Advice To Advocates

[Guest allanopie]

##### START #####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 memberindicating 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. -------------- END Boiler Plate -------------- 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. ##### END #####