Ask the Attorney: Why Similar Veterans Get Different VA Disability Decisions

0:03Leah Bucholz Have you ever wondered why another veteran with what seems like the exact same condition was granted VA disability benefits while your claim was denied? It happens every day, and it's one of the biggest misconceptions about the VA disability claims process. So welcome back to ask the attorney. I'm Leah Bucholz, founder and CEO of Prestige Veteran Medical Consulting. And joining me today is attorney Rebecca Deming from ProVet Legal, the founder of that law firm.

0:27 She's been with us several times in the past, and Rebecca helps veterans navigate the VA disability claims and appeals process. And together, we're going to help answer one of the most common questions, or some of the most common questions that we hear from veterans. So, Rebecca, welcome, and I'm gonna just jump right in with some of these questions for you today.

0:48Rebecca Deming Awesome. Thank you, Leah. Thanks for having me. I'm excited to talk about these questions because we get a lot of the same questions. So, hopefully,

0:54Leah Bucholz we can see them to fill this stuff

0:55Rebecca Deming for people.

0:57Leah Bucholz So why can two veterans with nearly identical claims, and identical conditions rather receive completely different VA disability outcomes and decisions?

1:09Rebecca Deming That's a great question. And there are a lot of answers. There's a lot of possible answers of why, two people with a similar condition or a similar claim could get different ratings. One person might get denied. One person could get granted.

1:25 One of the kind of easiest answers is that you have different raters, and they're doing their best to apply the the law to the facts in the case. Can use more AI, so there is less chance that they're missing stuff. But there's still possible there's still possible variation in, the level of training, the level of attention to detail, that kind of stuff that the individual rater has. So it's possible that someone's gonna, you might get one rater who's a you could get two raters that are, retired veterans or or veterans, and one of them sees their role as, helping all veterans, and one of them sees their role as, Hey, I had it worse, and you know, I'm going to kind of help guard VA against people who don't have good claims. So there's just variation in how they're applying the law, which is not valid, that's something that we can appeal.

2:20 But that I mean, just understanding the reality of humans applying the regulations to facts, it's possible they miss stuff. So that's Sure. Number one. There's a lot of errors. And then I think the second one that the veteran can really take ownership of, other than knowing that you can appeal if you think that you got something wrong, is everybody's medical history is a little bit different.

2:41 Everybody's medical records are a little bit different. And so it might be really obvious from they might have the same condition, but maybe they had better buddy letters explained what happened. Or maybe they had gone to the doctor and documented it better than you did. And excuse me. They might have documented it better than than you did, or they might have gotten a a C and P examiner who looked at it and said, yeah.

3:08 I can see how these two things are connected. And the C and P examiner gave a favorable opinion Mhmm. On theirs, but not on yours. And so Sure. Without seeing the whole claim file and seeing everything that's in the record, you don't know how they develop the claim and you don't know whether their symptom history is exactly the same as yours.

3:25 I mean, I can guarantee you that it's not exactly the same because people have different symptom histories and they document it differently. So there's a lot of variation between files, even if you're both claiming migraines or you're both claiming sleep you you might've had different MOSs, you might've had different timelines for onset, different underlying conditions that could be linked. So it can be very different and very fact specific. So it's not like one size fits all just because you have the same claim as somebody else.

3:55Leah Bucholz Yeah. And from a medical perspective, I I get this all the time. You know, veterans that say, well, my buddy had this, so, you know, I should get this or, you know, whatever. But to to your some of your points from the medical side, everybody has different risk factors as well and different variables that go into their particular case. So it's not a one size fits all situation.

4:17 And that's why veterans mistakenly say, well, I looked at this VVA decision, and this person got granted, so I should be granted. And and from my understanding, there is no precedence when it comes to a claim. Right? There's precedence when it comes to, like, legal, big legal scope. You know? This ruling is now gonna be imposed upon VA law. But when it comes to the individual cases, they're so unique to that person. It's not like, well, one person got it, so I get it too. Right?

