Al Walsh

I’m dealing with a higher-level review in a case I’m working on right now, and it’s one of those decisions where, it’s so bad, you think the higher-level review was a waste of time. Now I talk to veterans and other veterans advocates who think higher-level reviews are always a waste of time. I don’t put myself in that camp, but I got a pretty hard pull in that direction with that decision I read yesterday.

This isn’t the first time I’ve gone down this road. It’s a pretty normal human reaction when you get a higher-level review back, and it’s nothing but a copy and paste of the original decision. But as I wanted to talk a little bit more about my thought process and how I approach higher-level reviews. At least for now. My thoughts on this evolve all the time.

The first thing to think about is what are your options. If a higher-level review is on the table, so is a supplemental claim, and so is an appeal to the BVA. The second thing to think about is whether you need any new evidence to prove your claim. The answer to that is going to remove one of your options because if you are going to add new (and relevant) evidence, you can’t file a higher-level review, and if you aren’t adding new evidence, you can’t file a supplemental claim. Actually, you can file either one. When I say you can’t, what I really mean is the VA will reject them.

So if you don’t need new evidence, your options are higher-level review or appeal to the Board of Veterans Appeals. Here, the huge consideration is that an appeal to the Board will take at least one year. At least. For me, this is where the higher-level review becomes attractive. I am optimistic by nature, and I always think that I can very persuasively point to the controlling law, point to the evidence and the obvious errors, and the VA will do the right thing. I know some of you cynical veterans won’t believe it but, sometimes that works. Other times it doesn’t work at all. You just never know who that higher-level review is going to be and whether they even read what you send them.

But I just have a hard time sending a case to the BVA when I think there’s a chance to get a faster win for a Veteran. The other thing about deciding which of these options to take is, the Board isn’t perfect either. You never know what’s going to come out of a board decision, and once the Board has weighed in negatively on the facts of your case, that can be a harder challenge to get around.

It may help to think of this as a continuum. On one side, you have simple and obvious mistakes. On the other side, you have very technical legal mistakes. If there is anything on that simple and obvious side, I’m going to lean towards an HLR. A classic example is a duty to assist error. It’s very frustrating when you wait a year, and the Board kicks your claim all the way back to the beginning because the original decision had a duty to assist error. Another one is things the VA is supposed to put in the decision that they didn’t put in the decision. Lack of favorable findings is a common one there. I don’t like to take those issues to the Board because I’m always worried the Board is going to find that error and just kick it back without ever dealing with the other, more serious errors.

So I’m still in the HLRs are not a waste of time, at least for some situations. I hope that helps you think through your own decisions on a higher-level review. If you want me to help you with your claim, feel free to set up a call with me through my website.

About four years ago I submitted a request to the National Personnel Records Center (NPRC) to get copies of all my military service records. I think it took a couple of months but, I don’t really remember. I did it mostly because wanted to know what was in there and have my own copies. A lot of veterans need those records for evidence to help prove their VA claims. But as of the middle of 2021 and off into the foreseeable future, I hope you aren’t one of those veterans that needs your records from the NPRC.

The NPRC is part of the National Archives and Records Administration (NARA). When you submit a claim for VA Benefits, if you need more evidence to prove your claim and that evidence is in your service records, you can ask the VA, to pull your records from the NPRC. The VA may also submit a request to the NPRC on its own.

The problem right now, and again into the foreseeable future, is that the NPRC basically shut down when everything else did because of COVID, and as of March 2021, they were still only had 25% of their people. Now, just because the NPRC shut down, doesn’t mean veteran’s stopped and the VA stopped requesting records. A few members of Congress sent a letter to the Secretary of Defense on the subject asking the DOD to help the NARA. That letter noted that as of May 20, 2021, there were over 500,000 delayed requests and a backlog of over 400,000 records that need to be refiled. And further on, that letter states the NPRC is only processing emergency requests and it will likely take two years to resolve the backlog.

