|Matthew Hill:||Hello and welcome to another Hill & Ponton Veterans’ Video Blog. I’m Matthew Hill here with-|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||… and today we’d like to talk to you about medical evidence and how it factors into your claim, what you need to be thinking about your outside evidence and what you can expect the VA to do and what you should be doing.|
|Carol Ponton:||One of the things that I see over the years is that the VA will ask the veterans, “Who are your treating medical sources?” The VA will write to them, and the veteran thinks the VA has obtained them but they haven’t, because the letter says is, “Dear Doctor, This veteran is applying for disability benefits and we would like a copy of your records. We will not pay you any money for doing this.” So what happens is most of the doctors don’t send in the medical records. The veteran, meanwhile, thinks the records are in there, but they’re not.|
|Matthew Hill:||Well, the veteran has a good faith reason to think that they’re in there because the VA under a law has what’s called The Duty to Assist, which means the VA must assist the veteran to get records that would help win his case. So once the veteran identifies who the doctor is or where the evidence is, then, in theory, the VA should obtain that. But as Carol just said, they say, “Please send it but we’re not going to pay you any money.” And unfortunately, there are very few doctor’s offices that are going to do that.|
|Carol Ponton:||Very few doctor’s offices, and the long term sadness that I feel about this is I see over the years veterans have applied, they’ve told the VA exactly who their doctors are, the VA sent a letter and said, “We’re not going to pay.” The doctors don’t send the letters in, and now twenty years later, those records don’t exist anymore. You can’t get them.|
|The VA records they can get, but private medical doctors … I think all of our veterans should go out and get the records and submit them themselves. And keep a copy.|
|Matthew Hill:||Yeah, and again, the VA has a Duty to Assist, but at the end of the day it’s your claim and you need to do what you need to do to win the claim. At this point, they should be helping you do this, but the best thing to do is assure that the records are in there. Because that’s the thing. The VA’s not going to send you a letter saying, “Oh, we got this.” They’re just going to-|
|Carol Ponton:||And they’re not going to say, “We didn’t get them,” either.|
|Matthew Hill:||Right. Right. They’re not going to let you know either way. The only way you would really know from a document from the VA would be when you get the decision, and on the decision they list the evidence they used. So you’d want to double check there that it’s in there or not. But otherwise, short of ordering the whole C-file, you have no idea. On the other hand if you actually send it to them, you have a better idea that it got there.|
|Carol Ponton:||Well, you know it got there. You don’t know it got in your file.|
|Matthew Hill:||Oh, that’s true too.|
|Carol Ponton:||So I would send it certified mail. I would keep a copy of it, and then when you get your decision, if you see that these records are not listed, then you resubmit those records, and you say, “Previously I submitted them. Here’s a copy of my certified mail. Please consider this in my case.”|
|Matthew Hill:||For this case, yeah. It’s just really important not to sit back and just submit your claim and just think it will all go through. I mean, even though something happened in service, you’ve got the current problem now and it seems obvious to you, it might be, but then again it might not, and it might not from their vantage point, and you might get denied. So it’s just something to be careful about.|
|Matthew Hill:||Well, thank you so much for joining us here on the Hill and Ponton Video Blog. We look forward to seeing you soon.|
Veterans who were exposed to Agent Orange who develop a condition that is not on the VA’s list of diseases that are presumptively caused by Agent Orange have a difficult time convincing the VA that their condition resulted from Agent Orange exposure. When a Vietnam veteran has a condition that is not recognized as a presumptive condition, the veteran may be able to get the VA to grant a disability compensation claim if the veteran submits (1) a doctor’s statement that the veteran currently suffers from the disease or its residuals, and (2) an opinion from a medical expert stating that it is at least as likely as not that Agent Orange caused the disease or disability.
If a veteran submits the above evidence, the VA is required to weigh and consider the total analysis provided by the medical expert. The expert’s opinion should include discussion on the following topics:
- A discussion on relevant medical studies
- The time between Agent Orange exposure and the onset of the disease
- The veteran’s other risk factors for developing the disease. This would include a discussion of the veteran’s genetic disposition/family history.
However, if the medical expert bases their opinion SOLELY on a finding that there is a statistical correlation between Agent Orange exposure and the disease, the VA can reject their medical opinion.
