If Lawyers could charge by the word, we could charge a lot for the word credibility. Take this statement for example:
“The Board concludes that the Veteran’s statements are not credible”
Have you seen that phrase in your BVA Decision? Or in a Ratings Decision from the VA Regional Office? If so, I’m willing to bet it made you mad: “How dare they call me a liar” might have been your angry response.
Well, don’t worry too much – most findings like that are not calling a witness or a Veteran a “liar”.
Legal credibility refers to something much different than lying or truth-telling. Legal Credibility is basically a 100 dollar lawyer word for “believable”.
If a certain fact or statement “passes muster” or “makes sense” it is said in the law to be credible.
This is dangerous, in a legal setting, because we all know that one man’s common sense is another man’s treason.
So over the years, Courts have figured out ways to make credibility far more complicated than it has to be.
In this post, I’m going to show you a simple way to argue whether evidence in a VA Claim is credible or not credible, using the fancy $100 lawyer words.
But first, let me set the stage and explain what I’m talking about.
Credibility is 1 of the 5 Stars of VA Claims Evidence.
When we talk about the 8 steps to improving a VA Claim, we recognize that the 5th step is to build your VA claim with “5 Star Evidence”.
In short, your evidence must be competent, credible, probative, material and relevant.
SCRREEEEECH. (That’s the sound of squealing tires, by the way).
What on earth is that mouthful of legalese!?
This is one thing that frustrates me about the VA Claims Process – the Board and Courts make sure to use any manner of legal gyration to achieve the result they want, but then never explain what it means to the average Veteran, who probably could care less about the finer distinctions of material versus probative evidence.
That’s what the Veterans Law Blog is here for.
We want to take the legalese out of the process and explain what all this stuff means. So that Veterans are more capable of improving their own VA Claim, or understanding what their VSO is – or is not – doing.
A more informed Veteran means a more efficient claims process – for the Veteran!
We tackle each of the 5-Stars of evidence in separate posts.
In this post, I want to give you a high-level overview of what it means for evidence to be credible.
Legal credibility is no different than credibility in the real world.
It is, in its simplest sense, a “bulls**t” meter.
When someone tells you something – anything – you evaluate whether they know what they are talking about by – consciously or sub-consciously, considering these 3 things.
Perception:
If someone saw, witnessed, or experienced something, they are far more credible than someone who didn’t see or witness something.
Here’s my favorite example.
You go in to get surgery on your appendix, but are under anesthesia. During that surgery, the doctor used a dirty rag to clean the incision and you got an infection.
At the trial, if you testify that the doctor used a dirty rag, your testimony will not be credible – you were under anesthesia and could not see the incident.
Doesn’t mean you are lying – has nothing to do with lying – it just means that your testimony about what you could not actually observe is less credible than someone that could actually observe that same incident
Bias:
Something that is said by a person with an interest in the outcome is less credible than something said by someone without a dog in the fight.
It’s hard to find bias in a VA Claim – the closest you can come is arguing that a particular doctor had a vested interest in the outcome of the C&P exam (other than the fact that his bread is buttered by the bureaucracy that denied your claim, ironically).
Integrity:
This isn’t integrity like “truth-telling”, or “honest”, though sometimes it could be. It’s the integrity of a set of facts. You know that feeling where something about a buddy’s story “doesn’t add up”? It’s usually because there is a fact in the chain missing: because a fact in the story feels like it is missing, the story doesn’t have integrity.
Architects talk about structural integrity – the ability of a building to hold itself together. When the hull of a ship is breached, it has lost its integrity – its ability to stay together.
Here’s an example. Your are trying to get a presumption of exposure to Agent Orange based on having boots-on-the ground in Vietnam as you passed through on a return stateside from your military base in Thailand. You tell an elaborate story of how you passed through the Republic of Vietnam, including how you have Vietnamese currency from a purchase you made there. Problem is, the currency’s date is after the date you said you were there.
Because of that one fact, your story doesn’t have integrity.
The above scenario may have happened exactly as you said. The fact that it lacks integrity doesn’t mean you’re lying. Doesn’t have anything to do with lying or truth-telling. Its just that all the facts don’t add up the way you told it.
Although a couple months ago, I read this outstanding blog post by a lawyer who makes a compelling case for truth-telling as a component of integrity.
VA Claims Credibility in 3 Steps:
To check whether your VA Claims evidence is Credible, ask yourself these 3 questions:
1) Did the person asserting the fact (you, or a doctor in a note found in a military medical record from 3o years ago) have the ability to witness the thing he/she is asserting? (Perception)
2) Did the person asserting the fact have an interest in the outcome (other than you, the Veteran – the VA can’t consider that fact), or an interest in telling an untruth? (Bias)
3) Does the fact being asserted in the evidence have “structural integrity” with the rest of the facts? (Integrity)
2 Tips that Will Add a “Credibility Boost” to your Lay Evidence:
Tip #1: Change the Form that you use to Submit your Lay Evidence.
Most Veterans use VA Form 21-4138 (Statement in Support of Claim) to submit their Lay Evidence. And most Veterans overuse this form – to the point that Raters, DROs and Judges are all numb to it.
If I see another VA Form 21-4138 in a C-File, I think I’m going to….well, read this post and find out.
The VA Form 21-4138 is just a blank piece of paper – in reality, it has as much legal value in your VA Claim as a postcard from your Mom’s last visit to San Francisco. In other words, none.
A BVA judge is going to give evidence that is sworn “under penalty of perjury” more weight than evidence that is just “true and correct to the best of my knowledge” (the language in the VA Form 21-4138).
That’s why I recommend that Veterans use this Sworn Declaration instead of the VA Form 21-4138.
Tip #2: Corroborate any Lay Evidence you Submit.
If more than one lay witness – or more than one piece of lay evidence – reinforces the same fact, than it is said in the law to be a corroborated fact.
Corroborated facts are more reliable because they remove the 3 problems above (Perception problems, bias problems, and factual integrity) from the equation.
But it’s not enough to just have more than one witness say the same thing. Corroboration is so much more than that.
To properly corroborate Lay Evidence demonstrating the facts of the Impairment Rating Pillar, for example, you have to fortify the Veteran’s statement with additional evidence of the Frequency, Chronology, and Severity of the Symptoms and Limitations that the Veteran experiences.
I show Veterans how to do this when developing their own claims and appeals in this Training Program and Guidebooks: How to File a VA Claim
