Disability Claims and Lay Evidence: It Works

October 30, 2011 | Benjamin Krause

There is a longstanding debate about personal statements in disability claims. I was personally shocked to learn that some Veteran Service Officers discourage veterans from writing personal statements for the disability claims. That seemed like horrible advice to give veterans. How else can you get your story out about your disability without telling it?

While a layperson statement is not always going to carry the day, the VA has been forced to consider them as evidence in some situations.

According to an article written by attorney Chris Attig, there are three instances where the VA should consider the statement:

1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer:

(2) the lay person is reporting a contemporaneous medical diagnosis, or

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)

In addition, Attig goes on to point out that “a Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.”

Here’s what this means for you.

When you are filing a disability claim, its important to research the condition your currently have, first. Then, find the appropriate regulation that the VA follows in assigning disability. Lastly, go through your medical records to see what you were diagnosed with when in-service. Once you get all this information gathered, craft your letter.

Remember, in order to get a service-connection the condition must be a current problem. Generally, it must also have occurred or been aggravated while on active-duty.

It is important to use the right key words and to weave the story together using them. This will help the VA evaluator understand the “continuity of symptomology.”

 

 

About Benjamin Krause

Benjamin Krause is a Veterans Benefits Attorney and journalist who investigates problems veterans face with the Dept. of Veterans Affairs. He regularly reports on veterans' benefits news and analysis on the website DisabledVeterans.org.

Comments

  1. davadvocate says:

    I had to write personal "Statements for Reconsideration" and not a NOD to point out where they went wrong and it worked. They gave me less than I deserved, but I am thankful for there are many who got less. The VA is not blind or incompetent. They know what you deserve based on the little clues in the contents of what you submit, just like a skilled craftsman that can spot a problem a mile away. If they can hold you off for a year or two, that's what they call "budgeting smartly". Despite our injuries, we are treated less dignified than our enemies who we so bravely fought. Thank's.

    • so true so true all vets get together and get the f uckers out of congres nowstay locked and loaded joe maguire U.S.M.C. PS GIVE US OUR BENNFITS

  2. davadvocate says:

    The VA's budget went to DoD. The appropriations went to fill the gap on DoD's budget. There's new hardware on the picture and very expensive ones. To build up U.S. Navy, new Subs and ships for the War of 2012, to fund Karzai's shortcoming, various reconstruction projects and to manage the "domino effect" that stops in Iran. It was a cold war strategy. How do you put two oppossing views together as one? I hope our Democrat Cmdr-in-Chief figures out that he is not in the driver's seat.

    • Even if he were in the drivers seat I don't think he would understand how to put it in gear.

      • davadvocate says:

        The real issue here is not questioning any war, but to protest Senator McCain’s influence over our President’s decision. I don’t follow orders from McCain. We are not to question the reason we are at war. We are directed by our President and we will always support our Cmdr-in-Chief when we are ordered and we do it with unquestionable loyalty and commitment. That’s what we do according to our Constitution. What is disturbing is that the Republican Ranking member for the Senate Armed Services Committee placed our Boss in a position that obligates him to react according to a crisis that was planned long ago. That changes the entire priority of our President. Our President needs to get the Senator out of the picture before those key players get us deeper into the unknown. Our boss needs to recognize that we are there for him and for those who influences him. I wish I could complete the picture by having more room to explain. Thanks anyway.

        • davadvocate says:

          In addition: I don’t mind going to war forever because “we chose our faith”, but let’s take a little time to review our Nation’s financial status so that we can allocate some of that money towards those of us who’s proven leadership paved the way for our replacements. It’s a vicious cycle for when our replacements return “broken human beings”, with no soul, no spirits, dazed and confused, then we have a problem. This is just one, but many other injuries, big or small that needs to be attended. This will become one of the biggest problems that will overwhelm this nation within the next year and will peak in two years. “We are not different from any American, but we are different by virtue of “circumstance”. We don’t have it gravy. Those who say otherwise have no clue of who we are, and what we have become.

      • davadvocate says:

        The real issue here is not questioning any war, but to protest Senator McCain’s influence over our President’s decision. I don’t follow orders from McCain. We are not to question the reason we are at war. We are directed by our President and we will always support our Cmdr-in-Chief when we are ordered and we do it with unquestionable loyalty and commitment. That’s what we do according to our Constitution. What is disturbing is that the Republican Ranking member for the Senate Armed Services Committee placed our Boss in a position that obligates him to react according to a crisis that was planned long ago. That changes the entire priority of our President. Our President needs to get the Senator out of the picture before those key players get us deeper into the unknown. Our boss needs to recognize that we are there for him and not for those who influences him. I wish I could complete the picture by having more room to explain. Thanks anyway.

