When you think of the paperwork necessary to have your disability compensation claim granted by the U.S. Department of Veterans Affairs, you might not think that creativity can come in handy. What matters is adhering to deadlines, responding to the VA’s boilerplate correspondence, making sure the VA has all of your medical records in its possession, and showing up for VA-scheduled medical examinations.
Sometimes, however, creativity can help. This week, I was reminded of this when I attended an online continuing legal education course, hosted by an attorney named Eric Gang of Gang and Associates, LLC.
Mr. Gang told a story about a Vietnam war veteran he’d assisted with his disability claim for hearing loss. In that case, the Vietnam veteran didn’t have evidence of injury causing hearing loss during his service (his records were lost in the fire at the National Personnel Records Center). Accordingly, the VA was having an issue finding the “service-connected injury” prong of entitlement.
Get this – Mr. Gang established the veteran’s injury during service by submitting love letters. That’s right, love letters to the veteran’s then-girlfriend, to whom he has now been married for over half a century. While in Vietnam, he wrote her letters where he complained about the loud sounds from active warfare. These were submitted to the VA to demonstrate the in-service injury – consistent gunfire and booms and explosions that hurt his ears and ultimately caused hearing loss.
This tactic is similar to ones I’ve used in disability claims. For instance, when I helped my father with his claim, I tracked down Army buddies from Germany for detailed accounts of how he was injured. These were not in his files, because as I am sure many readers of this blog can understand, military men often don’t complain. They don’t go to go to sick bay to report a bad back or a hurt knee – they grin and bear it.
If you have a piece missing from your disability compensation claim, consider getting creative. The examples above show how thinking out of the box can demonstrate in-service injuries, but there are other gaps to be filled by creativity. For instance, in the Vietnam veteran example above, what if he not only didn’t have evidence of injury, but he hadn’t gone to the doctor for twenty years after being discharged? To show the nexus between the injury and the current disability, the veteran could submit lay witness (non-expert) statements of family members and friends describing what his hearing was like before, and after, his service, providing specific examples and dates.
These individuals are not medical experts, but they don’t have to be if they’re testifying to facts that are readily observable by a layperson (i.e., they can’t say, “I know he had hearing loss,” but they can say “he asked me to repeat myself,” “he watched T.V. at such a loud volume that the neighbor complained about the noise,” etc). It would just need to be clear that the statements are being offered to show personal observations, and not to provide expert medical opinions.
In addition to filling gaps, lay witness statements can help make the VA provide a veteran with a disability exam. This is part of the VA’s duty to assist. If credible lay witness statements show that a veteran may have a current disability, that won’t be enough to make the VA pay up, but it will trigger the VA’s duty to have an examiner weigh in on the subject.
Being creative has its merits. And that applies to VA disability claims, too.
*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: https://legalmeetspractical.com. Also, if you’d like to check out Sarah’s creativity outside of the legal sphere, check out her middle grade debut, Monsterville: A Lissa Black Production, here. (Sarah is a writer for children ages 8-12).
**Sarah is not currently accepting new VA disability compensation claim clients. The information presented in this blog is for informational purposes only and is not legal advice. Every VA disability compensation claim is different and entitlement hinges upon the facts and circumstances of each case.
Hi Sarah:
Absolutely great article! I had to submit my hearing loss disability paperwork, etc., 4 times to the VA to finally get an approved payment, and that was with my original discharge physical having a hearing test showing a 35% hearing loss annotated in it! I was a Vietnam Vet, US Navy, ’67-’71, and a jet-engine mechanic, which is where I lost my hearing. My hearing loss is now measured at a 70-73% loss! I did finally receive a 30% disability for this 70+% hearing loss last year.
My question to you is, since it appears my hearing lost is continuing to get worse as I age, is there a process where I can re-apply in the future to receive a higher disability payment, if my hearing continues to deteriorate?
Again thank you for penning this excellent article!
John Sanders
E-5, ADJ-2
Attack Squadron VA-86 “Sidewinders”
Cell: 404-388-2211
Glad to hear it was helpful! Thank you for your service – I feel that the VA should be bending over backward to provide veterans with the benefits to which they are entitled, and it is so disheartening to see that this is simply not the case.
This is a great article that goes over how to pursue an increase in rating. (It’s important to note that some disabilities are capped at a certain degree of disability): http://www.vetsnational.com/blog/how-to-increase-your-va-disability-rating.html. In general, it’s pretty common for veterans to apply for an increase when they have the type of disability that gets worse with age. If it’s an option, apply now! The effective date will be the first of the month after the month in which you apply (i.e,, if you applied today, May 4th, it would be effective as of June 1), and you’d get everything backdated to that date once they finally grant it.
Some great advice from the Warrior Princess who slew my VA Dragons! I hope my fellow veterans are taking notes!
INFANTRY SGT, OIF 1 & 3
As usual, an excellent article. Thank you.
Sarah; The NPRC fire started the morning of July 12, 1973 and burned for 4 days. The destroyed in the fire notice he received was wrong. The only way his records could have been affected was if he was discharged before the fire, he had filed a claim, and his file had been pulled from the warehouse shelving (80% of NPRC) and was on a desk in the offices across the hall from the shelving on the 6th (top) floor where the fire was. That would be an extremely rare possibility as there were a few hundred desks that night in the offices on 6, and there were more than 50 million files in NPRC. About 17 million files were damaged or destroyed on 6. As an aside, I was one of the few eye witnesses to the fire, I was involved in its cleanup after it was put out, and then I ran a records research and retrieval small business for 17 years primarily at NPRC.