Evidence: Unlocking your Compensation Claim
While the Department of Veterans Affairs states their process is non adversarial, in most cases a Veteran has to prove his or her case beyond the scope of the Benefit of Doubt Doctrine. Tipping the scale in their favor is often encountered with much antagonism from VA employees. For example: During a recent phone conference call to VA with my client in attempt to present our argument for case in question, the VA employee became irate and verbal tones escalated to a seemingly attack note. I had to ask the employee to “back off” and reminded that while we presented evidence in attempt to introduce evidence his reaction was not appreciated. Reminded the employee that he was talking to a Veteran. He replied with “I am a Veteran also”. Well shame on him. He is first and foremost an employee in representation of the Department that employed him then a Veteran.
While I am used to this type of interaction I still have not gotten accustomed to it. Therefore, Veterans, it is important to use your time wisely when you are given the opportunity to argue for your case. Be prepared. Mr. Chris Attig from the Attig Steel Law Firm put it, “know your case”.
Mr. Attig encourages all Veteran to review a complete copy of their claim folder. In the content of your claim file you will find the answer to your question; “why did the VA deny?”. By reviewing what the VA department has on you or not will allow you to plan a strategy of addressing your claim and take advantage of valuable time. Needless to say, you will also be able to fend yourself from the antagonistic VA employee.
Number one problem in most cases is an incorrect trail history of information. Obtaining a copy of your claim folder is addressed in a separate blog. However, you can always call the VA line 800-827-1000 and express a desire to obtain a copy of your claim folder. More than likely they will ask you to put it in writting. Do so! Your request simply needs to include: Freedom of Information Act Request, your identifying information and the following phrase; 1. This is a request for documents under 38 CFR section 1.577, the Freedom of Information Act (FOIA), 5 U.S.C section 552, and the Privacy Act, 5 U.SC. section 552a. Start here before you proceed. By doing so, you will know if the evidence is in your file.
Second, review your file. But most important, became knowledgeable regarding important VA court landmark cases. If you are claiming a condition, then you can surely bet someone else did so before you. You can learn much from reading the case. The case notes will tell you the regulation used for that condition and what type of evidence was used to grant the benefit. You will also know if there was missing evidence. You can use these cases to build a map towards your evidence.
Here is a few cases
- Allen V. Principi, 237 F.3d 1368 (Fed. Cir. 2001) and Barela v. WEst, 11 Vet. App 280 (1998) addressing wrongful misconduct, or abuse of alcohol or drugs.
- Horn v. Shinseki, 25 Vet App. 231 (2012) presumption of soundness
- Ingram v. Nicholson, 21 Vet. App 232 (2007) Inferred conditions
- Jandreau v. Nicholson, 492 F.3d 1372 (2007) lay evidence
It is important that the facts and evidence used be presented early on in your case. Trying to clarifying or interpret the facts in a case at the Board level often does not result in a favorable outcome. I learned a thing or two about claim advocacy from a Veteran Attorney. If you are a Veteran seeking information to empower you in this rocky road get signed up with the Veteran the Veteran law Blog. You will gain valuable information to help you on the road to winning your claim. Mr. Chris Attig does not pay me for the referral ok. In his blog you will find detail information on the above and more Court cases to help you win your case.
Z.I. - San Diego, CA
C.P. Long Beach, CA