’t do anything about it because, as you said, the VA is the keeper of the medical records, and they lose them.
  So this is the way to prove whatever the records that you have aren’t proving, and it’s invaluable. I can’t emphasize enough how much it’s important to consider is this a time for a buddy statement, and how many buddy statements should you get?
Matthew Hill: Right. A lot of times, they can be so strong, and the VA has trouble overcoming them and saying they’re not credible, instead of saying … You could just accept it. But they can be very strong for your case because basically, they’re reiterating your claim, your story, and if someone was there to see that, or if someone was there to experience that with you, or someone was there to observe before and after what happened, that’s evidence that the VA can’t just shake off.
Carol Ponton: It’s like filling in your claim. Instead of saying “I have a mental condition,” or “I hurt my back,” this is a way to really paint the picture not only for the regional office but for the board of appeals as well.
Matthew Hill: Also, stay tuned. We’re actually going to also talk about how to do a buddy statement, and then also what a buddy statement looks like in a claim for service connection, and separately what it looks like in a claim for increased rating.

 

Robert Rivera, Claims Advocate

Help Your Case with Better Details – Part II – Buddy Statement

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In the first part of this blog, we talked about you painting a vivid picture of the circumstances surrounding your claim with details. We talked about including the five “W’s”; what, where, when, why, and who. Well, the same holds true for the Buddy Statement.  A buddy statement is a written statement from an individual who has knowledge about the Veteran’s disease or injury. The person giving the statement can use the same VA Form 4138 for their statement in support of your claim. A buddy statement can be made by a fellow service member, relative, or friend. The key is to have someone that is familiar with your condition and how it affects your daily life. Someone that can move the reader with details that make your condition or the time of your injury clearly visible can be extremely influential. With regard to the buddy statement, the greater the separation of personal affiliation between you and the person writing the buddy statement the more value it will carry with the reader. This is because the reader places less bias in a statement when the writer has nothing to gain from making that statement. The factual undertones of a statement given by a fellow service member will carry more corroborating evidence than an emotional plea from a veteran’s spouse. In other words, it’s like having an eyewitness to the event versus someone who heard about what happened and saw the results of that event. Ideally, getting statements from more than one source gives the reader different perspectives and more evidence that leads to the same conclusion. .Buddy statements provide important information corroborating or backing up, the veteran’s claim. These statements can be extremely helpful in situations where records were lost, destroyed or never existed. As we did in part I of this blog, we will discuss the elements of a Buddy Statement required to produce a statement which supports a claim for direct service connection of a new claim. Statements meant to support an increased rating of a service-connected claim will be discussed in future blogs.

Buddy statements for service-connection claims should include content focused on the incident that happened in service causing the disability. Most of these statements will come from fellow servicemen. For example, for disabilities incurred or aggravated during combat, if service records do not show that the Veteran was involved in combat and the Veteran knows a fellow service member who witnessed his injury, a buddy statement can be written to corroborate the Veteran’s claim  Many veterans struggle to find fellow service members to corroborate incidents during service, especially if many years have passed since their service, but if you are able to find someone who is willing to give you a buddy statement to support your claim, again, the more detail the better. If you are unable to locate someone who remembers the incident during service, you may want to try talking to family members or friends who you made have told about the incident when it happened. For instance, if you sent a letter home to a relative or friend about your injury during service, they can write a statement about the details of your letter. Statements from fellow servicemen are also important in situations like corroborating a post-traumatic stress syndrome (PTSD) stressor or being stationed in an area the VA has recognized as exposed to Agent Orange. Moreover, in cases involving military sexual trauma (MST), where in most cases there is no witness, a buddy statement from someone you shared your ordeal with or has noticed a change in you following the crime, may be the one piece of evidence that sways a decision maker in your case. Ultimately, in spite of medical or service records, those of you who experienced life in service together are each other’s eyewitnesses.