4:48Rebecca Deming Right. The only time that from from a legal perspective I always hate saying the only time because then we're gonna think through it with our legal minds, be like, well, there's also that other exception. But really the only time that a BVA decision, a board decision, could be helpful in yours is if VA is trying to say, hey, there's no way that your PTSD could cause your sleep apnea. And then we can get board decisions that say, well, VA has decided in the past that their PTSD caused their sleep apnea. So we're we're budding or you know, because they wanna be consistent.

5:22 So we can say, hey. VA has recognized that there is agent orange in this location Right. In the past. And so we're not saying that this veteran was exposed to it, but you can't say we're kind

5:31Leah Bucholz of Right.

5:32Rebecca Deming Fighting them saying never or it's not possible by saying, hey. You say it's not possible, but you did it in this other case. So take a look again.

5:40Leah Bucholz Right. That makes sense. So from a procedural standpoint, when you're saying, when they're making blanket statements that these links do not exist, period, that can be fought. Not necessarily well, you know, if the rationale from VA is that this person's case doesn't make sense, That's harder to fight with precedence than this globally is not a link.

6:03Rebecca Deming Correct. So exactly.

6:05Leah Bucholz And I know also when you look at case by case, another flaw for that is that just because the BVA website says one thing, that doesn't mean that that wasn't later overturned in a particular veteran's case. Right? Correct me if I'm wrong, but, you know, leaning back towards the more flawed presentation, not the one that's high level, You can't rely on one veteran's case for a specific outcome because that could be overturned at a later point, and we just don't know that based on looking at a BVA appeal database.

6:37Rebecca Deming Alright. I mean, typically, at a BVA like, VA can't undo favorable findings and favorable decisions without showing fraud or clear and unmistakable evidence. So of of error on VA's part. So, if the if the board granted something, unless they later find that there was fraud or they later find that they were there was clear error in that grant. Right.

6:59 It's gonna stand, but, yeah, it doesn't really have the the weight of saying this is binding presidential Right. Legal Mhmm. Sources that we can rely on.

7:14Leah Bucholz Sure. So how much does the quality of the evidence impact the outcome of the claim?

7:20Rebecca Deming I think it impacts it a lot. You know, when we're talking about evidence, it could be private medical opinions, it could be your medical treatment records, it could be lay statements from you, and understanding what pieces VA has already conceded and what pieces are missing are important. Because VA might you might be fighting I'm sure you've gotten people coming to you, Leah, asking for a Nexus letter on something that's presumptively linked. But like burn pits to brain cancer or something. And you're like, I don't need to write a Nexus letter on that because it's presumptively linked.

8:00 But the piece that VA is fighting is, was this person actually exposed to burn pits? Or do they actually have brain cancer to be able to connect So those understanding what evidence you need is really important. And then the quality of it is also really important. Getting into and I know we're gonna talk later about another episode about about the quality of C and P exams and how to you know, what's a quality one and what's not. But sometimes those exams, you know, understanding that they may not go into as much rationale about why something is or is not connected.

8:40 So having private medical opinion that lists out the reasons, addresses VA's concerns, addresses the proper legal standards is really helpful as opposed to just having you know, sometimes your private doctor can do a great job, but sometimes the private doctors will just write, yeah, I think these two things are connected and they don't give their rationale. And so it makes it harder for VA to to rely on that.

9:03Leah Bucholz So do you feel like the way that the claim is presented also makes a large, you know, factor or variable in in VA's decision?

9:16Rebecca Deming Think so. Theoretically, you know, VA has the duty to assist. And so they understand that veterans, especially if you're not represented or if you're working with a a VSO, you're just putting your paperwork together. They have the duty to kind of build that out for you. So if you don't put together the perfect claim I I think sometimes people let the fear of, perfectionism get in the way of of just getting their claim filed.

