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Rivet62

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Has anyone seen this? It's for upgrading to P&T.

How to Write a Powerful VA Permanent Disability Letter (4-Step Process), published January 4, 2022

https://vaclaimsinsider.com/va-permanent-disability-letter/

What are your thoughts on this?  I'm working with an attorney for increases and/or TDIU P&T and so I would probably move letters like this through him in the form of a personal statement perhaps, but what are your thoughts on these sample letters?

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My thoughts are that "evidence" wins claims, and "statements" made by the Veteran are only effective in certain circumstances.    I am reluctant to suggest the Veteran "offer opinions" to the VA, especially if these opinions differ widely from the medical evidence, or can not be substantiated.  

Remember, a "lay opinion" cant be used as medical evidence.  

Let me give a couple examples of "lay opinions" or medical evidence:

1.  Lay opinion of value:  I had complaints of my snoring in service.  This is a lay opinion, and the Veteran "is competent" to report individuals who complained of their snoring.  Of course, the Veteran is not qualified/competent to opine his sleep apnea is at least as likely as not caused in military service.  

2.  Unusable lay opinion:  "I think I should be P and T". You are not able to make a medical opinion.

Its unusable because you are not a medical professional and your opinion on the severity, or lack thereof, of your conditions, does not meed evidence requirements.  

3.  Probably usable opinion:  "I think I should be P and T because: (see the following examples of what I call are usable or unusable opinions, and why). 

a.  My doctor, (doc's name), on March 15, 2009, told me I was no longer able to work, and needed to retire on disability.  Exam enclosed.  

b.  My wife has had to hire people to cut the grass, wash the windows, and even help me out of the bathtub.   (letter from spouse enclosed).  You see, the difference here, is that your wife IS competent to testify you are not cutting the grass anymore, but she is not competent to "declare you P and T".  Its lay evidence, and the court has said the board "can not dismiss lay evidence based "solely" on the fact that the Veteran has a personal interest in the outcome".  But, again, your wife can not diagnose, treat you, or even offer a valuable medical opinion, but she can testify that she saw events like she took you to the doctor for a possible broken leg, or that you quit cutting the grass because you reported that cutting the grass caused knee pain.  

    My personal example:  In my appeal of denial for hearing loss, I enclosed a map showing my duty stations close proximity to the airport.  I testified that "airplanes frequently flew overhead" and that the noise was so loud we could not hear each other's conversation until the airplane passed.  Planes went overhead about every 4 minutes or so, except in the late night hours.  

    The board said that they found my testimony credible, and consistent with the facts.  I was awarded SC for hearing loss.  

 

Edited by broncovet
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2 hours ago, broncovet said:

Let me give a couple examples of "lay opinions" or medical evidence:

This is brilliantly broken down to guide me going forward. Thank you!  Yeah I kind of felt it's not my place to play doctor or attorney, but your explanations of usable lay evidence vs unusable lay opinions really clears up the differences.

BTW I just got my 'big white envelope,' and it's either the long awaited SOC or long awaited BVA hearing decision. Almost too afraid to open it.  

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To add to @broncovet's excellent response...

A fellow servicemember, friend, or relative can provide a lay statement opinion for various purposes:
- How someone behaved before joining, being deployed, or being injured vs. how they behave now
- Eyewitness statements who saw something happen directly

The most unusual lay statement I ever heard about involved the BVA overturning the VARO's denial because the veteran provided a self-diagnosis and nexus statement. Turns out the veteran was in fact an licensed MD and the BVA deemed them to be a qualified health care professional. Of course, that was way back before the new AMA claims/appeals processes went into effect in early 2019. No telling how they might handle the same situation today.

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Family members can provide lay statements also. I had a vet that went off to the Army. When he came back his entire family noticed a substantial change in his behavior. The vet fell out during shots and was hospitalized for anaphylactic shock from it. He suffered BPII from this and was never the same.
 Two of the family members wrote lay statements describing their sibling as a strong leader who worked hard before he left, and was bats**t crazy when he returned home.  His entire enlistment was less than 60 days (we won 100% P&T 31 years post discharge).

 

Do not underestimate the power of lay statements. Lay statements are evidence and the RO "must" recognize any issue brought up in them. Eyewitness testimony is competent unless otherwise noted, and the RO cannot arbitrarily say it is not competent without a reason and basis, so the reason must be put in the decision.

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I agree that lay statements/buddy letters can be very probative to winning a favorable decision. It is evidence. For those few disabilities where the veteran is providing the objective evidence besides a C&P exam, like tinnitus, it is critical. Unfortunately, the Agency doesn't often give it much weight way too often. But if you run it up the pole to the BVA, they are more inclidnd to more carefully review it as important evidence, as the law provides. In fact, I believe a veteran should submit a lay statement on just about ANY disability claim they go after IMHO.

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