duty to assist

Veterans ask me this question all the time:  “Why do I have to change? Doesn’t the VA have a “Duty to Assist” me in my VA Claim?  Why can’t they get their act together?”

Let me answer that question with a story.

A friend of mine is a psychologist, and does a lot of couples therapy.

In the early sessions of working with a couple in a strained marriage, he says this question invariably comes  from one of the spouses:

“Why do I have to be the one to change?”

He gives 2 reasons in his answer:

“1) You are miserable. Unless you are happy being miserable, why wouldn’t you WANT to change?

2) The law of relationships states that if one person in a relationship changes, in time, the other will change to.”

His answer applies to most Veterans’ feelings about the VA.

To change the way we experience the VA Claims process, we have to – very simply – change the way that we experience the VA Claims process.  We have to approach our cases with a new “paradigm” (link to definition) – one that says that WE are in control of our claim.

Here are a few things that you can do NOW to create a new paradigm and take back the power in your claim.

 

1) Get a copy of your Claims File (C-File).

Veterans that don’t know what is in their C-File will move through the VA Claims process on the VA’s timeline, and in the VA’s way.

I believe that the single most important factor in achieving better results from the VA starts with having a copy of your C-File.

Every single VA employee that plays a role in deciding your claim is going to be looking at it.

Every VA Rater, Every DRO, Every BVA Judge will have access to this file – and will make their decisions based on what is (and what is NOT) in it.

Why wouldn’t you be FIGHTING to get a copy of your C-File right now?

2) Stop waiting on the VA to get evidence for you.

Yes, the VA has a Duty to Assist a Veteran in locating the evidence to support their claim.

That Duty to Assist is a useful tool for getting a case remanded on appeal to the CAVC (I can’t recall the last time the BVA found that it violated the Duty to Assist, even though the CAVC disagrees).

Other than that, the Duty to Assist is pretty much useless at the VA Regional Office.

It has no teeth.

Frankly, the degree of individualized assistance that the law requires is not something that a large bureaucracy can — realistically — do quickly, efficiently, or for that matter, properly.

I tell Veterans and attorneys all the time – do not confuse the VA’s Duty to Assist with Actual Assistance.

If you know there is evidence out there to support your claim, go out and get it.  Heck, even when the VA gets it for you, it seems like they cherry-pick the portions of that evidence that most support denial.

If you need a medical opinion, or medical records, or service records, you are going to find much greater results and satisfaction if you do your own legwork.

3) Stop focusing on the problem — start being the solution.

If the problem is that the VA won’t schedule my BVA Hearing, have you called the scheduling office at the VA Regional Office?

Have you called the BVA to see if it has been certified for appeal and is even on their docket?

If the problem is that the VA is not seeing that you have a diagnosis of a particular condition, have you gone to your doctor to get a clear and straightforward letter stating the diagnosis?

If the problem is that the VA is not getting service records for you, have you done the detective work to find them yourself?

Yes, the VA and the BVA are infuriating – maddening even – bureaucracies that often don’t know their elbows from, well, you know the saying.

But what you focus on grows. Focus on the problem and it will grow.  Focus on the solution, and it will grow, too.

4) Inform yourself about the law, educate yourself on the procedure, and learn how the VA Claim process works.

There is a lot of information on the Veterans Law Blog: private email lists, and in the Veterans Law Blog bookstore.

Learn where to find BVA decisions – that way you can learn what the actual decisions say, and not  what the “jailhouse lawyer” down at the VFW hall says it says.

If you have questions, you can always submit them using the green button in the lower right corner of your screen.

Your question may into a blog post, or an ebook, or a training video.

5) Stop Complaining about what the VA isn’t doing to fulfill the Duty to Assist.  

Are  you right that the VA is a @#$* boondoggle?

A monkey @#$*’ing a football?

A travesty?

An injustice to those who served?

Here are the Answers….in order: Yes. Absolutely. Definitely. Most Certainly.

Even if you  aren’t right, I’m not going to argue with you or defend the VA.

But, like a spouse’s bad habits, does complaining ever work?

Not with my wife, that’s for sure.

I still reserve the right to make snarky comments about the VA, and I do have a strong resentment for things that they have done and things that they have not done (like lying to my grandmother and denying her access to life-changing assistance as the surviving spouse of a WW2 Combat Veteran).

I certainly intend to speak my mind when I think a Lone Ranger Bureaucrat stands in the way of large groups of Veterans getting benefits that they are legally entitled to, but complaining about the VA’s shortcomings are a thing of the past for me.

But if you see me complaining for the sake of complaining – call me on it.

In the end, the VA isn’t going to change itself.

 Congress isn’t going to change it, and you can bet the American people don’t even understand the depth of the problem, no less how to fix it.

If you want to change the way you experience the VA Claims process, we have to first change ourselves.

Don’t drink the Kool-Aid – you are NOT a victim of the VA.

You are a soldier who stood in defense of our nation – you have the skill, the tools,  the knowledge and the “intestinal fortitude” to push a claim for benefits through a goofy bureaucracy.

 

3 Comments

  1. Ron

    you are 100% right, but I have asked for copies of my c-file 2 different times in 2014 and was told that the RO had them and I could not get them.So my lawyer requested them in september 2014 an as of 4/8/2015 has yet to get them. So, on 4/8/2015 I called Congressman Paul Gosar office as asked for help in this matter, I hope this will be a change for the better, we will see that’s for sure!!!

    Reply
  2. Ovez Japanwalla

    Dear Chris
    I really cherish your information.
    Just to let you know what is still out there.
    Despite the scandal about scheduling appointments, It is actually worse for some.

    I have had many troubles with VA in NY regional Office.
    Have had claims for worsening seizure disorder with stingiest medicine at levels for which is not even known the right therapeutic dose.

    I moved from New York to Easton Pennsylvania after my house was foreclosed, ( even when my claims were placed on Expedited Status.)
    Cost of living was assumed to be lower, not so.
    I stillcannotteansfer my care at the Philadelphia VAMC, because:
    Tried to register by phone, nobody really knew the procedure, only to call Admissions or Registration, repeated calls, no answer, left messages.
    Do not drive, cars are broken so have to rent car.
    Drawn out process, still without meds.
    Prior to move, treated at Bronx NY VAMC, since same problem with transportation, missed appointments, Doctor terminated my ant-convulsant medications.
    Still trying to get to Philadelphia from Easton, is 90 miles.
    Only recourse is to show up, sign release, another appointment is not available for two months in Primary Care then another two months for neurology.
    Spouse not willing to drive, taking bus would be arduous.
    At Stand Down, got cards from Social worker to call and get seen at clinic, at least. Never calls back.
    PA Veterans Agency says to leave claims at NY Regional.
    Have cases that were certified to go to BVA , did get decision in June, denied for many , $ 16,000 when retroactive should be about $200,000.
    Just to let you know.
    I will order my C-File because decision actually states did receive reports from private neurologist, inability to work, yet Toral unemployability denied.

    Keep up with the info, it’s priceless, Chris.’

    Ovez Japanwalla, Esq.
    NY Admitted.

    Reply
    • Chris Attig

      Ovez,

      Even though I like the direction that things seem to be heading with the new VA Secretary – Read what happened when I contacted him directly about a case – I agree with you that many Veterans are still as hamstrung as ever by the VA Claims process.

      That’s why you can expect MORE information about the VA Claims Process from the Veterans Law Blog in 2015!

      Chris

      Reply

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