9:40 Mhmm. And sometimes they can put something out there and VA's gonna pick it apart and be like, well, did you really mean hearing loss? Or did you mean tinnitus? Or, you know, let's go get your medical records to show that you have this diagnosis or something. So VA will do some work. And a lot of times they do a decent job. I mean, we're a little bit jaded because we work on the appeal side. So we see every time that VA gets it wrong, and, you know, that's our lens of of looking at it. A lot of times, they they do a decent job even if you don't put together a really solid package in the beginning. A lot of veterans don't wanna go through the appeals process, and they would rather put the energy forward on the front end to get really strong evidence and, you know, put their best foot forward and get those medical Nexus letters in the beginning and make sure they have their claim packet put together in a really clear way.

10:30 I think with VA using more AI, it does make it easier for VA to catch stuff. It was in the past, we've seen VA miss stuff that could be buried in the records. And so it was really helpful. It was really, really important previously to make sure that you kind of highlighted where stuff was, where you had treatment records, when you had treatment records, give them the timeline, show them where stuff is in the record because otherwise, you're relying on somebody who who might miss a a key piece. Mhmm.

10:59 But I'm hoping, I'm optimistic that with with them using AI, to search the records that that's gonna make it easier for veterans to just put claims forward and let VA do the work to find the evidence.

11:11Leah Bucholz Yeah. Most definitely. I agree. Hopefully, there's still some human component that happens there in the, oversight of that AI process, but, you know, the hope is that the AI is gonna be more thorough and find things in a more expedient manner. So, I mean, I know we already touched on the medical opinion piece, but can you speak a little bit more to how important medical opinions can be in the outcome of claim?

11:34 Good or bad, private or, you know, VA. Right? Like, how heavily can those I I know this is multifactorial. Right? But what are your thoughts on that?

11:46Rebecca Deming So VA adjudicators, the decision review officers, and the, like, the the people making decisions are not the examiners. Right? It's it's an adjudicator. They may or may not have a medical background. Most of them are are not medical professionals themselves.

12:04 They're not authorized to make their own conclusions of medical evidence. So they can't We've seen them do it incorrectly, of course, but they can't say, Well, in my experience, running around in boots never causes flat feet. Nobody cares what the adjudicator's personal opinion is on a medical connection. So even if it's pretty obvious to me and the veteran, I'm not going say you because you have a medical background, but even if it's pretty obvious to non medical professionals that these two things should be connected, without a medical opinion, VA can't grant it. And they can't deny it either.

12:43 I mean, they really need the medical opinion piece to be able to show whether or not there is a connection and how severe something is. So it's important, you know, if if you can get that through a a VACMP exam and the examiner is on your side and and writes a good opinion, then that's great. And you should be good to go. We've seen because there's the three elements, we've seen a positive medical opinion, and then VA kind of fights you back on, well, did something happen in service?

13:16Leah Bucholz So what I find interesting, though, is that, like, a couple things. One, you and I have discussed this many times. That also goes on the flip side. Sometimes examiners gets outside of their scope, and they talk about probative value and and things that are just completely ridiculous that they shouldn't be commenting on, because they're there to give an opinion on the medical evidence. Right?

13:38 And and that, I I have found sometimes actually will taint what the adjudicator then says, which is it's just not a good practice. But at the same time, I've also seen where you have a singular medical opinion from the C and P examiner that's positive, and then the adjudicator says, I disagree with the the medical opinion. So if there isn't a conflicting negative opinion, can the adjudicator just go against the examiner and say no, or are they developing another negative medical opinion and then siding with that one? Know we're getting off base here.

14:14Rebecca Deming Yeah. Generally, that would be an error for them to Yeah. Deny something when there's a favorable medical opinion. I think the only time that that might be appropriate is if they say, well, we don't have evidence that the you know, the medical and I think we see it most with PTSD, where the medical examiner says, yeah, this is related to their reported stressor. And then VA says, well, we can't verify the stressor.

14:35 So that would be they're not disputing the medical opinion. They're disputing whether something happened in service. So, yeah, they can't if they think that there's something wrong with the medical opinion, their job is to send it back for a correction of the medical opinion.

