How to Collect Evidence to Support Your Claim
Obtaining the evidence you need to analyze and develop your claim can be challenging. However, part of a winning strategy involves laying the ground work by first obtaining all available evidence. You should obtain not only your claims file, but any relevant Social Security records and medical records from private doctors. Obtaining all the relevant records on your own is very important in the early stages of case development. Having all the evidence allows you to pursue theories that are suggested by the evidence that you may not otherwise have considered had you not seen the complete file. Also, having a complete picture of the evidence allows you to make an honest and objective assessment about your chances of success. You should consider the following strategies:
STRATEGY #1: Request that VA obtain all records that are being held by another federal agency. VA has a duty to do this under the regulations.
STRATEGY #2: Submit a VA Form 3288 to obtain your records in the possession of VA.
STRATEGY #3: Obtain your VA medical treatment records.
STRATEGY #4: Obtain buddy statements and statements from friends and family
STRATEGY #5: Obtain your own private medical expert report.
STRATEGY #6: Do your own medical research. You can submit medical articles and texts to support your claim.
How To Conduct Your Own Medical Research To Support Your Claim
The VA regulations allow you to support your claim with medical articles. You should undertake basic medical research to obtain articles in support of your medical theory and to inform yourself of the basic medical issues concerning your disability. We recommend several resources to consult in your medical research:
In the library, we recommend you consult the Merck Manual, Dorland’s Illustrated Medical Dictionary and, if your claim involves a mental disability, the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).
How to Make a Freedom of Information Act (FOIA) Request
The FOIA can be very helpful in obtaining documents from government agencies, such as the VA. For information on making a FOIA request, we recommend going to the VA’s website at http://www.foia.va.gov. You should also be aware that VA has a new electronic FOIA program.
VA’s Duty to Assist
VA has an obligation under the law to make reasonable efforts to assist a veteran or a claimant in obtaining evidence necessary to win his claim. VA must comply with this obligation before it can deny your claim. There are several types of records that VA is required to obtain. First, it must obtain records in the possession of the federal government, and second it must obtain non federal records such as private medical records and records held by a state government. VA must continue its efforts to obtain the records held by the federal government until it is reasonably certain that the records do not exist or that further efforts to find them would be futile. For non federal records, VA is required to make reasonable efforts to obtain the records the claimant identifies and authorizes VA to obtain. This usually means that VA will make an initial request and at least one follow up request.
We strongly recommend that you first obtain your private medical records on your own and review them before submitting them to VA. Similarly, with Social Security records, we recommend obtaining them first and reviewing them prior to submitting them to VA.
VA also has a duty to obtain a medical examination or opinion. As indicated, although it is our preference that veterans utilize private medical experts, we are also aware that not every veteran can afford the cost of a private doctor. As such, you should take steps to make sure that you maximize the chances that the VA doctor will write a favorable opinion. You should make sure that (1) your file contains lots of statements from friends and family that document your continuous symptoms since discharge; (2) request that the VA make a finding as to what evidence is considered true before any exam takes place. If you have medical articles and texts to support your claim, these should be given to the VA examiner.
Developing to Deny
This means that VA tries to obtain its own medical expert reports to support a denial of the claim. Sometimes, when the VA does not want to accept your favorable private doctor’s report, it will schedule an unwanted C&P exam in hopes of obtaining a negative medical opinion that it can later rely on to deny your claim. If this occurs, we recommend submitting another private medical opinion along with medical articles.
How to Obtain Your Claims File
Your claims file contains all communications and documents that refer to your VA claims. Also included in the claims file are your military records if you are claiming a disability, all compensation and pension exam reports, letters from VA, VA decision documents such as rating decisions, statements of the case, and medical treatment records. Any documents that related to veterans benefits are kept in your claims file. This is generally the only place where these documents are kept. However, your Vocational Rehabilitation file is kept separately.
Before requesting any other records, we recommend that you request a copy of your claims file. You can use VA Form 3288 to request a copy of your claims file. You can also use Form 3288 to request other medical records not in your claims file. In addition, you can make any other request in accordance with the Privacy Act or the Freedom of Information Act to obtain your claims file. Under the Freedom of Information Act, the VA is required to provide a response within 20 business days. However, VA rarely complies with this time requirement. The VA can charge a fee to copy your claims file, but you are allowed one free copy. We recommend that if you are thinking about hiring an attorney, let your attorney obtain your one free copy of the claims file.
How to Request Your Military Records
The National Personnel Records Center in St. Louis, Missouri is the location that stores military records. Unfortunately, in 1973 a fire destroyed many records located at this facility. You can obtain copies of your military records by submitting Standard Form 180. You can download this form from the internet at www.archives.gov/veterans/military-service-records. Fill out this form and mail it to the address indicated on the form.
How to Obtain a Private Medical Expert Report
Obtaining a private expert report can be challenging. The challenge is made worse if you have no money. If you have a private physician you may be able to obtain a report from him for little or no extra cost. However, most treating doctors are unfamiliar with the VA claim process and will likely need instruction on how to write a report that will pass muster for VA purposes.
We recommend that you explain to your doctor that exact proof or medical certainty is not required. Explain to him that it only needs to be 50 percent likely or greater that your disability is linked to service. You should request that he phrase his opinion in terms of whether it as “as likely as not” or “more likely than not” that your disability is linked to service.
You must also explain to your doctor that he must provide reasons for his conclusion. In other words, he can’t just write one short sentence stating that your condition is related to service. He must provide reasons and a detailed explanation as to how and why he arrived at his conclusion. The VA is known to discredit the opinions of private doctors based on their failure to provide reasons for their conclusions.
Also, you should make your claims file available for your doctor’s review. His opinion is only as strong as the evidence upon which it is based. You want to make sure that his opinion is based on your complete history. It is advisable that you tell your doctor to write in his report that he reviewed the claims file.
Claims files are often very large. In order to make it easier for your doctor, you should organize the medical records in chronological order and put sticky notes or tabs on the relevant records that pertain to your disability.
If you do not have a private treating doctor that is willing to help you, then obtaining a private medical expert can be more costly and difficult. You will have to find an independent medical expert. There are several strategies for doing this. First, if you have had a Social Security claim your Social Security lawyer may be able to refer you to a private medical expert. Generally, attorneys that handle Social Security claims, workers compensation claims, or negligence cases may be able to recommend a good medical expert. If you don’t know a lawyer who can recommend someone, then you may want to consult several independent medical expert services. If you have any questions about locating a medical expert, please contact our office. In developing the cases of our clients, we utilized our own network of private experts that have a proven track record. We usually advance the cost of the expert and when we win the case, our clients reimburse us.
Can You Obtain a Medical Report From a VA Treating Doctor?
From about 1998 until 2005 VA treating doctors were permitted to express opinions concerning the disabilities of their veteran patients. Recently, VA changed its policy to allow its doctors only to make statements about a veteran’s current medical condition or functional capacity. However, you can still ask for an opinion from your treating doctor. We have had numerous cases where clients have obtained favorable letters from VA treating doctors. It never hurts to ask.