Be Honest, Because Credibility Carries Across the File

Step 9 of the method is being honest. It's the last step, and it decides whether the other eight get believed.

This isn't a talk about character. It's about how a file gets read.

If a VA exam is coming up, start your Claim Map and read the Board decisions for your conditions first.

Credibility is one thing, not one per claim

A rater and a judge form a view of whether your words line up with the record. That view doesn't stay inside the claim it came from. It sits on the file.

A Board of Veterans' Appeals decision shows it, citation 1812000. A Vietnam machine gunner claimed five conditions. The Board granted hearing loss and sent the other four back for new exams. In that grant, it wrote one sentence about him.

The Board concedes the Veteran's participation in combat in Vietnam and considers his lay statements to be credible.

Now read what the Board told the regional office (RO) four years earlier.

In April 2014, the Board remanded these matters to the RO to provide the Veteran new VA examinations for these claimed disabilities and instructed the examiners(s) to consider the Veteran's lay statements which the Board characterized as credible.

Same finding, carried forward, handed to the examiners as an instruction. The 2018 decision states it a third time. Then it throws out all four exam opinions, because every examiner had skipped his lay statements and gone on missing paperwork alone.

One finding, working across one grant and four claims sent back. A finding that goes the other way travels the same distance.

What the benefit of the doubt actually is

It comes from the VA's rule on reasonable doubt.

By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence.

When the evidence sits about even, the tie goes to you. It isn't a license to guess, because speculation isn't doubt. And it can't paper over a real conflict.

Then the sentence that protects you.

Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine.

Somebody doubting you is not a reason to withhold it. Evidence contradicting you is.

Your own words are evidence

The VA defines competent lay evidence in two sentences.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.

In plain words, it comes from a person who knows the facts and describes what anyone could observe, like your own symptoms. So your answers to an examiner aren't opinion. They're evidence, weighed against everything else in the file. That's why being exact matters. Step 8 covers who else can write a statement for you.

What overstating costs

The exam isn't read on its own. Here's the rule on reading exam reports.

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.

That's every treatment note, every statement you've made, everything your witnesses wrote. Stretch it at one exam and the picture stops reconciling. The benefit of the doubt won't help, because it isn't a way to settle a contradiction in the evidence. The cost doesn't stay with the claim you stretched. It goes onto the file, like the finding in 1812000.

What understating costs

This one is quieter, and it's the one I'd warn a friend about. You've carried it twenty years, so it sounds normal out loud. You don't want to look like you're working the system. The exam lands on a good day.

The examiner writes down what you gave them, and that report is what the rater reads. Play it down at a compensation and pension (C&P) exam and you get rated on the playing down. The VA's rule on functional impairment already knows about the good day.

In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.

The same rule has the examiner fully describe what the disability does to your ordinary activity. They can only describe what you tell them. For mental disorders, the rating rule goes one step further. The VA must rate on all the evidence in the record that bears on work and relationships. Not only on the examiner's view of you at the moment of the exam.

That rule covers mental disorders only, not the rest of the rating schedule. It still tells you what a record is for. The exam is one visit. The record is everything else, and the record is the part you build.

Before you build yours, start your Claim Map and read the Board decisions under your conditions.

Tell your Claim Map a VA exam is coming up, and the written playbook adds a part on the exam to its Be honest chapter. See what the playbook covers

Fraud, plainly

Here's how the VA defines fraud.

An act committed when a person knowingly makes or causes to be made … the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper, concerning any claim for benefits under any of the laws administered by the Department of Veterans Affairs …

The word doing the work is knowingly. Getting a date wrong from memory isn't this. Writing down something you know isn't true is.

In the VA's claim rules, what fraud leads to is narrower than you'd expect. The rule says a person who commits fraud forfeits all rights to benefits. But that sentence is written for the purposes of a later paragraph. Since September 2, 1959, a forfeiture can be declared only in the cases listed in three places in the rules. For fraud, those cases turn on where the person lived or where the act took place.

Criminal laws exist outside these rules. I won't write about what I can't put a section in front of.

The cost you're likely to meet is a record that argues with itself, on every claim in the file.

The bad day and the good day

Here's what honest looks like in the room.

1. Give the range before you give a number. On a good day this, on a bad day that.
2. Then give the frequency. Four bad days out of seven is a different disability from four a year, and you're the only one who can count them.
3. "It depends" is a real answer. Say it, then say what it depends on. Cold weather. How far you walked. Whether you slept.
4. Say what you can't do, not only where the pain is. Couldn't lift the grandkid. Stopped driving at night. Left the store without the groceries.
5. Don't push through it to look tough. The rule on functional loss says a part which becomes painful on use must be regarded as seriously disabled. So where the pain starts is a measurement, not a complaint.
6. Say it the same way every time. To your doctor, in your statement, at the exam. Consistency is what a rating specialist is reconciling.

The worst day isn't the only day, and the good one is part of the record too. Give them both and the picture is accurate, which is all any of this asks.

I'm not your representative.