14:51Leah Bucholz Okay.

14:52Rebecca Deming You know?

14:53Leah Bucholz So they will definitely. They will deny not based on the medical Nexus piece. They will deny on one of the other two elements. The

15:00Rebecca Deming Correct.

15:02Leah Bucholz That that makes total sense because now that you say it that way, when I've seen it, it's been like, yeah. There's a positive opinion, but there's no in service incident. So we're denying based on that. Right?

15:11Rebecca Deming Yeah.

15:12Leah Bucholz But tracking back to our current discussion at hand, can missing service records or medical documentation make the difference between an approval or denial?

15:23Rebecca Deming Yeah. Of course. So VA can't deny something, and and a medical opinion is not valid if it's just based solely on the lack of service treatment records. We all know that there's a lot of reasons why people don't go get treatment and service. You know?

15:39 Op tempo, command culture, mission needs. What there's a lot of reasons why people don't go get treatment in service. They can't just say, well, just because you didn't serve or just because you didn't go get treatment for it, we're denying it. But having a medical report in service that something happened is kind of the smoking gun. Like you're saying that this happened and here you went and got treatment for it.

16:02 It's really, really helpful if you do have that. If you're missing service treatment records, you need to be aware that that thing is not in your service treatment records. I mean, if you're missing service treatment records because they didn't put them in the file, that's another issue. But if you never treated for something in service, so it's not noted in your service treatment records, it's going to be important to build out that lay evidence, maybe get a retrospective medical opinion and say, hey, based on the trajectory and the progression of this condition and what we would expect over time, it makes sense that symptoms would have began during service. It aligns with their history, aligns with all this stuff.

16:40 So if it's not in your service treatment records, you're gonna have to do a little extra work to show VA that it that something began during service or or was somehow caused by service.

16:51Leah Bucholz So, I know you we touched on this in the beginning too, and I don't know if you have anything to add to it. But I I just when it comes to the variability of the adjudicator rate, do different VA raters and different VA law judge judges interpret that evidence differently based upon their personal biases or their education and training level, or, you know, do you have anything to add to what you already kinda touched on on that piece?

17:17Rebecca Deming Yeah. I so I think there's so there's kinda two ways or two ways to look at this. Right? There's are they interpreting it correctly? Are they missing evidence?

17:30 Are they making mistakes? And then once you have once they have all the evidence in front of them and assuming that they're not missing evidence and they're not making flat out mistakes, it's their job to weigh the evidence. And they have to give the benefit of the doubt to the veteran and, but they can kind of weigh the probative value of the evidence. Like you said, that's that's the job of the adjudicator. That's not the job of the C and P examiner to weigh the probative evidence.

17:57 I mean, unless they the examiner might notice that there's malingering, which is, kind of faking symptoms to get a benefit or something like that. But, it's not their job to say, well, found this buddy letter more persuasive than that buddy letter or some you know? That's the adjudicator's job. And so within adjudicators, and within board judges, they do have some latitude to weigh stuff differently and say, well, I gave more weight to this medical opinion than that medical opinion, but they have to give their reasons. They have to have a rationale.

18:27 They can't just be like, because I like C and P examiners better than than private examiners. That's not a valid reason. It has to align with the record, and and they have to have reasons why they gave more weight to something than Mhmm. Than something else. And there can be some room for difference of opinion or, or varying levels of judgment in how they weigh conflicting medical evidence.

18:50Leah Bucholz Okay. So I have a really hot question for you now, and I I can't wait to hear your response because I have my thoughts on this. But, does the regional office that is processing the claim impact the outcome, the particular regional office?

19:09Rebecca Deming That is a nuanced question. So in the past, it used to be that and they call them regional offices because, the staff for that specific office was tasked with handling veterans who are in that area. So the St. Petersburg, Florida regional office would handle claims out of Florida. Now they still call them regional offices, but they have a national work queue.

