Proving disability claim with the Department of Veterans Affairs

Proving disability claim with the Department of Veterans Affairs

Posted By Atlanta Disability Attorney || 24-May-2012

Veteran's who have applied for service connected or non-service connected benefits with the Department of Veterans Affairs (VA) often find that obtaining those benefits seems like fighting an insurance company. As an attorney that practices in the area of VA disability law I agree that it may often seem like you are fighting an up hill battle.

Proving the Claim

The veteran has the burden of proving that he/she is eligible for either Pension or Compensation benefits. The VA touts this as a non-adversarial process; however, as nearly anyone who has applied for these benefits would tell you, it can be extremely contentious as the VA seems to fight nearly every step of the way. But you cannot get frustrated and give up, you must keep appealing!

You may have heard that the veteran is supposed to get the benefit of the doubt with regard to proving their claim. This is true. According to the Regulations, the standard is "as likely as not", which means equal to or greater than 50%. Thus, where all of the evidence is equal the tie goes to the runner and the veteran should be awarded benefits. However, it is often this writer's experience that the VA seems to want you to prove 51% or 75% or even 100%. This is why you must keep appealing; the Regulations say you only have to prove 50%.

In order to prove 50% the veteran has to provide credible evidence which either proves he/she is totally and permanently disabled (for Pension) or that his/her current condition is linked to the disease or injury/event in the service (for Compensation). Credible evidence exists in the form of service medical records, current medical records, witness statements and the veteran's testimony. While some of us believe benefits should be awarded once the veteran has met the burden of proof, the VA can seem to create bad evidence out of nowhere that cuts against the veteran. The non-adversarial nature of the process then quickly dissolves when the VA says there is negative evidence going against the veteran. In my own opinion most of the bad evidence is created by way of Compensation and Pension Exams or QTC exams, while the VA has the right and duty to fully develop the veteran's claim it seems many of these exams are performed and reports are written for the sole purpose of creating evidence that will be used by the VA as a way to deny the veteran's claim.The veteran is then forced to essentially prove 51% in order to overcome the bad evidence.

Also important in navigating this non-adversarial process, is the knowledge that the VA has various affirmative duties when processing a claim. One of the most important duties is the VA's duty to assist in the development of the claim. This means that the VA must make reasonable attempts to obtain records under the government's control that they know exist. Thus, the veteran can trigger the VA's duty by simply informing them of important information. A statement such as "I receive benefits from the Social Security Administration due to the fact that I can not work because of my service connected disabilities that are treated at the VA Medical Center" triggers the VA's duty to request a copy of that veteran's entire Social Security file, the VA medical records and also raises the issue of unemployability. While the VA has numerous affirmative duties as required by the Code of Federal Regulations that are intended to assist the veteran, the veteran still has to prove his/her case. The best way to prove the case is to create documentary evidence (i.e. medical records and written doctors' opinions). While the veteran's own testimony is important, 95% of what the VA cares about is what is on paper.

As an accredited attorney with the VA I would advise any veteran attempting to obtain service connected or non-service connected disability benefits through the VA to gather all of the evidence yourself...or hire an accredited attorney or representative to do it for you. The VA may have the duty to assist, but they often fall short.

McElreath and Stevens, LLC is a law firm with attorneys accredited by the VA. We assist veteran's not only in our home state of Georgia, but throughout the Southeast and across the nation. We help our clients by assembling the evidence, making legal arguments and filing appeals. If you have questions, we urge you to seek advice from an individual accredited by the VA and experienced handling veteran's disability benefits claims.

Categories: Veteran's Disability