This is a total failure. I’m not trying to villainize the individuals who work at the NPRC. What I’m saying is, regardless of the cause, it is an institutional failure for a Veteran to have to wait two years, likely longer, to get information from the NPRC that they need to support their claims. Remember, we’re not talking about two years to get a decision from the VA, that’s two years before the VA has evidence it needs to process the claim. I’m working with a veteran right now in this situation and the VA won’t even give him a C&P exam until they get the NPRC records even though there’s enough evidence as is to justify a C&P exam right now.

What can you do about it? First, know exactly what evidence you need to support your claim and whether you need service records. If you need service records, try to get them from somewhere else if you can. You can try milConnect to see if they have the records you need. The NPRC is trying to help. On their website, they have a table that explains where to go and ask for your service medical records depending on your branch and dates of service. You can also go straight to the military hospital where you were treated and see if your records are there. And you can try to make up for the lack of personnel records with buddy statements. There’s not a perfect solution here, but I hope it helps. As always if you want me to help you with this or any other VA problem, you can set up a call with me or reach out to me through my website.

Thank you to Yangc 350, whose comments on another video made me think that I should talk a little bit about how our reserve and national guard brothers and sisters should approach their disability claims.

The first thing to know is that all of the basic elements are the same. You still have to prove that you currently have a disability, there must be some event, injury, or illness from your service, and you have to prove a causal connection between that event, injury, or illness and your current disability. That last one is often called the nexus.

But for guard and reserve members, things will get difficult for you because, unlike active-duty veterans, or even active guard and reserve veterans, you have to prove that your injury or illness was caused “in the line of duty.” That means it had to have happened while you were at drill, annual training, or at some school, and most likely traveling to and from those places. Make no mistake, the VA is going to toss your claim in half a heartbeat if they think your injury was caused outside the line of duty.

So, how do you overcome that obstacle? First of all, keep every piece of paper that has anything to do with your service. Second, when it comes to proving your injury occurred in the line of duty, it’s hard to beat an actual line of duty investigation. I hope your unit does those. Beyond that, you can help prove something happened in the line of duty if the date on your medical records for an injury lines up with your orders, dates on your LES, awards, even a drill schedule is better than nothing. Basically, look for a document created by someone other than you which put you at drill when you were injured.

A note on the illness thing, under the law, there are only certain illnesses recognized as possibly being in the line of duty, heart attack, cardiac arrest, and a stroke. But I think, even if it’s something else, if you can prove it the illness was caused in the line of duty, I think you should push that claim. But only if you’re up for a very long and difficult fight.

Some final notes, if you were called to Federal active duty, for something like a deployment to Iraq or Afghanistan, during that period when you were activated, you don’t have to prove the line of duty part, the active-duty rules apply, just like they do for active-duty soldiers. But, if your state activates you for a state thing, helping out with floods or fighting fires, nothing that happens during that activation is going to count for VA disability purposes.

If you are in the guard or reserves, I hope this helps. I’m happy to make more videos answering your questions, so let me hear them in the comments. Thanks again to Yangc 350 for the idea for this video. As always, if you want me to help you with your claim, set up a call with me or email me through my website.

When you are trying to convince the VA that you have a certain disability, one of the most important tools available to you is your own statement, or the statement from your spouse, friend, boss; you get the idea… This is often called a lay statement. The VA has a form for it, called Statement in Support of Claim, which you don’t have to use, by the way. But in any case, what is a lay statement?

The answer is not as obvious as you may think. So let me start by talking about the difference between a statement and an opinion. A statement is something like, ‘I watched a guy put his head in an alligator’s mouth.’ An opinion is ‘that guy is an idiot.’ The statement is facts, and the opinion is what the facts mean when you put them all together.

I often see veterans trying to say they have diabetes, or PTSD, or something else in a lay statement. They are stating the medical diagnosis. That is an opinion. And except for some very rare instances, you, as a veteran, are not qualified to say what medical condition you have. You can say something like my psychologist diagnosed me with PTSD. But that really makes my point for me because it shows is what you really need is the treatment record or opinion letter from the psychologist.