If a veteran submits medical evidence that shows their disease is related to Agent Orange exposure and that disease is not on the VA’s list of Agent Orange related diseases, then the VA’s duty to assist will probably be triggered. The VA will likely be required to provide the veteran with a medical opinion addressing whether the disease is at least as likely as not related to the veteran’s service. The examiner providing this medical opinion should clearly consider direct service connection and support their conclusion with adequate reasoning. An example of an inadequate opinion would be if the examiner based their opinion solely upon the fact that the disability is not on the list of diseases the VA has presumptively linked to Agent Orange exposure.
If a veteran is unsuccessful in getting the VA to link their condition to Agent Orange exposure, they may still qualify for service connection under the traditional rules that have nothing to do with Agent Orange exposure. Also, if the veteran ultimately isn’t able to prove service connection under any of the VA’s rules, they may still want to file a claim. This would be especially true if the veteran’s condition is among those that have a greater chance of being recognized by the VA in the future as being associated with Agent Orange exposure. If the VA adds the disease to the list of those that are presumptively service connected and then grants a claim, the veteran would have a better chance at receiving retroactive benefits based on the original application for benefits. The following is a list of the diseases most likely to be recognized by the VA in the future as being associated with exposure to Agent Orange:
|Birth defects (other than spina bifida) in children of male Vietnam veterans|
|Bone and joint cancer|
|Cancers of reproductive organs|
|Cancers of the brain and nervous system|
|Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), and nasal cavity|
|Cancers of the pleura, mediastinum, and other sites within the respiratory system and intrathoracic organs|
|Childhood cancer in children of Vietnam veterans|
|Chronic peripheral nervous system disorders|
|Disruption of thyroid homeostasis|
|Endocrine cancers (including thyroid and thymus)|
|Gastrointestinal, metabolic, and digestive disorders|
|Hepatobiliary cancers (liver, gallbladder and bile ducts)|
|Immune system disorders (immune suppression, allergy, and autoimmunity)|
|Leukemia (other than chronic B-cell leukemias)|
|Low birth weight in children of Vietnam veterans|
|Neonatal or infant death and stillbirth of children of Vietnam veterans|
|Neurobehavioral disorders (cognitive and neuropsychiatric)|
|Skin disorders (melanoma, basal cell, and squamous cell)|
|Spontaneous abortion in female Vietnam veterans|
|Urinary bladder cancer|
Remember, the above list is not exhaustive, and the conditions are not guaranteed to be added to the VA’s Agent Orange presumptive list. The conditions included are based on studies conducted by the Institute of Medicine of the National Academies (IOM), a group of private, nonprofit institutions that provide objective analysis to federal agencies such as the VA. The IOM conducts independent reviews on the health effects of Agent Orange exposure, and updates and reviews Agent Orange research every two years. As a result, new diseases and illnesses are constantly being added to the VA’s presumption list. Under the Agent Orange Act of 1991, the VA has to base a determination to add diseases to the Agent Orange presumption list on the reports made by the IOM.
Upon reading a VA’s rating decision, the veteran may feel like they have lost the battle. However, these decisions often contain many errors that a veteran can bring up on appeal. In other words, the errors made by the VA in a rating decision may mean the battle isn’t really over.
Pursuant to the duty to notify, the VA is required to tell a veteran what evidence is necessary to prove their claim, but sometimes the VA fails to provide this required notice. The notification requirement applies to all claims that were pending on, or filed after November 9, 2000. If a veteran did not receive the required notification, they may be able to appeal an unfavorable decision. However, in order to do so, the veteran will have to show that the VA’s failure to provide notification harmed their case. For example, the veteran will have to show that they would have provided evidence that helps their claim had they known this evidence was needed.
Similarly, if the VA did not follow their duty to assist, a veteran may be able to appeal their decision. If a veteran has done their job of identifying records that support their claim to the VA, then the VA must help the veteran get those records. A veteran must provide enough information about when and where they were treated that would reasonably allow the VA to locate the records. Also, pursuant to the VA’s duty to assist, they may have to provide the veteran with a medical exam or medical opinion. Failure to do so is an error that can be appealed. The VA is required to provide an exam when there isn’t enough medical evidence in the veteran’s file, but there is: evidence the veteran has a current disability, evidence that the veteran experienced an in service event, and evidence that this in service event might have caused the current disability. Another related error is if the VA did not provide an acceptable medical exam. To be acceptable, the exam must be made by a doctor that is knowledgeable in the type of disability making up the veteran’s claim. Also, the doctor must explain their reasoning in detail about whether the disability is linked to service.