Keep in mind when asking someone to write a buddy statement; it should always include the contact information for the “buddy” writing the statement including their full name, address, and phone number. The full name of the Veteran the statement is being written for should also be provided. The statement should contain the buddy’s perception of what they witnessed (the five “W’s”). The statement needs to be signed by the buddy. If it is not on the VA 4138 form, the statement must be notarized. This is because the VA wants the statement in a format where the person writing the statement is swearing that what they have written in their statement is the truth. Remember that in most cases, a buddy statement is corroborating your statement. Buddy Statements should be written in a style that is accurate, brief, and concise. So when you approach someone and ask, “Would you write me a short statement about everything you remember?” ask them to address the elements of who, what, when, where, and why, in as much detail as possible. Discuss your statement with your buddy and how you would like their statement to corroborate yours without actually writing it for them. A convincing buddy statement in support of your claim is a great tool to back your claim. It is important to go into as much detail as possible in order to make your buddy’s statement come to life for the reader.

Thank you for your service and taking the time to read this blog.

Matthew Hill

Video Blog – Common Mistakes – Attending the C&P Exams

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Matthew Hill: Hello, and welcome to the Hill & Ponton VA video blog. I’m Matthew Hill.
Carol Ponton: Carol Ponton.
Matthew Hill: And today we’d like to talk to you a little bit about … We’re talking about a series on big mistakes vets make, and problems that are presented in their claim, that interfere with them getting the benefits they deserve. Today, we just want to talk briefly on C&P exams, comp and pen exams.
Carol Ponton: Compensation and pension exams.
Matthew Hill: And essentially, these exams are issued by the VA. The VA has a duty to assist you to win your claim. If they feel that what’s missing, to prevent benefits, are either medical opinion about the disease being connected to service, or medical opinion about the rating, the severity of the disability, then they’re generally going to send you to C&P exam.
  We only see cases where there’s already been a denial, but the biggest-
Carol Ponton: So usually there’s been a compensation and pension exam.
Matthew Hill: I mean, that usually is the biggest reason for denial, right Carol?
Carol Ponton: Exactly. So what is a compensation and pension exam? The person that’s deciding your case looks at the evidence and says, “Okay, we’re missing something. Are we missing the service connected problem, or are we missing the diagnosis, and how bad your condition is?” They will set up a compensation and pension exam, to have you evaluated.
  Now, they are going to say, on their notes, exactly what they’re looking for. You don’t know, but if you call the people that have set this up, they will tell you it’s a PTSD exam, if that’s what you’re claiming, that it’s an exam for your back, maybe they’re going to do some testing on you, blood work, to see if you have diabetes. They will let you know, so you need to be prepared for that exam.
  If you’re going in for a PTSD, you should get … There’s a form that the VA has, and it lists problems that anybody who has PTSD has, nightmares, flashbacks, lack of trust, anger, and if you don’t have a problem in each one of those little categories, you don’t have PTSD, according to the VA, so you really need to figure out what are they looking for, because it’s not that our veterans don’t have it, it’s they usually talk about what’s bothering the most that day.
  They may have lots of nightmares, but they have an anger problem, and on the way to the VA exam, they got in a fight with somebody that was driving near them. You need to make sure what are they looking for, so that you give them all of those things.
Matthew Hill: I would say on that, if you know the exam you’re going in for, you get a buddy statement or two, people who live with you, or close friends, to just write what they observe in you. Not how great a guy you are and all this stuff, but, “Today, I see Fred. I see him wincing when he bends over. He has to sit down after walking up a flight of stairs-“
Carol Ponton: “I help him with his yard because he can’t do it anymore.”
Matthew Hill: And those are things you want to take with you. We always recommend that our veterans take somebody with them, a witness, a wife, or a child, or somebody. The majority of the time, they’re not going to let, as in 90% of the time they’re not going to let that person back into the exam room with them. However, if you have these buddy statements, and you can at least hand them to the person, I’d keep copies for myself but you have these buddy statements that you hand to them, the doctor should review that, hopefully, and have and understanding of how bad it is, but then also note that in their review.
Carol Ponton: But to be safe, you should turn that into the VA separately.
Matthew Hill: Yeah.
Carol Ponton: We also find that the VA will often give you a form to fill out, and you need to make sure that form is complete. If they’re talking about your back, talk about the pain going down your leg, or the fact that you’re incontinent, or the fact that that makes you depressed. This is your chance to put everything down, because often, veterans will go in, and they’re there 10 minutes or less, and then they end up seeing this huge compensation and pension report, goes on for pages, and they go, “Where did they get all this information?”
Matthew Hill: It makes it look like the doctor really sat down and took time with you, when you know he didn’t.
Carol Ponton: But a lot of times they just copied it off whatever the form was that you handed in, so if that’s the case, you want to make sure this form is complete. The other thing that I tell veterans is this is the one time somebody, a doctor from the VA, is going to see you, so if you’re going in, and most of the time, you’re at home in your pajamas, and you don’t shave, and you don’t get your hair cut, don’t dress up for this person. They want to know how are you really functioning in life, and if that’s the way you are-
Matthew Hill: It’s your chance to show them what your day-to-day existence is, and you don’t need to put makeup on that.
Carol Ponton: And that’s a big mistake that I see. The veterans, maybe the spouse, maybe the person that lives with them says, “Oh, you can’t go looking like that. You need to take a shower. You need to do this.” Well if you don’t usually do it, don’t do it. Let them see how this condition has affected you.
Matthew Hill: Well, this is our blog on C&P exams, and their importance, and how we see they can be messed up and veterans not get the benefits they deserve due to what happened there. Thank you for tuning in, and again, we have several other big mistakes we see that you should be able to find on this channel. Thanks.
Cassandra Crosby, Claims Advocate