You might be thinking, so what… It’s my statement, and I’ll say what I want. I know I have PTSD, and nobody can say otherwise. Well, here’s the risk, the VA is going to look at that statement and say, this guy’s not qualified to say he has PTSD. Therefore, his diagnosis is not credible. And if the diagnosis is not credible, the whole statement is not credible. Now the VA has just decided they don’t have to believe anything you said in your statement, and you’ve just made it easy for them to deny your claim. And not just deny your claim; you’ve made it easier for the VA to defend that denial when you appeal.

Please don’t make it easy for the VA to deny your claim. A good lay statement is crammed full of detailed facts. First things first, stick to your five senses. If you didn’t see it, smell it, touch it, hear it, or taste it, it should not be in your statement. And whatever it is that you experienced, make sure you say how often you see, smell, touch, hear, or taste it. And make sure you describe how those experiences affect your life.  

So that is a lay statement… The facts… what did you experience, how often you experienced it, and how the experience effects your life.

Don’t try to tell the VA that you have PTSD or knee instability, walk through, in great detail, what you experience and how you do your best to deal with it. Let me have your lay statement questions in the comments. If you want me to help you with your claim, you can set up a call with me or shoot me an email through my website. I am Al Walsh, a veteran who likes to help other veterans. Thanks for watching.

Let’s talk about how VA appeals can affect the effective date of your VA disability claim. Not all the things I’ll mention are technically appeals, but it’s a convenient shorthand. So we’ll use it. Let’s take a veteran, and we’ll call him Clyde. Clyde filed a VA claim on June 2, 2019, and the VA sends him a decision on October 21, 2019, denying his claim. Clyde has three options. He can file a higher-level review, a supplemental claim, or appeal to the Board of Veteran’s Appeals. As long as he does any one of those things before October 21, 2020, he will keep his effective date of June 2, 2019.

So Clyde files a Higher-level review on December 1, 2019, and gets a decision back on April 18, 2020, with another denial, now he has two options. He can file a supplemental claim or appeal to the Board of Veterans Appeals within one year. If he does either of these things within one year, he will keep his effective date of June 2, 2019. Clyde cannot file a higher-level review of a higher-level review.

But let’s switch it up. Let’s say Clyde filed a supplemental claim on December 1, 2019, and got a decision back on April 18, 2020. So now the higher-level review is back on the table, as well as another supplemental claim and an appeal to the Board of Veterans Appeals. And he has to do one of those things before April 18, 2020.

What if Clyde misses the one-year deadline, and the next time he files anything on the claim is April 25, 2021. At this point, a higher-level review and an appeal to the Board of Veteran’s appeals is off the table. He can file a supplemental claim, but because he waited over a year, Clyde’s effective date is now April 25, 2021.

I want to pause here because this sometimes trips people up. As long as you file your supplemental claims within one year of each decision, you can keep your original effective date alive. You have to meet the requirements of a supplemental claim and have new and relevant evidence, but you get the idea. As soon as you let one year pass, you can still file a supplemental claim, but now your effective date is the date of that supplemental claim.

Alright, so what about the Board of Veteran’s Appeals. Let’s say that after the VA denied Clyde’s supplemental claim on April 18, 2020, Clyde files an appeal to the Board of Veteran’s Appeals on April 15, 2021. And the VA makes a decision on June 3, 2022, finally granting his claim. However, because Clyde always took one of his options to challenge the VA’s decision within one year of each new decision, he keeps his effective date all the way back to June 2, 2019.

And he can keep going, from a Board decision, Clyde can file a supplemental claim within one year if he didn’t like the board decision. Or he can appeal to the Court of Appeals for Veterans Claims. Now for the Court, he has to file that appeal within 120 days.

I hope that helps. If you want me to help you with your VA disability claim, you can reach out to me through my website.

So you’ve filed a VA disability claim and you’ve heard that the VA will eventually pay you money for your disability benefits going back into the past, and while you’re waiting for the VA to decide… And you will wait a long time for the VA to decide, you start to wonder how far back will the VA pay you? And the answer to that depends on the effective date of your claim. I’m going to talk about effective dates using some typical examples going off the date you file, the date you separated from the military, and an intent to file.

