VA Disability - Step 3: Gather and submit evidence
Maybe filing your claim seemed simple. Well, winning your claim after you've filed is another matter entirely. If you did this part of the process well, you markedly increased your chances of a good result. But your task isn't complete. Now you must provide evidence to support your claims.
Reminder: If you aren't confident you can do everything on your own, you can look for an advocate. But even if you do ask a representative such as a VSO to help you, the VSO will want you to be involved in your own claim. You may be told that, "This isn't a spectator sport!" Your VSO will do a much better job for you if you're actively helping to gather evidence and getting good copies of evidence to the VSO for review.
What kind of evidence do I need?
The Veterans Benefits Administration [VBA] is charged with evaluating your evidence and deciding a rating. You want to offer them the best possible evidence.
The gold standard for disability compensation evidence is the Service Medical Record (SMR). The VA is looking for clear documentation of:
- an event that occurred that had an impact on your health,
- the circumstances surrounding the event,
- subsequent treatment records of how the injury or illness was addressed at the time, and
- any follow-up care or treatment.
This evidence will be given significant consideration and weight.
Other evidence may be:
- historical records of a unit engaging in combat or other hazardous operations,
- ship's logs and flight records, or
- individual awards such as Purple Heart medals and other commendations for meritorious action.
Statements from individuals are often called "buddy letters." These may be used if you have little or no other documentation of the critical events. These statements may or may not be useful, depending on the credibility of the author. If the person who writes the statement was an eyewitness to an event and was an officer or senior NCO with leadership or command responsibility, the statement may be given a great deal of weight. Statements by spouses, friends, family or others without direct knowledge of the alleged event may not be seen as credible and, therefore, ignored.
Almost anything can be submitted as supporting evidence. Photographs, maps, letters to loved ones and recordings have all been considered as evidence to document events.
How do I show the relationship or "nexus" between the event and my disability?
In some cases, it's difficult to show the cause and effect of a disability. In those cases, the VBA is known to lend a great deal of weight to expert testimony. In most cases, this testimony is the difference between winning your claim and having to appeal a denial.
There are two different ways of offering this testimony. The testimony can be presented with an Independent Medical Opinion (IMO) or with a "Nexus Letter" or VA Disability Benefits Questionnaire (DBQ).
- An IMO is report written by a doctor who has reviewed all your related medical records (both military and civilian). The doctor is selected by you, is usually one familiar with the VA (though NOT a VA doctor), and reviews the records you give them. If after reviewing your records, the doctor believes there is enough information to find that your injury or illness is related to your service, the doctor will write a report that will include that finding and explain how they came to that determination. Rarely do you see this doctor in person. The determination is usually based on records only.
- A Nexus Letter is typically a brief letter written by your doctor explaining your injury or illness and how it is "more likely than not" linked to your service. Nexus Letter are not as talked about since the inception of the DBQ. A DBQ is similar to a Nexus letter but is a questionnaire that your doctor fills out that simply states what your injury or illness is and whether they believe it is "more likely than not" service connected.
We recommend getting an IMO over a Nexus letter or DBQ, since IMOs are:
- Often more in depth,
- Written by a doctor who is familiar specifically with the VA and what the VBA is looking for, and
- Tends to be more successful in getting you claim awarded without an appeal.
However, you should know that an IMO will not guarantee an award and will likely cost you money. Is it money well spent? That, of course, depends on your financial situation and how complicated your claim is. If you can afford it and your case is complicated (i.e., not a presumptive illness or is related to an event that happened many years ago with incomplete records), then it's almost always money well spent. Appeals can take a long time and you won't be paid on your claim until and unless you win. You'll get back pay, but again, it can take a very long time. So if you can avoid an appeal to begin with, it's often worth the upfront cost.
If you can't afford an IMO, or your case is VERY straightforward (like a presumptive illness or an abundance of service connected records) then you may be fine with a Nexus letter or DBQ. We always like to recommend the "better safe than sorry" option of an IMO, but understand that some folks can't get an IMO or don't need need one.
