Your VA Application for Disability Compensation: Part 2 of 4
To catch up from the last writing, you just finished researching the ins and outs of your hypothetical disability: sinusitis. After searching the Internet, checking your Service Medical Records and verifying that you meet the criteria 38 CFR Part 4: Schedule of Ratings, you’re ready to talk to a Veteran Service Officer (VSO).
Before the meeting, be sure to have all your ducks in a row. I generally bring all documentation relevant to the specific injury or injuries with me along with a summary sheet. Avoid dropping your whole file on the person’s lap with the expectation that they will sort through it for you. Try to keep the summary sheet as short as possible – One to five pages, depending on the number of issues. Your documentation will be in addition to this (doctors’ opinions – civilian, VA, military). Always try to keep things as short as possible. Include a table of contents of your injuries. Here is a copy of an actual claim letter for sinusitis, allergic rhinitis and sleep apnea. It’s mine, so be gentle.
On evidence. One thing your evidence should have is a Nexus letter (hopefully from a doctor or your in your SMRs) explaining how the evidence in your file is relevant to the condition you have now. This can be tricky for new conditions secondary to service-connected conditions. Never bring your originals anywhere. Take copies of your files with you in a folder to your VSO meeting.
One misunderstanding of many is that lay evidence counts very little because it is not “objective.” (lay evidence is a statement from the veteran or buddy letter that supports a claim). Not true according to Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). That court held:
“In a veteran's claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, [such as a broken leg, but not a form cancer], (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”
This means the lay person cannot "render medical opinions, including etiology opionions," but can provide testimony that is an eyewitness account of medical symptoms. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). According to Jandreau, “Contrary to the Veterans' Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well.” To that point, the VA had been guilty of largely disregarding personal statements because they were not “objective.” They were wrong and the Federal Circuit had the last say, binding future VA decisions. On that note, I would question anyone claiming VA Compensation adjudicators are “objective,” too, given that the government takes an unjustified position in 70 percent of veterans denials. This means VA adjudicators are not following the law.
About the meeting. Be careful to never overwhelm your audience. The summary will keep your conversation focused. Also remember to be as friendly as possible. Many VSO’s make less that $35,000 per year and should be respected for their sacrifices to help us get the benefits we were promised.
VSO Selection. Not all VSO’s are created equal. Keep an open mind and shop around for the one you feel the most confident with handling your case. Some have less training or experience than others. Others have too many cases to directly manage effectively. The advantage for you will be the fact that you have your case already together. Talk to the VSO about how to further document your claim prior to filing it. If the VSO feels confident that you’re ready to go, go for it. One thing to consider, a bad VSO can squash your ability to appeal successfully by failing to notice shortfalls in your documentation before an appeal.
The application step does not require a VSO. You can fill out the VA claim online: VONAPP. The non-computer savvy veteran can download the Form 21-526 and fill it out manually or request that the VA mail one to you by calling 800-827-1000. This begins the process.
If doing this on your own, remember that there are many ways to skin a cat. You can be very general about the condition(s) or very specific. I have had success with both. Do not attempt to diagnose the condition yourself. For the sinus condition, you could merely state “sinus condition” or “problem breathing”. Or, you can be specific and state “sinusitis” if it is in your file. However, do not get cute and diagnose something that is not stated in your SMRs. List the symptoms, not the diagnosis (back pain with numbness down the legs, for example). Now, if you believe you have something like sciatica, then listing that after the symptoms may be fine. Again, this depends on your specific situation and comfort level.
Here is what the Department of Veterans Affairs provides about this process. It’s a little vague which explains why so many websites are espousing advice. An informed decision is always the best decision. Next we will talk about what the VA does after getting the claim.
Check out www.disabledveterans.org for more information. I’m no expert, but I’ve been where you’re going a time or two. Good luck.
# # # # #
Benjamin Krause is an award winning investigative journalist, attorney, and disabled veteran of the US Air Force, where he served in its Special Operations Command. He wrote his guide, the Voc Rehab Survival Guide for Veterans, after winning his long fight for benefits against VA to help other veterans do the same. Benjamin is a graduate of Northwestern University and the University of Minnesota Law School using VA Vocational Rehabilitation.
