The Application of law to facts (i.e., How to win)

We get a lot of questions about how we obtain such a high percentage of service connections for conditions that veterans did not get treatment or diagnosis for in service.

The answer is simple, but the application is not. We put in outstanding quality evidence and then strongly advocate by arguing law.

Simple in theory, complicated in practice. Let's look at a hypothetical situation, and then apply our methods.

Hypothetical: A veteran served for 10 years and exited in 2010. In 2020 they have a sleep study and are diagnosed with obstructive sleep apnea. Is it able to be service connected?

The answer is: it depends. We don’t have enough information. So we ask questions about symptoms and when they began:

These are all common sleep apnea symptoms and are the same that any sleep doctor would ask. With each question, we then ask when that symptom started. Was it in service, or after? If after, it is not eligible for direct service-connection, unless caused by another condition; if during service, then it is eligible. Notice, we didn’t ask if the veteran went to sick call, just when the symptoms started; that is because there is no law that requires the veteran to have gone to sick call.

Let’s look at the applicable evidence statute (38 USC §1154) (paraphrased): “In each case where a veteran is seeking service-connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by…all pertinent medical and lay evidence.”

If the veteran can credibly demonstrate that they had symptoms of a disease in service, as in this case of OSA, then it is eligible for DIRECT service-connection (not secondary).

We want to be clear, do not try to make something up that is not true. A lay statement is legal testimony. Falsifying testimony is a crime (jail time in addition to being a bar to all benefits). Do not falsify testimony.

We have facts in a personal statement and those facts demonstrate symptoms in service. Now let’s look at case law, then we will apply all the law to the specific facts.

The requirements for direct service-connection according to the Federal Circuit Court holding in Shedden v. Principi are:

Now we apply the facts to the law:

Now the veteran needs Shedden element three. That is normally, but not always, done through a medical opinion. VA will order a medical opinion for you (or they should), but even though the veteran has provided the first two Shedden elements a VA examiner will still opine negatively because they have been trained that there must be evidence in your service treatment records. Because there is no recorded evidence in the service treatment records, and automatic negative opine. That is not what the law says.

How does the veteran prevent that? A professional independent medical opinion from a physician that understands the science and the law, and strong advocacy.

First, the medical opinion. A medical opinion is not a paragraph; it is not a form letter; it isnt written by you or the secretary in the doctor’s front office and signed by the doctor. It is a detailed legal document with medical contents written by a medical expert. Without strong evidence, the veteran’s case is doomed to fail. Let’s assume the veteran gets a really solid medical opinion, then what?

That’s when advocacy wins the day. No advocacy means a likely denial. Why? Let’s look at what happens behind the scenes...

In 95% of cases the VSR doesn’t see or ignores the evidence of record and immediately orders an examination and medical opinion without evaluating the private medical opinion of record for adequacy (which prevents them from ordering a VA contract opinion). A VA contract medical opinion is ordered, but they do not tag the personal statement for the examiner to review. So the examiner is left to only look at the service treatment records - no record there? Automatic denial!

This is all illegal. Provided that all of the evidence submitted is competent and credible, VA should evaluate it for adequacy before ordering more evidence, but it is VA’s legal right to order an opinion and the veteran must attend to be service-connected, unless the veteran objects and good cause for not attending. This is where strong advocacy pays dividends. A good advocate will immediately write a letter and sunbmit it into the legal record which demonstrates that VA violated law and policy when they ordered the medcical opinion. Then the advocate reaches out directly to the VSR. If the VSR is not responsive, then to their boss (the coach), and if needed, then to the coach’s boss in an effort to point them to the evidence, have them tag it so others see it later, and get the claim made ready for decision (RFD) like it should have been.

Can a VSO do this? Yes, if they have access to VBMS. Will they? Most don’t know they can or how to do it, and most are way too busy. If they do not do it, then the examiner provides a negative opinion. Now sometimes VA does not like that the representative called them on their bad behavior, they refuse to cancel the exam, and then the decision says, "You did not attend the examination without good cause; therefore, we are denying your claim." Obviously, that is a lie, because you did provide good cause and then you have a valid legal bases with to appeal. Is this good? No, but what is the alternative? The VA examiner renders a negative opinion that cannot be removed from the file, and the RVSR renders a decision a decision and ignores, or discounts the value of, the private medical opinion in comparison to the C&P examiner uses the VA opinion as the bases for a denial. What’s the point of good evidence when VA overrides it?!

A strong advocate can prevent that denial in most cases, but even if they do not, it gives a professional legal grounds to argue the law in an appeal and win! And it is much easier to win if you do not have negative evidence in the record. We go ten rounds (professionally) with VA to prevent erroneous development. Many times the question they ask the examiner to answer is not even a reasonable question. In over 50% of the cases we see the question is literally nonsensical, not just implausible. If the veteran or their advocate never sees the question, they cannot object to it; and if the representative sees it and does nothing, they are useless to the veteran. Make sure your representative advocates for you!

We have a high percentage of positive outcomes because we watch for exam requests, write letters to dispute VA actions, and communicate directly with raters. We advocate for our veterans and the results show that.

In short, if you have no representation you are hurting yourself; and if your representative is not advocating for you with VA, then what is the point of having them?

Advocate for yourself and make sure you are well represented!