Guide to Proving Service Connection of PTSD

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Service connection for an injury or illness seems easy to prove; medical records documenting that the injury or illness occurred or was first treated while in service is enough to show service connection. Some are easy such as falling off a ladder and connecting that with later back problems. However, some are much more difficult, especially when there may not be any treatment records at all. The most prevalent of these is PTSD.

Victims of PTSD often do not seek treatment

Because of stigma, denial, not knowing they have PTSD, or other issues, many service members do not seek out treatment for PTSD while they are in service or sometimes for years after discharge. PTSD is the third most prevalent disability claim in the VA system yet is probably the least treated.  Many veterans did not seek out mental health treatment in service due to the stigma and possibility of being discharged for mental instability. Often, if they were fortunate, they would seek help at a local community mental health agency or a private doctor whose records could be available to assist with filing their claim, showing in service treatment. However, this is not very often the case. Most often, service members go without treatment altogether.  Only about 50% of Veterans with PTSD seek treatment, and then only about 50% of those receive adequate treatment. When Veterans finally do seek services, it is often at a point where they have reached a very low point in their lives. Many have lost relationships, jobs, homes, and even their self-worth before they seek help. Some have been hospitalized, fallen victim to substance abuse, or have legal problems because of the symptoms of PTSD and how they manifest. Unfortunately, many also commit suicide before they can get help, or because they are not getting the help they need quick enough.

What Causes PTSD?

PTSD can be caused by many different issues and can manifest in very different ways for each individual. What may trigger PTSD symptoms in one person, may not cause any symptoms in another. The VA bases their PTSD definitions on the DSM-V Criteria. The criteria for PTSD are: whether the veteran was directly exposed to a traumatic event; if they witnessed a traumatic event; if they learned that a close friend or relative was exposed to a traumatic event (if involving death it must have been violent or accidental in nature); or repeated or extreme indirect exposure to aversive details of the event (such as first responders, medics, firemen, etc.).  There are also criteria for intrusion symptoms; avoidance, negative alterations in cognitions and mood; alterations in arousal and reactivity, duration, functional significance, and exclusion. When these areas are reviewed, a determination is then made if the Veteran meets the DSM-V criteria for PTSD.

