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Letter From Spouse?


SwiftSig

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Good Evening,

My first time posting here, I have bunch C&P exams coming up midweek this week. My wife randomly decided she wanted them to hear what she had to say but is unable to make it to Exams. So she wrote a letter. Is this something I give to the person conducting exams? She insisted that i do this and would like to know the right way to do this.

Sig

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As a C&P examiner, I took letters from spouses seriously. And, if a vet was accompanied by his or her spouse and asked me to speak with him or her, I would always do so as it often helped me to better understand the frequency, intensity, and duration of mental disorder symptoms and associated functional impairment. 

Unfortunately, VA does not require examiners to interview family members, and there are not any specific requirements for examiners about how to regard letters from family members. 

Nonetheless, letters from "lay witnesses" could help, even help a lot, and they're unlikely to hurt a veteran's claim.

Veterans law attorney Chris Attig recommends submitting lay witness statements as a "Declaration", which he explains in a blog post. Note that Mr. Attig calls it a "sworn declaration" whereas other legal websites, and the relevant U.S. Code, call it either an "unsworn declaration" or simply a "declaration". In my experience reading Mr. Attig's blog over the years, he offers well-written, important, accurate information for veterans and their representatives. I don't know Chris Attig personally, but I respect him and value his opinion.

Although they don't mention using a Declaration, the law firm Chisholm, Chisholm, & Kilpatrick has a good article, accompanied by a question & answer video titled, How to Use Lay Evidence for VA Disability Claims.

There's an easy-to-understand, informative article on the Martindale (legal publisher) website that discusses Declarations in general,  i.e, the article is not specific to veterans law: When to Swear and When to Declare: Affidavit or Declaration? by Matthew J. Bakota (21 May 2012).

Finally, here is the statute itself: 28 U.S. Code § 1746 - Unsworn declarations under penalty of per­jury. I'm not an attorney, but it looks pretty straightforward. If it were me I would write exactly what the law specifies at the bottom of a family member's letter, and ask them to date and sign it:

Quote

“I declare under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”. - copied from 28 U.S. Code § 1746.

Note this part: "... under penalty of perjury ...." Chris Attig offers important advice in the blog post I mentioned above:

Quote

 

Just be aware: by using this form you are saying that you are making the statements “under pain of perjury”.  That means that if the VA can show you lied in this document on a material fact, you could be charged with perjury (that’s a crime, folks).

 

I hope all your exams go well SwiftSig!

~ Mark

Edited by Mark D Worthen PsyD
clarify; remove repetitive words; correct grammar (see edit history)
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Well, when my wife ''''asks" me to do something, I found out that its usually best not to argue with her at least "unless" there is an absolutely compelling reason for you to do otherwise, and you had better be certain as to how important it is to you to do it the opposite way she asks.  So, unless you are adamantly opposed to it, I would simply had the examiner the letter and say, "my wife insisted I give this to you".  

Now, if you do that, you are at least off the hook with her, and, that may be even more important than your benefits.  

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Submit her letter has evidence, 

Now were not sure what it is your claiming?  but she knows you better than anyone else.

My spouse wrote a letter to the VA in support of my PTSD Claim , she  gave her statment as to how I was before Military (Vietnam) and After as for as how I changed and my behavior change   ect,,,ect,,,

she did say in her statement she was not a Dr  but she is my spouse and she knows me better than anyone.

They accepted her letter as evidence in my PTSD Claim.

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No specific dates  just  things like that ''since we were married  and after  ect,,,ect,'',, she did put how long we been married  & both firsts marriages  and how long we been married  back then 2002 it was 28 years  we been married 45 years coming up on #46

she also stated she wanted to make it clear she is not a Dr or Medical Professional, but has known me for a long long time and was around me every day since Military...and has notice some changes in my behavior and went with me to my check up appointment to VA PCP one time and ask the Dr About it (my behavior) is there anything you can do to help him?  The PCP Notice my behavior too  the PCP referred me to the MH Clinic  and the rest is history. 

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Thank you both,

I will submit it. It’s a letter that covers everything I’ve claimed. 16 things all together from PTSD to all injuries from head to toe as well as my deafness. I didn’t know she was going to write it until today. 

If I submit it as evidence will that make my FDC, a normal one? As things have moved extremely fast in my claims. This is the first time I’ve been through this. Submitted 30 days ago and have 4 C&P exams this week.

 

Sig

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By all means take your spouse to your exam.  When you get a doctor hostile to your spouse being present it is usually a warning sign.  The doctor that did not allow my spouse to attend was derogatory to me and I wish I had someone to witness the jerk.

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I personally believe that a letter from your spouse or significant other is one of the most important pieces of evidence you can have inside your claim.  I believe that many examiners and raters do not consider them important and tend to dismiss them and give them no credibility.   However, on appeal it is something that seems to be a deciding factor in overturning  a poor rating decisions by the BVA. 