Lastly, a veteran with a claim in front of the Board of Veterans Appeals (BVA) may need an attorney to make sure the BVA properly addressed medical or lay evidence in their claim. The BVA is required to include a discussion of the facts of a veteran’s claim, and also include a discussion about the law that the decision is based on. Failure to do so, may be a basis for appeal.
The VA benefits claims system is unique because it is supposed to be a “non-adversarial” process. In theory, this means that the VA is required to work with you, not against you. Unfortunately, this is not always the case. The VA is required to notify a veteran of the information that is needed in order to obtain the benefits requested. This called the VA’s duty to notify. Also, the VA is required to obtain information, and evidence that would support a veteran’s claim such as service records, service medical records, etc. This is called the VA’s duty to assist. The purpose of these duties is to make it easier on the veteran claiming benefits to gather all of the necessary evidence for a successful claim.
Duty to Notify: The VA is required to inform a veteran claiming disability benefits of any information and evidence that needs to be provided in order to be successful with that claim. This means the VA must explain what evidence they require you to obtain on your own, and likewise, what evidence the VA will obtain on their own. If the VA determines that a claim is not complete enough for to be processed, they then have a duty to notify you what is needed in order for that claim to become complete. On the other hand, if the VA determines that a claim is complete enough to process, they then must notify you of what information would be helpful to supporting your claim. For example, if a veteran told his mother during service that he had injured his back, the VA should notify the veteran that a statement from his mother about that conversation would be helpful in substantiating his claim.
Duty to Assist: Once the Regional Office (RO) has received your claim and determines that your claim is reasonable, they then must help you obtain evidence that is needed to support your claim. The VA must make reasonable efforts to obtain military service records without you having to request them to do so. Also, the VA must assist you in obtaining records from private doctors or hospitals upon your request. However, it is important to know that should the VA determine evidence doesn’t exist, they have no duty to continue trying to obtain it. That is why it is still important for the veteran to work with their representative to gather all medical records, reports, statements, etc. that would help substantiate their claim; you should never rely solely on the VA to develop evidence needed to substantiate your claim.
There are many steps in a VA disability claim, the first of which is to actually file the claim. For purposes of this blog post, I will discuss arguably the most important step, and that is gathering and submitting as much evidence as possible in support of the claim. What kind of evidence? Let me elaborate. The “crème de la crème” for disability compensation evidence is a veteran’s Service Medical record (SMR). The VA scrutinizes for documentation of and gives significant attention and weight to the following:
- An event that occurred that had an impact on a veteran’s health
- The circumstances surrounding the event
- Subsequent treatment records of how the injury or illness was addressed at the time
- Follow-up care or treatment
Other evidence given great attention by the VA are:
- Historical records of a veteran’s unit engaging in combat or other dangerous operations
- Awards such as the Purple Heart medal, or other commendations for meritorious action.
- Buddy statements
Buddy letters are statements from friends and/or family that may be used if there is little documentation of critical events. They may or may not be helpful, depending on the credibility of the person making the statement. If the person who writes the statement was an eyewitness to an event and was an officer with leadership responsibility, the statement could be given a great deal of weight. Statements by spouses, friends, family, or others without direct knowledge of the alleged event maybe not be seen as credible and, therefore, ignored.
So where to begin. The VA has a “duty to assist” the veteran in gathering evidence. A savvy veteran will simply ignore this and act like there were no such requirements. The “duty to assist” by the VA does not guarantee that any extra effort will be made. An advocate is a veteran’s best friend when it comes to the hunting and gathering of evidence due to the numerous pitfalls of releasing confidential health records. Many providers now charge for copies of medical records, and also have 3rd party vendors to control their records releases. This can be a major road block in the claims process. Often times, military records are lost or misplaced. Getting copies of all medical and service records before leaving military service is in the veteran’s best interest. If this is not possible, the NPRC (National Personnel Records Center) in St. Louis is a great place to start. This is the repository for most military records. If the records aren’t there, they will help a veteran find other ways to locate them.
After gathering the evidence in support of a claim, the next most important aspect is how the evidence is communicated to the VA. Giving this information to the local VA Regional Office is of utmost importance. Ask any veteran who has dealt with the VA, and more often than not, they will say because of a lost piece of paper, a denial was issued. The bottom line is this; spending a little extra time in obtaining all the necessary evidence ahead of time will go a long way in helping to ensure a successful outcome a claim.
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