Va 21-4138 Statement In Support Of Claim As Evidence

[add55p]

All

Does a completed statement in support of claim (VA form 21-4138), filled out by the veteran, detailing an inservice episode carry much wait?

Does the rating specialist have to mention the completed VA 21-4138 as evidence reviewed in the evidence section of the rating decision packet?

Thank you,

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[Berta]

A 21-4138 isn't 'evidence'. (except as what James Scripps did below)

Proof of the inservice event is.

"Does the rating specialist have to mention the completed VA 21-4138 as evidence reviewed in the evidence section of the rating decision packet?"

They never listed a 4138 on any rating decision I ever got.

Then again I very seldom used this form.

They did list evidence I sent in with the 4138. (Sometimes)

James Scripps , the first Conus AO veteran, took a pile of 21-4138s with him on his many trips to Fort Gordon and elsewhere to prove he was exposed to Agent Orange.

He used them for Buddy statements, having the buddy file out the 21-4138 themselves and then had then sign it,with Contact info on them for the VA, and he put on the top of the form ,his name and C file number and identified the AO claim this 4138 was in support of.

We did some fabulous radio shows with James here in the Radio archives ,one in part on how he used the 4138 this way.

[add55p]

Berta

I was thinking that since the 21-4138 contained a statement of service incurrence, it would be used as lay evidence and treated as such!

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[Gastone]

Add: Refer to VA Attorney Chris Attig's Vets legal info site. He had an article back in 3 or 4/14 regarding your topic and discussed in great detail that a "Signed Affidavit" executed by a Veteran carry's more weight than the VA Stmt support of claim. It made since to me and I used (3) Signed Affidavits at my 06/14 DRO Hearing. I told the DRO why I submitted the Affidavits, he seemed impressed and smiled. Ended up awarding all issues and specifically mentioned affidavits in Award.

Semper Fi

Gastone

[Notorious Kelly]

This may be what Gastone is referring to: http://www.attiglawfirm.com/veterans-university/sworn-declaration-template/

[Berta]

Gastone, that is a Great Idea......

I learn something new here every day>

"I was thinking that since the 21-4138 contained a statement of service incurrence, it would be used as lay evidence and treated as such!"

Yes , it will be considered as lay evidence, but the VA weighs the probative value of lay evidence.

The CAVC says it better than I can:

131

The Medical Examiner as Factfinder: The Effect of

the Lay Evidence Doctrine on VA’s Duty to Assist in

Securing Medical Nexus Opinions

Simone Coyle, Amy Ishizawar, and Holly Seesel

1

INTRODUCTION

Recently, the United States Court of Appeals for Veterans

Claims (CAVC) and the United States Court of Appeals for the

Federal Circuit (Federal Circuit) have been focusing attention

on analysis of lay evidence by the United States Department of

Veterans Affairs (VA), when such evidence has been submitted in

support of claims for veterans’ benefits.

2

Specifically, CAVC has

emphasized that lay evidence may not be categorically dismissed

as not competent evidence.

3

Instead, consideration must be

afforded and a determination made as to whether such lay

evidence is competent and credible as to the purposes for which it was submitted."

This the Lay Evidence Doctrine:

I. THE LAY EVIDENCE DOCTRINE

All evidence, medical or lay, submitted during the course

of an appeal must be addressed when VA renders a decision on a

claim.

7

In particular, an analysis of the competency and credibility

of the evidence must be undertaken by VA before assigning

probative weight to the evidence.

8

Competent lay evidence is

defined as any evidence “not requiring that the proponent have

specialized education, training, or experience,” but is provided “by

a person who has knowledge of facts or circumstances and conveys

matters that can be observed and described by a lay person.”

9

Competency is a legal concept which determines whether the lay

evidence is admissible before VA as the trier of fact; credibility is a

“factual determination going to the probative value of the evidence

to be made after the evidence has been admitted."

http://www.bva.va.gov/docs/VLR_VOL4/AuthorsCopies4-Coyle-Ishizawar-Seesel.PDF

The 'probative' value..........to me much lay evidence should often be considered as icing on the cake.

I dont feel it should be relied on to stand alone in every case.

Lay evidence is great when it can cooborate an established fact or state a fact that can be proven.

But It depends however on what the lay evidence is.

The VA accepted lay evidence from me as to my husband's Housebound status.

But also the VA had proof that he could not drive, and the VA Van had to pick him up and take him to VA Day treatment a few times a week because he had become too violent for me to drive him there.During Night driving he was OK. It was day driving that caused him flashbacks.Also his medical records showed he had sever extremity weakness, PN, PAD and thus limited ability to walk. Also he had visual disturbances and memory problems and got lost during a trip they took while at the inhouse PTSD program in Buffalo. Even with severe memory problems he never forgot 2 things..our phone number..and Vietnam.

He called me from a outside phone thing when he got lost but he could not read the street signs or see well enough to describe where he was. I could hear him asking people walking by ,where he was , but a Vietnam vet decked out in Camis, and a hat covered with the Vietnam srtuff , with obvious disabilities, and near the VA hospital,

that held the PTSD inhouse program, was not exactly someone anyone in Buffalo NY would be willing to help I guess.

Finally the team leader suddenly got on the phone and told me he is OK, we found him.

That was all lay stuff I told VA and added my Oath at the end of it.

It was all considered competent and credible lay testimony, and was borne out by the facts in the medical records..I dont even know if they checked the facts.

By all means submit any lay statements you can.The VA can no longer dismiss lay evidence as easily as they used to do.

Have you attempted to get any Buddy statements or anything in your SMRs or 201 file that can cooborate the lay statement?

Is your inservice MOS consistent with the statement?

If we know what lay statement you are claiming maybe we can help you more.

[add55p]

Berta

THE LAY EVIDENCE DOCTRINE information says it all.

I will draft something up to support my appeal based off of this lay evidence doctrine.

My concern is why my VSO is not giving me any solid advice. I have worked with three different VSOs and none of them seem to be proactive when it comes to providing general, helpful information as received from this forum.

Thank you all!

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