  3. Alex Guzman says:

    Was wondering what are trhe new standards on medical retire from active duty?

  4. alex Guzman says:

    I am a veteran with knee issues and other things I served for 10 yrs active duty and 2 yrs reserved but did not claim disability because I got out in 2004 and many soldiers were coming back from war, with worse problems. I was wondering if I can still apply for disability because my knee issues have gotten worse with time, and other issues. How long will the process take with the VA?

    • davadvocate says:

      ALEX – it's good to hear another vet who puts others first before himself. This is an important trait we all have in common. It shows how we care for each other. Your situation is not uncommon. I'm familiar with cases like yours. I know how you feel about other vets, but don't worry about them for they will be cared for through our network. I suggest that you take care of your issues first. Get access to your medical records and keep them in order and secure. As a general statement, everyone needs to be evaluated fairly to determine a valid SCD. Based on your history, you have a claim. I just know. What needs to happen is to get started. Get your mind together. Having a copy of your medical record is half the battle. That's significant. Please inform me if you have your medical records so I can guide and direct you step by step. The articles by Mr. Krause on this site will help you significantly if you take your time. I've learned from many that despite provided instructions, most can't even lift a toothbrush, or shave. Please let me know. Hang in there.

      • Never give up, I separated in 64. Had to sign a medical waiver to get out. Applied for benefits and was told that because I signed that waiver, I could not collect any benefits. Fast forward 40 years and a visit to the DAV office. Filed claims and was awarded 30% disability within 3 months.

    • Alex, you are a true American Hero. The Disabled American Veterans have Veteran Service Officers who will be proud to help you fill in the paperwork needed to submit your claim to the VA. I have personally gone through this process and yes it can be slow, but our VA has improved drastically over the years and will stand by you as they do me and other veterans. The DAV is an outstanding organization who is all about helping us. Please contact them and they will help you.

    • I have fought the VA for some 10 plus yrs. They started (without an
      attorney representing me) at ZERO percentage. Now, after hiring an attorney and 2 yrs later, the law firm correctly got me to 100%. . .

      DO NOT FIGHT THEM ALONE. . .you won't win your case

      Call me (623) 266-7827

    • certainly. you can still apply if you established service connection while in the military.

  5. I am A vietnam vet who served his country. I have PTSD and it took a long time for me to get benefits. I look forward to this 3.6%

  6. I recently won an appeal from DVA 29 Sept. Now it has gone back to VA Phila. As of today I have not heard anything from the VA. How long does it take for them to figure out backpay to 2006, and recognize the 2 claims that the DVA approved

  7. I have a rating of 50%, but my conditions are getting worse. Especially my migraine headaches and my hip. Should I go back for a percentage increase?

  8. Joe Gallagher says:

    I have sleep apnea due to a deviated septum. On a training exercise in basic training,I was kicked in the nose and was sent to the infirmary. They taped my nose and put me on light duty for three days (KP). When I submitted for a service-connected disability, they denied my request, saying there was no record of a broken nose. This happened back in 1964 while in basic training at Fort Polk, Louisiana. I don't know what else I can do, I know what happened and if they lost my records or there was no record of it to start with, what should I do

    • try to find someone in your basic traing and have them write you a buddy statement it might help, The va law says that you can prove you claim other than S.M.R. ED.

    • Joe, I am going through the same type of problem. I smashed my nose at the Air Force academy during a blizzard back in 67. I filed for the problem and a couple others about 4 years ago. They denied the claim for the nose, because I used the word broke, when in their records, they used something different. I just left the comp. doc an hour ago and he said it would be considered a deviated septum caused by the accident back then. I sure hopes this works. Wording seems to be everything. my primary care doc had put the deviated septum on record in 09, but didn't state that he figured it happened when I smashed my nose. He told me that it probaly happened then but didn't write it into the record. Good Luck to you.

  9. Veterans who served less than 20 years or have less than 50 percent disability and have their VA compensation subtracted dollar for dollar from their service retirement.

    There are currently several bills in both the House and Senate to repeal the offset of VA compensation and service disability pay:

    H.R. 333 Disabled Veterans Tax Termination Act
    H.R. 1979 To amend title 10, United States Code, to expand eligibility for
    concurrent receipt of military…
    … H.R. 303 Retired Pay Restoration Act
    H.R. 186 To amend title 10, United States Code, to expand the eligibility for
    concurrent receipt of…
    S. 344 Retired Pay Restoration Act of 2011

    These bills are tied up in commitee and may never get to the floor for a vote due to funding or other reasons. They should be funded from the VA budget.

