At The Regional Offices - Suggested Boilerplate

[allan]

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IV. Advice to Advocates

A. At The Regional Offices - Suggested Boilerplate

Advocates should submit the following boilerplate (suggested language) in

support of all pending claims and with all new claims for VA benefits.

The Veterans Claims Assistance Act of 2000 (VCAA or Act) was signed into

law on November 9, 2000. See Pub. L. No. 106-475, 114 Stat. 2096 (2000).

The VCAA eliminates the well-grounded claim requirement and requires the VA

to explain to all claimants what evidence is needed to substantiate their

claims.

The Act requires that the VA comply with the duty to assist unless the VA

determines that no reasonable possibility exists that VA assistance would

aid in substantiating the claim. Therefore, if you decide not to assist

this claimant please explain why no reasonable possibility exists that the

claimant could obtain benefits. See 38

USC. § 5104 (where the Secretary denies a VA benefit, he must provide a

statement of reasons for the decision and a summary of the evidence

considered).

Please note that the VCAA requires the VA to make reasonable efforts to

obtain relevant (non-federal) records. Also, the VCAA requires the VA to

continue to attempt to obtain relevant federal records until it is

reasonably certain the federal records are unobtainable or that they do not

exist. Of course, we request that if you can make a favorable decision on

all or some of the claims submitted by the claimant that you do not wait to

make such decisions. Also, please let my client know if additional

information is needed in order to obtain relevant private or federal records.

If a medical examination and/or medical opinion is needed to determine

nexus or linkage issues please delay that examination until my client has a

reasonable opportunity to submit continuity of symptomatology and other

supportive evidence. Also, we request that you advise the VA examiner that

linkage does not have to be established to a medical certainty because the

standard of proof in VA claims is the “benefit of the doubt” or the “as

likely as not” standard.

Also, when you schedule an examination please advise the examiner what

facts have been accepted as true by the regional office. A medical opinion

would be inadequate if the examiner based the opinion on facts that were

not accepted as true by the RO.

Under the VCAA, 38 U.S.C. § 5103(a) mandates that, in the case of every

claim submitted to the VA, the VA shall (must) notify the claimant and the

claimant’s representative of “any information, and any medical or lay

evidence, not previously provided to the Secretary that is necessary to

substantiate the claim.” In addition, the VA is required to explain to the

claimant what evidence the claimant must obtain and what evidence the VA

will attempt to obtain. Therefore, please explain to the claimant what

types of evidence would help substantiate this claim. We specifically want

to know if lay or “buddy” statements are needed to substantiate (1) what

happened in service, (2) allegations of continuity of symptomatology by the

veteran, and/or (3) the current severity of any disability at issue. For

example, if a lay statement from a family member

indicating that the veteran, during service, told the family member of an

in-service knee injury would help substantiate that a knee injury occurred

during service, please suggest that we submit such evidence.

in some instances, there may be positive and negative evidence in the VA

record. If you determine there is negative evidence in this claimant’s

record please let my client know what this evidence is and please let us

know what types of evidence would tend to rebut this negative evidence and

thus substantiate this claim.

If a decision (RO, BVA, CAVC, or Federal Circuit) became final on or after

July 14, 1999, wherein the claim was denied as not well grounded, advocates

representing claimants before ROs should file a request for readjudication

with the RO. Advocates can use VA Form 21-4138 to request readjudication,

or simply submit a written request for readjudication. The request for

readjudicatton should indicate that the VCAA mandates that a denial of a

claim as not well grounded, which became final on or after July 14, 1999,

must be readjudicated as if the denial or dismissal had not been made. An

advocate’s action on this front should make it possible for claimants to

obtain the earliest possible effective date. Advocates or claimants have

two years from November 9, 2000, to make a written request for readjudication.

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B. At The BVA

Advocates should ask for a remand when either the notice requirements of

the VCAA have not been satisfied or when the RO denied the claim as not

well grounded. Of course, other failures by the RO (for example, failure in

the duty to assist, or misinterpretation of a statute or regulation) should

also be argued. Most likely many remands will be generated because the VA

failed to explain to the claimant what evidence, including evidence such as

medical opinions and lay statements, would substantiate the claim.

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[Tbird]

army here is a link to stuff that has been posted about vcaa - please read through this there has been a lot written already.

http://www.google.com/custom?domains=HadIt...D%3A1&hl=en