Because everyone has different coping skills and reactions; someone who sees death and destruction on a daily basis serving as a medic in a war zone may meet no criteria for PTSD, yet someone who experiences a fire in their barracks during basic training may end up experiencing many criteria for PTSD. It doesn’t mean a person is strong or weak, only that their minds have reacted differently to different events and they may have different coping skills to deal with what they are exposed to.

Service Records v. Service Medical Records

One of the first things that the VA does when a Veteran files a claim for PTSD is request service medical records. If the Veteran has experienced a traumatic event that may have caused immediate injury or that the Veteran sought out medical or mental health treatment for, it would be present in their medical records. Also, since the onset of the Gulf War, pre- and post-deployment questionnaires address the questions of mental health issues as a course of record. However, again that stigma is present and someone who may not want to be medically discharged or sent back stateside may not seek treatment or tell the truth on forms in order to keep their job and duty station.

So, if there are no medical records, how can someone go about proving that the incident occurred in service? One way is be requesting that the VA review your Service Records as well as your medical records. By reviewing your service records, there may be what are called markers to PTSD or mental health issues such as sudden disciplinary issues, a sudden drop in performance review scores; a request for a change in duty station or different squad, company, or platoon; records of going AWOL; or other issues such as excessive drinking, dereliction of duty, insubordination, etc. Any types of behaviors that were not present before the incident but become prevalent after may be considered markers of a traumatic event.

Other forms of “Proof”

There are a few other ways to show that a traumatic event happened when you don’t have any “proof” of it. Stressor verification can be determined by:

  1. Buddy Statements – written statements from friends, other service members, or relatives who either witnessed the event, discussed it with you when it happened, or noticed a behavior change after the event.
  2. Help Program records – if you called any support groups, helplines, churches, or other programs that offered support and help, document it or try to get copies of your records with those agencies.
  3. Civilian reports such as police reports if the incident was reported to civilian authorities but not military authorities (for example, a car accident and the Veteran’s best friend is killed while he is home on leave);

A Veteran will also have to fill out a PTSD Stressor Statement form and attend a C&P Exam. There are tips on what to do to prepare for the C&P Exam here.

Getting Help

Getting help with filing your claim helps increase the chances of it getting approved. However, for those with PTSD, it can also relieve some of the stress that Veterans experience dealing with the claims process. If you need help filing your claim, please call your local Veteran’s Organization for assistance or an attorney if you have an initial denial. Professional help increases your chances of winning your claim by almost 25% and can greatly reduce the stress on you.

Most importantly, remember that no matter what happens with your claim, it is vital that you seek help to deal with your symptoms. PTSD is one of the leading causes of suicide among Veterans and seeking help will reduce the risk of suicide. If you are experiencing thoughts of harming yourself or others, please call 911 immediately. Other resources available for Veterans include:

  • 911 or go to the nearest emergency room;
  • Veterans Crisis Line – 1-800-273-8255 and press 1 or text 838255;
  • Wounded Warrior Project
  • The Soldier Project has a list of resources including homeless programs, financial assistance for medications, therapy programs, and support groups.
Matthew Hill

Video Blog – Common Mistakes – Understand the Goal of Your Claim

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Matthew Hill: Hello and welcome. I’m Matthew Hill with the Hill and Ponton Veteran’s VA Video Blog. I’m here with Carol Ponton, and today we’re continuing a series on big mistakes we see veterans make that really hurt their claim. The one I see a lot that’s kind of hard to understand sometimes is the veteran understanding what the goal is. With the VA benefits, to get VA compensation you got to show a bunch of different things. You got to show something happened in service, that there’s a current disability, that the two are connected, and then what the rating is and then what the effective date is.
We see, a lot of times, veterans coming to us with a denial, say PTSD. They bring us a rating decision they disagree with and they say, “I was denied. When I was in service I was in combat. I saw a lot of action. I had a good friend die.” They tell us just how horrible their experience was. My first response, and I think Carol will do this too, is, “Well, let’s focus on what’s going on here.” That, the VA finally admitted that this is related to service, but the issue now is compensation. They low-balled you on the rating.
Carol Ponton: They gave you a 10% rating.

