Does your statement matter?

[Phury & Rhage]

When you submit a written statement to support your compensation claim, it's called a "lay statement".  There are specific things that you are considered competent to say about your claim.  Symptoms, events, and emotions are some of the things you can describe.  The VA has to consider what you say.  When you give a statement - it's evidence.  Why is that important?  If you receive a rating decision and it says "there is no evidence that your disability began in service"...  And, you gave a written statement that described how your condition started in service?  VA got it wrong.  This doesn't just apply to the people rating your claim.  It applies to the doctors who write the opinions about service connection.  They also have to consider your statement.  They can't discard it because they want to see "objective" evidence.

Here's a quote from a recent decision by the Court of Appeals for Veterans Claims, "the examiner was required to consider the lay statements establishing the various symptoms appellant exhibited."  Crawford v. Wilkie.  I'm attaching the decision as well.

Remember the Benefit of the Doubt doctrine?  Your statement, your spouse's statement, and any buddy statements are evidence in your favor.  Evidence in your favor must be considered and can't be rejected unless there is evidence to counter it.  Look at the list of evidence the VA used in making their decision.  It has it's own section on the decision.  Look for your statement.  Compare what you said in your statement to what the VA said in their denial.  They have to address favorable evidence and explain how/why it is outweighed by other evidence.  By the way, absence of written documentation in your service treatment records is not "evidence" that your condition didn't occur in service.  The Court has made it very clear that the VA can't use the absence of evidence in the records to deny your claim.

If the denial didn't address your statement and other positive evidence, ask for a review - Supplemental or Higher-level depending on your case timeline.

Don't give up.

Crawford v Wilkie No 18-1528.pdf

[Richard1954]

Its true a lay statement is evidence  and it must be considered but   a  lay statements will never carry the weight of a medical professional's opinion... no matter how detailed the lay statement is....

This not to say that a bad C/P exam or professional opinion cannot be over come...  But the veteran will have to pick apart the examination and the opinion, sometimes just submitting medical studies found on the internet can help overcome an opinion, but the best thing to overcome a C/P examiner  statement is to be armed with an Independent medical opinion.

I have a situation right now were some of the information in my statement was overlooked  ,  the rating guidelines are clear,  and if a doctor leaves out an important fact  ( as they did in my case ) regardless of my  statement  I will be rated without that fact and it will effect the rating I  get...  I have already perfected the appeal  based on the results of the C/P examination, and I don't even have rating or denial yet, but I see it coming.....

[Phury & Rhage]

That's true enough.  Actually, I'm talking about appeals (not real clear about that, lol) because they are what I'm more...familiar...with.  It's possible to get the right result the 1st time, but I think it's rare.  Of course, you have to have the right facts, but then it's a matter of getting it in front of the right decision-maker.  In my opinion, with an AMA-eligible rating decision. you go for the higher-level review.  I think the odds of getting the right decision-maker are better since the claim goes straight to a DRO in one of 2 locations, where that's all they''re doing.  I know you can ask for that review from BVA, but I'm not sold on them.  Every day, I read where the CAVC smacks the snot out of them.  I don't have an active case at the moment, but if I did, I'd go to the DRO.  If that didn't work, I'm going to the CAVC and praying to get Judge Greenberg.

I wish you the very best with your case and I hope you get the right result earlier rather than later.

And, "independent" medical opinions are great!  It's especially useful if you can get your VA treatment provider to fill out the DBQ.  They have access to the same stuff as VA C&P examiners and they have access to MORE of your records than the contract examiners.  Make sure they will state that they reviewed your service treatment records as well.  It's tough for the VA to counter that in a battle of the opinions.

[kanewnut]

20 hours ago, Phury & Rhage said:

In my opinion, with an AMA-eligible rating decision. you go for the higher-level review.  I think the odds of getting the right decision-maker are better since the claim goes straight to a DRO in one of 2 locations, where that's all they''re doing.  I know you can ask for that review from BVA, but I'm not sold on them.

I am confused. Are you saying there are only two locations doing higher level reviews? Are you saying you can ask the BVA for a higher level review?

 

20 hours ago, Phury & Rhage said:

I don't have an active case at the moment, but if I did, I'd go to the DRO.  If that didn't work, I'm going to the CAVC and praying to get Judge Greenberg.

I am confused. Are you going straight to the CAVC from the DRO? I guess it would be nice if we got to pick who decides our cases.

[Phury & Rhage]

Yes, there are only 2 locations doing HLRs - Here's the reference in the M21-1:

I.6.1.d.  Who May Conduct HLRs - Experienced adjudicators who did not participate in the prior decisions will conduct HLRs.  Decision Review Officers (DROs) at decision review operations centers (DROCs) have the authority to conduct HLRs for compensation rating issues.   There are only 2 DROCs - Seattle and St. Petersburg, Florida.  As you can imagine, there is a distinct advantage to getting your claim before folks who are specializing in a particular process.  SUPER IMPORTANT:  HLRs are a CLOSED record review.  You can ask for an Informal Conference (phone call with you or your POA) with the DRO, where you can discuss your claim, but no evidence is allowed to be reviewed if it was added after the date of the decision.  If you have new evidence, you file a Supplemental Claim - end of story.  HLRs are the s***!  You get a personalized review of the issue/decision, where the DRO is authorized to change the decision based on a difference in opinion.  That is a rare opportunity and is new to the appeals process.  Used to be, the decision-maker had to find something wrong with the decision to change it. Yes, you can request the same thing from the BVA.  Two major differences:  1) the form you use is the VA Form 10182 - gives you the same options as the 2 non-BVA forms (0995, 0996) and that is an HLR with or without an informal conference and a review that involves submitting new evidence; and 2) I don't know anything about their processing, so I can't tell you how well it's working.  I can quote the manual and tell you how it's supposed to work, but not how it actually does work. I'll address the 2nd part after...work

[kanewnut]

11 hours ago, Phury & Rhage said:

There are only 2 DROCs - Seattle and St. Petersburg, Florida.

I thought this was BS, but I have looked and learned something.

The current DROC structure assigns 53 DROs and 101 journey-level RVSRs to work higher- level reviews. These employees will be centralized at DROC locations in St. Petersburg, Florida, and SeaTac, Washington. Utilizing this breakout, approximately 35 percent of the higher-level reviewers assigned to DROCs will have been DROs on the day before the new system takes effect.

Thanks.

[kanewnut]

On 7/3/2019 at 9:09 AM, Phury & Rhage said:

I'll address the 2nd part after...work

Please address this when you have the time.