Ok, let’s say we have a veteran, let’s call him Vinny. Now Vinny thinks he has TBI from being in an IED attack in Iraq, and he’s got a whole bunch of pain in his knee from injuries while he was in the Army, that never quite healed. Because you know how it is when you have an injury and you’re in the Army, it doesn’t matter if a bone is sticking out, someone is going to tell you you’re probably just dehydrated and need to drink more water. But back to Vinny, let’s say he files a disability claim for these disabilities on April 14, 2019.

Now, let’s say the VA makes a decision on October 4, 2019, and awards Vinny 10% for the knee and 10% for TBI. How far back will the VA pay Vinny? May 1, 2019. In this case, Vinny’s effective date is the date he filed his claim, and his payments start on the first day of the first month following his effective date. He filed his claim on April 14, 2019, so his payments start May 1, 2019. Now, let’s add some wrinkles.

What if Vinny Separated from the Army on June 18, 2018, filed the same claim on April 14, 2019, and had a decision on October 4, 2019? Vinny will get payments going back to July 1, 2018. The difference here is because if you file a disability claim within one year of getting out of the military, your effective date is the day after the date of your separation. For Vinny, his separation date, is June 18, 2018, and because he filed his claim within one year of that date, June 19, 2018 is his effective date and his payments go back to July 1, 2018.

How about another wrinkle, What if Vinny still got out of the Army on June 18, 2018, and by May of 2019, he hasn’t filed a claim, but he wants to, but he doesn’t have any of the information he needs and he’s just not ready. Vinny can file an Intent to File form. This form buys Vinny another year. He could file the intent to file on June 5, 2019, file his claim on May 10, 2020, get his decision in December 2020, and his effective date would still be the day after he left service, June 19, 2018.

Alright, so we got Vinny taken care of, for now. Vinny is totally made up, by the way, this is not any specific Veteran’s claim. Effective date issues can get very complicated very quickly. As usual, if you want me to help you out with your disability claim, you can reach out to me through the links on my website.

What do you do when you need a medical opinion to prove your disability is service-connected, but you don’t have money to hire a doctor on your own, and you don’t have insurance that will cover it. Your only option is a C&P Exam. The good news is, the VA can get you that exam, however, the VA doesn’t have an obligation to get you a medical opinion just because you filed a claim. Remember, it is your job to prove your claim. To get the VA to provide you with a C&P exam, you have to prove four things. These come from a case called McLendon v. Nicholson.

The first thing you have to do is present the VA with competent evidence of a current disability or persistent or recurrent symptoms of a disability. You providing a statement about constantly having migraines at least once a week, that takes you out for a minimum of 4 hours meets this standard. Your disability could just be migraines, it could be TBI, it could be something else. The point is, a statement from you is enough.

The second thing you have to do is prove an in-service event, injury, or disease. To stick with our example, you can get service records or a buddy statement, or your own statement, that shows, you were in a vehicle that was struck by an IED, or during a deployment, you slept right next to a flight line. I’d personally lean towards the service records, including service medical records. It’s harder for the VA to ignore those, but buddy statements should be enough.

The third thing you have to do is provide a plausible chain of events that the in-service event could cause the current symptoms. This is supposed to be a low bar, but don’t assume that. A detailed statement from you that says you never got headaches, but they started days after the IED and you’ve had them ever since should be enough. Don’t give an opinion though. Unless you’re a doctor, don’t try to tell the VA an event caused a disability, just walk through in great detail the symptoms that you observed.

The fourth element is that there is basically no medical opinion already in the file. So if the VA has sent you to get a C&P exam and your C-File already has a medical opinion saying you’re not service-connected, they aren’t going to send you to get another C&P exam. Now if your claim is for TBI and the VA got an opinion from an orthopedic doctor, that’s a different story.

Anyway, that’s a quick overview of what you need to prove to get the VA to send you out for a C&P exam. I hope you found this helpful. If you want me to help you with your disability claim, feel free to reach out to me through my website.