 
Matthew Hill: Right. The only thing the rating entails is what’s going on now, how is it affecting you now.
Carol Ponton: Right.
Matthew Hill: In a way, it’s kind of moving the ball, in that I see it, the VA can get you to focus on what happened then versus what’s going on now, you’re not going to win the appropriate level of rating.
Carol Ponton: Right, because the issue is what’s going on now. I think with some of my veterans I do like to say, “Show some of the stressors so it’s clear how awful it was, but then we need to focus on right now. What’s happening to you right now?” I want to know from your wife or your significant other, how is this affecting you. I want to know from you. Do you sleep at night? Do you have nightmares? That’s what you need to focus on. That’s one of the biggest problems with PTSD is, most of the time the veterans don’t know what the issue is.
Matthew Hill: Right, and I guess, it’s kind of hard because if you’re fighting for service connection for this issue, whatever it is, you need to talk about what happened in service and you need to have records or buddy statements or statements of friends who knew you then to prove what was going on. Then you have to have a medical link between that and the current disability. Once you get that disability rated, once the VA finally admits, “Okay, this is related to service,” your whole focus needs to be on, “How do I show them how bad it is? My day to day life, how does this affect me?”
You just need to understand that when you’re filing that claim, most likely that’s a claim for an increase or an NOD off an original rating. You need to be thinking, “How is this affecting me and how can I show the VA how bad this is on my life?” We deal a lot with unemployability cases and 100% cases. A lot of times those veterans just, they have such a hard day to day life but they don’t realize it, they’re not focusing on it. They’re focusing on what happened in service, and when they do that they don’t give the VA the evidence they need to rate them at the VA.
Carol Ponton: That’s why a buddy statement, a wife, a special person that’s with you, family members, they see it and they can give us a very good picture. Then that helps us draw out from the veteran, “Tell me what’s going on.” A lot of veterans don’t want to talk about it. I don’t blame them, but this is the one time they need to talk about it in order to get the rating they’re entitled to.
Another area I see this in is, for instance, backs. I will have veterans who are clearly injured, have back injuries in the service, and the VA denies the service connection. The veteran is saying, “Look at my service medical records. They show I was clearly injured. Look it, I just had a third back operation. What’s wrong?” What’s wrong is, remember there are three things you need. Something happened in the service. It’s caused a problem that you have right now, and there’s a nexus, that means there’s a medical opinion that says what happened in the service is causing this problem. You need to focus on what’s missing.
Matthew Hill: Right. As Carol said is it, are they not saying it’s related to service? As she said, if that’s the case, is there evidence of something happening in service? Is there evidence of a current diagnosis? Where we see a lot of problems is, is there a medical opinion linking them? If you have that, and frankly the way to know if you have that if you’re filing a claim is, are they already paying you for it? If they’re already paying you for, we said PTSD 10% or back at 20%, well then the issue now is, how much does it affect you now? That’s where the focus needs to be.
Carol Ponton: Right. I think it’s always worthwhile to have buddy statements, no matter what your problem is. It’s important to have medical evidence backing it up. A psychiatrist, an orthopedic surgeon, whoever is treating you.
Matthew Hill: Well thank you for tuning in Hill and Ponton Video Blog. Again, this was a part of our series of big mistakes the vets make that hurt their claim.
Cassandra Crosby, Claims Advocate

Using Lay Evidence to Support a Disability Claim

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Lay evidence is evidence that is provided by someone who is not considered an expert in the matter at hand. Specifically it is evidence that does not require to be presented by someone with specialized education, training or experience but can provided by someone who has knowledge of facts or circumstances and that can be observed and described by a lay person.

Most of us use lay evidence everyday. We can see that Joe came to work late or that Anna made her bed and can relay those facts to other people without the help of experts for proof or verification. There are many forms of lay evidence that the VA allows in disability compensation claims, so we will explore them and how they can be used.