If you are interested in getting an IMO, Jim Strickland at VAWatchdog.org recommends several doctors who provide them. You can find more information about IMOs and recommended doctors here.
If you want to learn more about Nexus Letters and DBQs, NVLSP.org provides some good information and some forms to give to your own doctor. You can find NVLSP's DBQ information and forms here.
How do I go about gathering evidence?
The VBA has a "duty to assist" the veteran in gathering evidence. The wise veteran will ignore this and act as if there were no such requirement.
Begin to secure copies of all available records as you are completing your claim form (VA Form 21-526ez).
The VBA will ask you to provide the names, addresses and telephone numbers of all treating physicians and other health providers. You will also be asked to fill out forms allowing your medical providers to release private medical information to the VBA. It's important to accurately prepare and return these forms to the Regional Office [RO]. But it's more important not to rely on the VBA to complete the task of gathering that information.
While the VBA has a required "duty to assist" you, that duty does not guarantee that any extraordinary effort will be made. A VBA Veterans Service Representative [VSR] is given the task of retrieving the evidence. But after trying once or twice without a result, he or she is under little or no obligation to continue.
Be aware that numerous barriers to releasing confidential health records are working against you. An overall misunderstanding of the HIPAA Privacy Rule has left many medical providers reluctant to release records even to the patient. Some providers now charge for copies of records. And in many busy providers’ offices, sending records to the VBA for a patient who may have moved away or otherwise have an inactive file simply isn't a priority. Many hospital and other medical providers have hired 3rd party vendors to operate their records functions. The records that you believe to be held at the civilian hospital where you were a patient 5 years ago may be in a facility in another state archived by a firm that handles 100 different hospital accounts.
So to ensure that all critical records reach the VBA, you must accept the task of retrieving and documenting. Remember, this is your case. Leaving this task to the VBA, VSR or a VSO is a mistake that may cost a great deal later.
Where else can I go to find relevant evidence?
Similarly, military records are often lost or misplaced. Therefore, getting copies of all of your medical records before you leave military service the best approach. Gather, copy and organize for safekeeping all available military records. If you did not get your records before leaving the service, the National Personnel Records Center [NPRC] is a good place to begin. This is the repository for most military records. If your records aren't there, they explain other ways for you to find them.
A formal request to your VA Regional Office [VARO] is in order if you've ever had any previous interactions with VA. Ask them to give you a copy of your file or folder.
Navy ship's deck logs can be an invaluable source of records to provide evidence that supports your claim. Records of battles and troop movements through hazardous areas may be just what the VA will require to validate the injury that caused your condition.
The Freedom of Information Act [FOIA] can be a useful tool if you participated in covert activities or if you had a high level of security clearance. All government agencies provide relatively simple guides that can help you to obtain difficult-to-find documents. For example, the Army provides an FOIA Service Center and Records Management and Declassification Agency.
You can access other branches of the federal government using a Google search. For example, the Naval Postgraduate School maintains Navigating the Military Internet with dozens of links and helpful instructions to research your FOIA.
If you want to submit a statement from someone who served with you, but have lost touch with that person, go here to learn more of how to find a military veteran.
How should I communicate with the VA?
Other than the evidence supporting your claim of disability, the next most important factor is how you communicate the facts and evidence to the VA. Delivering information inside the secure walls of the VA Regional office is a critical part of the mission. This is true whether you choose to seek help through an advocate or to maintain complete control of the process. Stories of lost folders, misplaced evidence, folders and files containing papers from other veterans - and worse - are legend. Ask any veteran who has had dealings with their VA, and the odds are good that you will hear a story of a lost piece of paper that resulted in an unjust denial.
While VA provides online services that allow you to apply electronically or to ask questions via email, we recommend that these services be avoided.
The VA also provides a national toll free number for you to ask questions of a VA representative. Once again, we recommend avoiding this service.