    Write your congressmen and women and tell them enough is enough!

    We deserve better!

    Let's put ALL veterans on an even playing field!
    http://www.facebook.com/?sk=welcome#!/pages/Chapt

    • ALL military, both active duty and veterans, retired or not, should support their brothers and sisters in uniform. Even if you are not currently affected by the rules of compensation and disability, you may have that in your future. If we continue to ignore the fact that our benefits are being taken away, it will get increasingly worse. AT LEAST….. send your representatives an e-mail and tell them to support us by passing these bills or they will not be getting your vote at election time. Pass the word.

  10. I am a 100% Disabled Vet and a former inspector for the Surgeon General of the 7th Medical Command in Europe. The VA has been withholding information and delaying thousands of veterans disability claims stating that they cant find your medical records. Your outpatient (sick call records) are kept with your 201 file in St. Louis but the thing that they won't tell you is that your inpatient records are kept at the National Archives and can be retrieved with a single phone call. They delayed my application for 25 months saying they could not find my medical records. When I called the National Archives, I had my records in less than 30 seconds. These are the records you need to prove your claim. Don't let the VA get away with this and tell 10 people to tell 10 people to tell 10 people so the word gets out to all vets that this is how to get your records for your claim. I presented that information to Senator Testor (Veterans Affairs Committee Member) during a meeting with about 400 veterans present and you would have thought the sky was falling. The VA reps at the meeting were really pissed that they had been outed for the slackers that they are.

    • Susan Fruscella says:

      I am a veteran and I have PTSD from the Army in 1975. They denied me disability 3 times now how can I retrieve my records. I am looking for my records from when I was in the military in Ft. Huachuca, Az. I need my medical and my active duty records. Any information would help me… Thank you and God Bless

    • bountyfull says:

      I tried sending a letter requesting my VA medical records each year for 6 years.
      The first 3 years they responded with "we are trying to locate your records". The last 3 years they responded with "we cannot locate your records". Please send me the number you used to contact the National Archives. Thanks! bountyfull@charter.net

    • Van Dyke, C says:

      Do you happen to have the number??????

  11. hey guys look ive serve 26 yrs 13 active duty and 13 reserves.my last year ive sevre in iraq,got hit buy a IED and mentaly that shit miss me up but i was a gunner too..did one year out there luckly i was never hit. But mentaly its there guys and when i retired from the military all they gave me was 20% disability 10%for pstd &10%for tendinites..but thats all they gave me and its a bitch tryin to get more..this government sucks after all the shit we do for this county..weres our jobs at ..been unemployed since11/2009

  12. I service in the amry at fort brag n.c from 1982 to 1984 i went on training at camplejune and bath in that water and drink it to but now i need someone that was in the 173 fa b. batty to wright me statment of claim. afther 28 year i hope you are out their Top 1st..i gave v.a the name of the 18 air bone unit i think v.a can fineout before i can. it to bad i didnt stay in touch. i was stay at four more base since than'.

  13. I am a spouse of a deceased retired USAF T/Sgt. I submitted a DIC claim 8 years ago and they have denied it based on the fact that 19 years of 23 years of his medical records are missing. His death was lung cancer. He spent 2 years if Thailand working on airplanes in and out of Viet Niam. He had submitted a disability claim two years prior to his death and one year after that claim was submitted he was told he had lung cancer and the V A rep in San Diego told him to add Agent Orange to his original claim, which he did. When he expired the next year the original claim was closed. I was advised by the USAF Retired counselor to submit the DIC claim and it has been denied year after year. I will not give up.

    • Hang in there, Rose. I'm also a spouse of a deceased veteran who submitted a DIC claim last year, 2011, that has been denied. Now, I'm asking for a hearing and will file an appeal with the BVA. My husband died of Chonic lymphocytic leukemia, and he tried to prove he was actually flying into Vietnam from Thailand also. Now, I'm substituting for him since his case was on appeal when he passed. I'll continue to fight as long as I can.

    • Van Dyke, C says:

      good for you…………..the fustration just beat me down! My husband not only had lung cancer but colon & liver! You have to prove it all……..He was in VN in 1976 – 19777.