19:31 So claims get processed, and sometimes they're not processed through, one regional office. It might be it might be that Saint Petersburg, handles the request for an examination, and then it gets sent to, Jackson, Mississippi for a memo on radiation exposure, and then Seattle for analyzing the evidence and issuing a final appeal. I mean, the stuff can get moved around. I don't know if that example is exactly how something might track through the system. But so it's not one office necessarily better than other offices, but we have found within the regional offices that they have different managers and different staff, and some of them are trained better than others.

20:13 And so we've had conversations with, people in certain regional offices, and and they might tell us, yeah, my supervisor hasn't taught me that yet. When we're talking to the decision review officer on a higher level review, and it's kind of like, oh, that's concerning. So, you know, it's not like you wanna and and the other thing is you don't have any control over where it's being handled. So it's not like, I'm gonna like, Saint Petersburg is better than Seattle, so I'm gonna angle to have my

20:41Leah Bucholz Well and and I know that they might they might also have different, workflows and patterns between regional offices. And and they should be doing things the same, right, nationally, but just it's just like another office, just like every other office. Right? They they may have ways that they do it and that they talk with their supervisor and their colleagues, and they're used to their systems. And there may be some variability in that, from RO to RO.

21:05 Right?

21:07Rebecca Deming Yeah. And there are And then there are certain regional offices that handles subject matter. Like, they have a subject

21:15Leah Bucholz matter association.

21:17Rebecca Deming Mhmm. So, military sexual trauma Right. Should always get routed through San Juan, Puerto Rico. I don't know if all the staff is actually physically in San Juan, but that's the office that manages that and make sure that the people who are reviewing military sexual trauma cases have the training and expertise to handle the Mhmm. Those kind of sensitive topics.

21:36 They know what markers to look for, even if there's not a clear record of a rape or something in service. Jackson, Mississippi, like I said, they manage radiation exposure cases. The Philadelphia office handles survivor benefit DIC cases. And so sometimes because if it's a specific issue, it has to go through that office. There can be some bottlenecks where stuff takes longer because they might have more of a backlog.

22:03 Can't just get circulated through the regular national work queue. So when you have certain special issue things, it can take a little bit longer to to go through the pipeline.

22:14Leah Bucholz So what do you think is the single biggest factor that separates a successful claim from an unsuccessful one? If you had to if you had to pick one.

22:24Rebecca Deming Oh, that's a good topic. Other than than luck Mhmm. I and I I do think there's a lot of luck involved in, you know Yeah.

22:34Leah Bucholz Like, flip a coin.

22:37Rebecca Deming Did you get a good C and P examiner? Did you you know, did they do the development they were supposed to do? But I would say understanding the three elements of service connection that you have to have a current diagnosis, that you have to have something that happened in service and a connection between what happened in service and the nexus or connection between your current diagnosis and what happened in service. And so if you understand that, think it helps people align their evidence and not waste their time developing more evidence that you have a diagnosis when the question isn't you know, VA's focused on if there's a Nexus, and you're just getting more evidence that, you know, you got a CPAP machine prescribed. Well, they've already said you have a diagnosis, they're just worried about the other piece.

23:21 So I think understanding that will help you figure out, do you need a Nexus letter? Do you need, buddy letters to show that something happened in service? Or do you just need to go to the doctor and get a diagnosis for your the symptoms that you've been suffering with?

23:34Leah Bucholz Sure. Sure. Well, that makes a lot of sense. So I think we can wrap up here, and and I appreciate you being here as always. You provide such a wealth of information.

23:43 And, for those of you wanting to connect with Rebecca, I'm gonna put her information in the comments below, and we're gonna tag her in this video also so you can go check out her YouTube channel, which is awesome and provides a ton of great information over at Pro Vet Legal, in the vet veteran benefits podcast. So thank you as always, Rebecca, and and please like and subscribe to our channel and Rebecca so you can get more information. And, we'll see you guys next time.

24:14Rebecca Deming Awesome. Thanks, Leah.

24:15Leah Bucholz Okay. See you.