There are two important pieces to this letter that I believe is critical.

1.  Your spouse should only list symptoms they see.  They should never state in the letter a diagnosis.  If your letter has a diagnosis in it and your spouse is not qualified to render a diagnosis the rater will immediately ignore it.

2.  Your spouse should state how your disabilities impact your day to day living.  What things you could do in the past but cannot do now because of your disabilities.  No one is more qualified to stated how your daily life is impacted than your spouse.

I think anything else in the letter would be overkill but that is just one man's opinion. 

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Thanks for weighing in Mark.  I also know Chris Attig, in fact, he is my attorney.    I think he will agree that lay evidence can help, but sometimes spouse's try to help and make stuff worse, providing "too much information".    I have no idea how skilled the poster's spouse is at writing letters, and I also dont know how accurate or conflicting this information is.  For the lay evidence to be beleivable, it really needs to confirm the evidence, and not conflict with the evidence.  

    If your spouse has read your file, and is very involved with your everyday care, skilled at letter writing, with great attention to detail, then this letter could be golden.  

However, if your spouse just got out of rehab from substance abuse, and is unsure of what today is, then you might want to consider leaving that letter at home.  You really want your spouses testimony CONSISTENT with yours, but not exactly the same.  Example:

(VA loves to mess us up this way.)   

WHEN did your husband start needing someone to bathe him?

Husband:  Two weeks ago.

Spouse:  NONSENSE!!!  You have taken a bath since 2009!  

Husband:  That is because I took a shower, instead!!!

    Can you see where this could be a problem???

I even have it with MY OWN TESTIMONY.   Example:  

When was the last time you worked??

 (Like I would know the exact date.  What date and time did you buy those shoes?)  Oh, I think it was 6 or 8 years ago.  

Then, another doc, later, asks the same question.  You had spoken with your wife, and she reminded you that it was in April 2002, at your daughter's 21st birthday.  

So, you say:  I havent worked since April, 2002.  

OOPS....you gave conflicting testimony.  

     Did you mean to?  No.  Were you guilty of fraud?  NO.  You might be guilty of not rememebering dates.  However, VA loves to show our testimony to be "not credible..in conflict" because we sometimes get our dates mixed up.  

     This occurs even easier with husband and spouse.  This is why I suggest careful use of spouse letters..reading them and ensuring they are consistent.  "Inconsistency" is 

Spelled "D..E..N..I...A...L"  in VA speak.  

Edited by broncovet (see edit history)
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Excellent points broncovetJKWilliamsSr

I've studied mental health C&P exam issues intensively for 8 years, and I continue to learn important details by reading this forum. Y'all are awesome. 👍

Edited by Mark D Worthen PsyD (see edit history)
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I think Bronco hit it dead on.  I think people may overthink lay statements and try to do more that what is necessary by adding information that may not necessarily be relevant but used against you.  I think lay statements fall into two categories, physical and mental and how that information should be presented is different.

Mental (PTSD, Depression, etc..) -  Letters from a spouse here can be tricky and it is here where I feel Bronco's comments really hit the mark.  Mental disabilities are so subjective it is not even funny.  It is probably very difficulty to be on the same page with someone that views things differently than the veteran.   If the letter has some discrepancy in it as far as not being on the same page the rater probably often uses that to question the validity of the spouses statement.  One person's interpretation can be different than someone else's and that often can come back to bite someone in the but. 

Physical  issues are probably easier to document in lay statements.  I think where people tend to get into trouble is they will say things like I noticed my spouse was limping and he stated his knee was hurting and it was because of his arthritis.   Once a statement like that is made the rater will assume that the spouse is making a diagnosis that the knee pain was caused by arthritis and then ignore the lay statement.   The only think that needed to be said was I noticed my spouse was limping and he appeared to be in pain and he complained that his knee was hurting.  That is all that needs to be said.  Nothing more.  It is a statement that shows you observed an issue.

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Thank you all so very much for the great advice. I did end of having Six C&P Exams today, I’m exhausted mentally and physically but I did receive your advice and turned in my spouses pay statement.

My experience today was much different that I thought it would be.

The first appointment was terrible I was 15 minutes early and the Gulf War general medical exam really didn’t go well at all. She was 30 minutes late so I had to sit there for 45 minutes wondering why was going on. I wrote down all the notes on the Dr and how she had no idea why I was there didn’t even read file until I was in the room.

I was really hoping not every one was going to be as rude as the first one and thank god that changed. She told me the lay statement from my wife was worthless and I shouldn’t even bother. She did zero DBQ’s because all of my problems were not under her specialty thank goodness.