    • D's friend says:

      I know a woman who filed a DIC claim because her husband was in a similar situation, and she won. Her husband worked on airplanes replacing brakes & gaskets, which had asbestos in them; and asbestos is a known carcinogen. He also worked on fuel lines and brake hydraulics. She submitted an article linking jet fuel exposure to lung cancer. She included pictures of jet fuel dripping as it was being loaded into planes, standing along the flight line, etc. (His "shack" was right on the flight line.) She also included the CHECO report showing herbicides were used and stored on Thai air bases. She even included the second-hand smoke from fellow soldiers. (Hubby was a nonsmoker.) She then asked them to pick which one they felt caused her husband's lung cancer and grant her DIC benefits. They picked the jet fuel.

  14. ECharles says:

    I am a vet that served in Desert Storm in the National Guard back in 1990. I received an injection in my hip for deployment purpose and to this date I am still having medical issues as a result of this injection. I went to sick call for this issue but they only gave me pain pill and I return to work. When I filled for Disability for this and other problems I was denied twice. My claim is now at BVA in Washington and they stated that their review for claims are behind three years. The problem with the leg is getting worse as I wait for the final review. Any suggestion.

    • I had GG shot in lower back/hip also predeployment Nov 90 and have had leg numbness and back pain ever since – I've not heard of anyone else with same issue – I'm seeking for PTSD but maybe I should seek for that too??

  15. I got nothing. They told me to go home they would call me for my next appointment. I never got that letter or call. Now my lower back pain is now oa.

  16. Maria Toro says:

    My father served 29 years in the service and two tours in Vietnam and one in Korea where he lost his brother two weeks after arriving. He has been denied for Agent Orange even though he has diabetes 2 and Protrate problems. I am so frustrated seeing him go thru this. I am helping him get what he righty deserves. The VA should be ashamed of themselves for not assisting all those who served. This is a tragedy.

    • Van Dyke, C. says:

      AMEN! It seems that only those that are willing to go through years of dealing with the VA win! I gave up……………..

    • Bob Boushley says:

      Sorry to hear what your having to go through with Agent Orange Issues to>
      I'm going through similar issues as a Jet Engine Mechanic. Can't put all
      the blame on VA Admin. this has become a political issue do to The DOD
      whom get there instructions from Congress, Senate, and you know who!
      Jet Fuel, solvents, lubricates, are made with toxic chemicals that end up
      in land and water. Benzene as one example can cause Cancer. I met with
      a toxicologist that confirmed that. I'm 61 and last June 2013 I went Online
      and my eyes were opened to how we are health is viewed through our
      own government. Not once, in service or out have I been notified the
      what I work around everyday was toxic, please be careful, take some
      precautions, hey here's some protective boots, some gloves, and
      Some Personal Protective Equipment(PPE) is now thought in any mechanic
      originated course know and if not it should be. We need to be advise so
      we as a human being can at least protect our selves or we, our love ones
      will go through HELL ON Earth. Talk to us You ___ _______!!!!!!!

      • Bob Boushley says:

        One other thing I found out yesterday. There are VA Groups that are fighting for our constitutional Rights. Come on make some noise Brothers.
        We volunteered at a time when our country need us.
        Why should we have to feel guilty or less of a person when we want to at the very least be able to know what we were dealing with so we your
        servicemen of our Country has an option to take the necessary precautious to protect ourselves and now we have to be humiliated to have to go through this as long we live. Whoever are making our god give right to protect our own bodies & our Constitutional Rights.
        Only one way to look at this is instead of signing up for 4 yours that
        day at 18 years old, not even a legal adult. In fact I gave them my whole
        life that I would like to give back to those that made the decisions for me.
        No mater what they say they cannot and should not hold back on information that's need for us to protect ourselves, we did not agree
        to give up our health and Constitutional rights, This is an outrage and we
        do need to get angry!! No sweet talking is acceptable we deserved to be recognized.

  17. I was injured (Left Knee) in Basic Training in 1997 and couldn't continue, I was made to stay as my unit graduated and I had to go through many verbal meetings with first Sgt and Capt. Well long story short I was discharged at first with not able to perform and later fought it through the VA Purple Heart to Honorable Medical discharge and a 10% disability rating. Here's my issues now, my left knee is getting worst, my right knee and back are now hurting me to the point that I haven't done any of my normal activities, work outs or any other strenious things because of it. I'm a hard headed person and deal with the pain and don't go to the Dr's and was wondering how I can get evaluated to see if my Comp % can be increased?

  18. Edward Smith says:

    I retired in 2003, while serving for 20 years both shoulders indicate I have a positive impingement I went on sick call given medication and put on profile, in 2012 I had my left should repaired, in july 2013 I scheduled to have my right shoulder repaired, how many time do you need to go on sick call for Va to consider it started in the military