We recommend that you always communicate with the VA by certified mail with a return receipt requested. Faxing, e-mailing, calling or even hand-delivering to an intermediary, to pass your documents on to the VBA, does not provide the security and guarantee of a certified letter. Once you have the green postcard returned to you with an official stamp or signature in place, you can be confident that your documents are delivered.
Don't rely on a fax machine. While the machine does provide proof that a transmission was made, there is no way to tell how well the machine that received it was functioning at that moment. Paper jams, empty toner cartridges and other mechanical malfunctions are commonplace.
Deliver your documents in a neat and readable format - easy to review by the individual who will have influence over your case. Number each page in order. Your name and Social Security number should be affixed appropriately. Keep copies of every document you send. As soon as you have your return receipt, correlate the receipt with those documents, just in case. Spending a little extra time getting organized at this point will be well worth it if there is any question of what evidence was provided and when.
Tips on writing an effective letter to the VBA
A well-written letter is the most powerful tool in your belt. Again, remember that telephone calls to the Regional Office don't connect you to a Regional Officer. And faxes may misprint even though you get a positive "sent" message. So writing a letter is usually the first, best and only good solution for addressing any issue you have with the VBA.
While you don't need the skills of an English teacher to write an effective letter, here are a few things you shouldn't do, as well as those you must do. As a giant bureaucracy, the VBA is a paper churning machine. Although computer age was to rid our offices of paper, it seems to have just given everyone their own printer along with reams of paper. So your letters should be short and to the point. Here are a few more tips:
- Use italics, boldface and large font sizes sparingly.
- Keep your message factual.
- Make reference numbers and dates clearly visible.
- In response letters, clearly reference and quote from the original message.
- Never use colored fonts.
- Never type IN ALL CAPS to emphasize your points.
- Use plain white sheet paper of a medium grade quality.
Remember: Your message on that piece of paper becomes a legal document. If your case should goes into a lengthy appeals process, the document you write today may be read again in a court room in Washington several years later. Your letter establishes the tone of who you are and your level of professionalism. You won't be appearing in front of the person who will read your communication. So this letter is your chance:
- to impress the VBA with your knowledge, and
- to get them to agree with you.
State facts that are relevant to your case. The VA reader cannot respond to or consider your personal theories of how unfair the VA is to veterans. It is not the VA's job to listen to how you may have fallen on hard times. Your insults toward the VA will be ignored.
We believe that most VA Service Representatives will do their best to allow a veteran a little leeway if he or she is angry and needs to blow off a little steam. However, a steady stream of insults is just a waste of everyone's time. Also, these people are human. Wouldn't insults have a some negative affect on you, if you were the decision maker? If you feel compelled to write such a letter, do so. Then throw it away. Then set about the task of writing a letter that will help you communicate with the VA effectively.
Again, respond by letter when:
- making a statement to support your claim,
- requesting an increase to your existing benefit,
- asking for copies of your records,
- protesting or disagreeing with a VBA action or attempted action.
- Reference numbers: Often this will be your Social Security number. Or it could be your VA C-File number, if you have one. When you're replying to a letter from VA, they will often tell you to use a coded number when replying, so insert that, too.
- State your case as briefly as possible.
- Be courteous, to the point.
- Make your letter simple to read and factual.
- Making demands, criticisms, telling your life story or otherwise straying from a professional tone will slow down the process and may hurt your case.
Finally, don't quote or copy and paste endless paragraphs of verbatim Title 38 references. This may be the most common error I see in veterans' letters. If you believe that a rule, regulation or law is directly relevant to your claim, you can cite it as a reference. But don't copy it all into your letter. VA personnel have their own copies of all the rules. Remember those stacks and stacks of paper on their desks. They don't need more useless paper.
Your communication to the VA is similar to a sales pitch. You have a theory that you want the reader to agree with. Your reader is most often a Veterans Service Representative or a Ratings Veterans Service Representative. Your task to convince that person to honor your request or award your benefit. This letter is one of your best opportunities to close the deal.
June 2010, 2020
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