Buddy Statements

Buddy statements are statements that can prove factual matters by relating first hand knowledge. These statements do not always have to come from people that served with the Veteran. A buddy statement can be from a parent who witnessed a behavior change in their child, a wife who saw her husband in severe pain or unable to do certain tasks after an injury, or a service member who witnessed a fall or head trauma that was never recorded.  Buddy statements are acceptable by the VA and van be used to prove that events happened when there are no or limited records of them. If a Veteran went to sick call because he got hit on the head and his service medical records are missing, but his crewmate remembers taking him and why, then the buddy statement can replace those missing medical records as evidence.

Lay Evidence of Medical Conditions

This gets a little more complicated.  All medical diagnoses must be provided up by expertsCC - lay evidence 1 such as doctors or psychiatrists. However, a lot of medical information can be used as evidence if it is presented by a person within their scope of knowledge and training. For example, anyone can say that the person was unconscious, that is something that almost any person is able to determine. Most of us, without any specialized training can also determine is someone is bleeding, has a broken bone, or is exhibiting certain symptoms.  Relating what we observe is well within everyone’s scope of knowledge and can be used as lay evidence in all claims.

However, someone with specialized training could provide certain expert evidence such as an EMT or a firefighter with paramedic training. They could give statements within the scope of their training such as that someone was in cardiac arrest or having a respiratory event. They could not diagnose, but they could give more detail than the average lay person.

Examples of what you can and cannot report with lay evidence are:

Can not report with lay evidence: Can report with lay evidence:
Cancer Psychiatric symptoms
Alzheimer’s Disease Memory problems
Disc herniation Skin disorders such as rashes
Bronchial Asthma Asthma symptoms
Parkinson’s Disease Tinnitus


When You Need Expert Evidence

CC - lay evidence 2An expert must give testimony or evidence when the evidence is something that only a person with special skills or knowledge can attest to. Joe was able to tell that Mike couldn’t walk any better after 6 weeks of physical therapy, but only the doctor could say that it was because Mike had herniated discs in his back and physical therapy was not helping him. Only someone specially trained in that field could give that specific type of evidence.  This gets a little tricky when it comes to diagnosing medical conditions as well.

For example, Susan works in a Community Mental Health Agency as a Psychiatric Assistant. Her husband is exhibiting symptoms that are exactly like the people who come in and are diagnosed with PTSD. Even though she is knowledgeable enough to recognize this as PTSD, she is not licensed to diagnose it therefore could not give lay testimony that her husband has PTSD. She can, however, give lay testimony concerning what symptoms she has observed him exhibiting.

Knowing When to Use What

When Veterans use lay evidence in their claim, the regional office has to make determinations on several different issues to determine whether the lay evidence is credible.

  1. It must determine if the law evidence is competent and provides an adequate explanation of determination (Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007)
  2. It must weigh the lay evidence against other evidence to make a determination of it value on the claim (Buchanan v. Nicholson, 451 F.3d 1331, 1334-1337 Fed. Cir. 2006)
  3. It must make a credibility determination as to whether the evidence supports a finding of service connection and a continuity of symptomology (Barr v. Nicholson, 21. Vet App. 303 2007)

The bottom line of this is that it is better to provide more evidence than less. If you are unsure if the lay evidence is admissible, either confer with your representative or attorney, or submit it and have the RO determine its admissibility based on the above criteria.

Don’t Give Up!

CC - lay evidence 3Never give up on a claim, even if you only have lay evidence to support it. Chances are there is more evidence out there; it just takes some digging and maybe some professional assistance to find it.  Many agencies have professionals that know how to dig up those old deck logs or medical records and their staff is excellent at finding those brief statements in records that can back up a diagnosis or sometimes find new claims that Veterans didn’t know they were entitled to. Again, the bottom line is do not give up. Ask questions, get help, keep trying. Sometimes that lay statement can make the difference between awarded or denied.