The next 5 appointments were great all of the doctors did their due diligence before seeing me and were much more comfortable with talking to me. I had everything on each claim in color coded folder and tabbed for each specific incident as well as current diagnoses as my VSO recommended to keep everything organized for them.

The Doctor my PTSD actually told me she thought it was a great idea and even read it right then and made a copy then asked me to please submit it to VA intake as well just to be sure they receive it.

All of the other doctors read the her statement happily and asked me to submit as well as they thought it help my claim and if it doesn’t it will not hurt it.

It too me awhile to get the courage to do this thank everyone for your words and wisdom.

 

Sig

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2 hours ago, SwiftSig said:

I was really hoping not every one was going to be as rude as the first one and thank god that changed. She told me the lay statement from my wife was worthless and I shouldn’t even bother. She did zero DBQ’s because all of my problems were not under her specialty thank goodness.

This right here is why no one believes the VA cares about the Veterans it is supposed to support.  Not only was this person wrong. she is also pretty ignorant and does not know how to do her job.  There is case law that requires the VA to consider Lay statements.  Not only are they required to consider them if they deem them "worthless" like this person has done they have to specifically say why. 

Now I could be wrong on this so I am going to research it further.  I remember reading somewhere and there is case law to support it but the VA is required to tell you that Lay Statements can support your claim as part of it's duty to assist.  If I am wrong on that someone can correct me and I will continue to try and back this up with some facts.

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I had lay statements that the RO ignored when they made their original decisions.  The BVA took them to task for not reading my lay statements.  One was from my former employer.  Anyone who tells you they are worthless is not playing with all the information or fibbing.  Especially check the last one, it notes the precedents.

https://www.veteranslawblog.org/lay-evidence-in-a-va-claim/

https://www.military.com/militaryadvantage/2011/10/disability-claims-and-lay-evidence-they-work

https://www.avvo.com/legal-guides/ugc/guide-to-use-of-lay-evidence-in-veterans-benefits-claims

https://www.hillandponton.com/using-lay-evidence-support-disability-claim/

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Congratulations SwiftSig! I admire your hard work, willingness to ask for help (which takes guts in my book), and discipline to do your part, like organizing everything per your service officer's suggestion. Not an easy task when you are, after all, having to cope with several disabilities and the added stress of the arduous claims process. 

And it is heartening to hear that 83% of the VA examiners you saw did their homework and treated you with the respect you deserve. Of course, 83% means there's room for improvement, but really that's not too bad for a huge bureaucracy like the VA, and considering that being a C&P examiner is one of the more difficult jobs at VHA. 

~ Mark

P.S. Lest anyone think I am an apologist for the VA, you should know (and many of you already know) that I am not shy about criticizing the Department of Veterans Affairs. Case in point is a 97-page "white paper", Psych C&P Exams Are Unfair to Veterans, which I submitted to the federal Advisory Committee on Disability Compensation and posted online for anyone to read (or scan, it is a bit dense ;-). 

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As a layperson, the appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability. VA has a duty to inform a claimant that lay evidence may be submitted to associate symptoms of disability to military service.

Case law on this is Washington v. Nicholson, 21 Vet.App. 191 (2007)

SwiftSig regardless of what the examiner said make sure you upload every lay statement you have in support of your claim.  I will not speak to the credibility to what is in them as I am not privy to what was written but at a minimum they are required to be considered.  That is a matter of law.

 

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Lay statements from my spouse and friends  the VA has always considered them. ( I used nototrized  statements)

Without going into a long long statement  just simple statements from each one  to the point you want to make.

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2 minutes ago, Buck52 said:

Lay statements from my spouse and friends  the VA has always considered them. ( I used nototrized  statements)

Without going into a long long statement  just simple statements from each one  to the point you want to make.

Buck did you put specific dates or date ranges?  My wife made the comment while starting a letter for me.  She asked me about dates and said she could not pinpoint dates because she sees my symptoms pretty much ever day and they have been ongoing for years.

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2 minutes ago, Buck52 said:

No specific dates  just  things like that ''since we were married  and after  ect,,,ect,'',, she did put how long we been married  & both firsts marriages  and how long we been married  back then 2002 it was 28 years  we been married 45 years coming up on #46

she also stated she wanted to make it clear she is not a Dr or Medical Professional, but has known me for a long long time and was around me every day since Military...and has notice some changes in my behavior and went with me to my check up appointment to VA PCP one time and ask the Dr About it (my behavior) is there anything you can do to help him?  The PCP Notice my behavior too  the PCP referred me to the MH Clinic  and the rest is history. 

Awesome.  Thanks....this helps a lot.

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Kinda surprised all of my C&P’s came back with At least likely as not in them and more likely than not.

Maybe that’s good news for me. Either it’s been a heck of a process.

Thank you everyone for your help.

Sig

Edited by SwiftSig (see edit history)
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