I’ve talk a lot about Lay Evidence on the Veterans Law Blog. In just about every VA claim – including the VA TDIU claim – lay evidence has a Pure Raw Power.
Today, I want to give you some tips for using Lay Evidence in a TDIU Claim.
5 Tips for Using Lay Evidence in a VA TDIU Claim or Appeal.
Here are 5 tips to help you:
1) Load your TDIU Claim with 5-Star Lay evidence.
Lay evidence is powerful, because favorable lay evidence requires that the VA and BVA address it specifically in their decision. The more favorable lay evidence you have, the harder it becomes to deny your claim.
I use the Sworn Declaration – so my clients don’t even have to pay for a notary. (I’ve added this Form – and a couple worksheets) to the VA TDIU eBook – see below for more information).
What types of Lay Evidence should you include in your C-File?
For starters, lay evidence that demonstrates where the symptoms appear in your daily life. If you experience the symptoms of your condition at work, have a witness who has observed those symptoms tell about it in a Sworn Declaration.
Add in lay evidence showing the daily limitations you face from your service-connected disability (problems walking, sitting, standing, eating, breathing, talking, communicating with others, lifting, twisting, turning, carrying, hauling, driving, seeing, hearing – you name it).
What is the difference between symptoms and limitations? Symptoms are those things that tell you – and those around you – that you have a specific medical condition. Limitations are the things that you cannot do because of your medical condition.
This is not the place to be brief or vague – use the Lay Evidence Worksheets in the TDIU eBook (See below) to figure out who can help you with Lay Evidence of these limitations.
2) Lay evidence Works Best When Used in Conjunction with Medical Evidence.
We talked about this the other day on the Veterans Law Blog – but Medical Evidence is the rifle that puts the Lay Evidence on “target”. By themselves, Lay and Medical evidence are worthless.
Together, they are Steroids – especially for the TDIU claim.
Why? Consider this.
If you submit a whole bunch of statements about how your service-connected disability limits your ability to work, what is the VA rater going to do with it? One of 2 things:
Option 1: They are going to scratch their head, and say “Well connecting all these dots sure seems like a lot of work, let me set this claim aside and work on it later.” 2 years later, your C-File is lost in this kind of a mess, and you are writing letters to your Congressman (who sees no value helping you unless you have same campaign cash for him/her).
Option 2: They are going to send your C-File off to a medical examiner – a C&P Examiner – who according to 38 CFR 4.10 is responsible for providing a full description of the effects of your condition on your ordinary activities.
If they don’t consider the lay evidence, you may well have an inadequate exam that can be challenged later….there is no need to remind you that Junk Science has invaded C&P Exams, especially in the TDIU claim. Or, the examiner follows 38 CFR 4.2 and reconciles the wealth of lay evidence into a medical report that accurately reflects the elements of the disability present.
I don’t know about you, but I’ll take Option 2 any day of the week.
Ultimately, however, my point is this: Lay evidence does NOTHING by itself – it needs medical evidence to have the full effect.
Medical evidence – without lay evidence – is not the full picture of the Veteran’s condition because it is based on one tiny little aspect of the Veteran’s life – the 15 or 30 minutes that he or she was in the C&P Examiner’s office.
3) Make sure your statements are specific and clear.
Its not enough to say that you can’t work and leave the VA to deduce the conclusion. This is hiding the needle in the haystack.
I remember reading one C-File for a Veteran seeking TDIU. Here is the full extent of the lay evidence he gave the VA (I’m paraphrasing, but not much).:
“I used to be a tow truck driver. The Vietnam War screwed up my knees, and now I can’t work. I want you to think about how you would be a tow truck driver with knees as bad as mine, and then deny my claim again. I dare you.”
It’s a good point – a great point. I don’t know how you handle all of the work of a tow truck driver with knees as bad as this Veteran’s.
But the law doesn’t work on “good points” and “zingers” – Law & Order, Boston Legal, and a host of other TV shows about the law do us a great disservice by suggesting that the side that gets the best “one-line” zinger wins.
For TDIU Claims in particular – use the Lay Evidence Worksheets and the Sworn Declaration form that I have added to the TDIU eBook (Use link below for a Special Discount).
4) Know your Role in the TDIU Claims Process.
While Jandreau says that Lay evidence is competent to identify symptomatology of a condition – and a bunch of other things – it does not give a lay person the power to express a professional medical opinion.
Here is the Veteran’s job in a TDIU Claim – or any VA Disability Claim for that matter:
Your job is to describe and document the symptoms of your service-connected conditions, and the daily limitations you face because of them.
Your job is to make sure that the evidence you submit in your VA Claim is 5-Star Evidence.
Your job is to make sure that you submit ENOUGH 5-Star Evidence in your VA Claim.
The doctor’s job is to explain how those symptoms and limitations keep you from engaging in a substantially gainful activity.
It’s THAT simple.
5) Be patient – and DO IT RIGHT the FIRST TIME.
Barking at, and lecturing, VA employees and C&P examiners is easy.
Anyone can do it.
The problem is, barking at VA employees doesn’t help your claim. Frankly, “Kissing Ass” doesn’t work either. You know what does work?
Here are 3 things:
→ Don’t Be a Hater.
Your frustration with the VA Claims Process is legitimate. You have every right to be angry – to feel betrayed.
That said, see if you can set aside the rancor and hatred of a VBA bureaucracy that is maddeningly complex and infuriatingly slow, and treat the VA employees with civility – whether you like them or not.
I struggled with the same anger, frustration and betrayal that you did.
And it damn near caused me to give up my law practice more than once. But then I realized that if I focused on finding the 1 person that would help me, I could suffer through the 25 bone-heads that only “talk-the-talk” when it comes to supporting Veterans.
→ Help the VA to Help You.
Take a step back, realize that 2 things that the VA and BVA struggles with the most are:
1) the TDIU claim, and
2) lay evidence.
Stay objective, follow the steps in the TDIU Field Manuals, and learn to HELP the VA understand the evidence by writing more persuasive claims.
→ File Your TDIU Claim the RIGHT Way – from the Start.
I had an NCO that used to say this to the new boots that came in our unit, fresh out of AIT and Basic: “It’s ALWAYS harder to unkill yourself ….which means it is always easier NOT to do Stupid S**t”.
That’s equally true forVA Claims for TDIU – learn how to build your claim the right way – the first time.
This book gave me the knowledge and faith that I have done the right things to be successfully evaluated.”
Gary A. (Vietnam Veteran)