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Tired of the VA ignoring your buddy statements? Dismissing or not citing to your lay evidence? Ignoring your requests for VA Claim status? The problem could be that you are using VA Form 21-4138.

Tired of the VA ignoring your buddy statements? Dismissing or not citing to your lay evidence? Ignoring your requests for VA Claim status? The problem could be that you are using VA Form 21-4138.

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Attiglawfirm.com if i-see_another_va_form_214138_im_going_to_________ Document Transcript

  • 1. attiglawfirm.com http://www.attiglawfirm.com/communicate/va-form-21-4138/ "If I see another VA Form 21-4138 I'm going to ________" ...well, I'm not going to complete that sentence. You can probably fill in the blank in ways more colorful than me. I hate this VA form. With a passion. Almost as much as I hate the Boston Red Sox. (Sorry Boston Vets). I believe that the VA Form 21-4138 is one of the least helpful - and most worthless - forms in the entire VA claims form library. I also believe that VA Form 21-4138 has the power to create REAL problems in a Veterans' claim for disability benefits. Let me tell you why. What is the VA Form 21-4138? VA Form 21-4138 is also called the "Statement in Support of Claim". It is, at is most basic level, the VA Form for a blank sheet of paper. Here is what it looks like (clicking on the image will allow you to download a copy of VA Form 21-4138 from the VA website): In 7 years of reviewing hundreds - if not thousands - of VA Claim C-Files (the C-File is your VA Claims File and is the most important document in your entire VA claim), I have seen Veterans use this form in any number of ways: To request an update on their VA Claim status. To submit stories and information that the Veteran thinks supports one of the 4 Pillars of a VA Claim (Eligibility,
  • 2. Service-connection, Impairment Ratings, and Effective Dates. To submit gripes and complaints about the VA Claims process. To provide details of PTSD stressor events. To disagree with a statement in a VA Ratings Decision or Statement of the Case To update the VA on a change in dependency status. To add lay evidence, or buddy statements, in support of the Veterans VA Claim. The problems with this are two-fold. First, most things that a Veteran uses a VA Form 21-4138 for can be BETTER accomplished using a different form. For example, a Veteran can - and should - add a dependent to their claim by using VA Form 21-4170 . The Notice of Disagreement should be filed using VA Form 21-0598. Requests for updates and VA Claim Status should be done using a letter, that includes your SSN and VA Claim Number, submitted via fax AND Certified Mail Return Receipt Requested. Second, the VA tells you what it uses this form for - and its not to prove your claim. Read the fine print in the Respondent Burden section: "We need this form to obtain evidence in support of your claim for benefits...." Isn't that one of the BIGGEST problems that the VBA has? That they DON'T obtain evidence in support of your claim? Why are you giving them a Form that will encourage them to NOT do anything in your claim? And, then, there is this..... Veterans who "over-use" VA Form 21-4138 may lead VA to ignore the form altogether. Why is that? The more frequently this form appears in a VA Claims File, the less it stands out. Human beings are, well, human - the more we see something, the more accustomed to it we become. I have noticed in our own VA C-File reviews how easy it is to overlook the VA Form 21-4138 because there are often dozens in the VA C-File. You can verify this by looking at your most recent VA Ratings Decision or Statement of the Case. Compare the list of VA Form 21-4138s that you have submitted in your VA Claim to the list of VA Form 21-4138 that the VA considered in the "Evidence Listing" section of the VA Ratings Decision or Statement of the Case. 90% of the time, the VA Form 21-4138 is not listed in the evidence that the rater claims to have reviewed. The Veteran in one case, submitted over 125 copies of VA Form 21-4138 in his VA claim in a 25 year appeal period (1988-2013). Look at how many VA Forms 21-4138 appear on the list of evidence in his VA Ratings Decision:
  • 3. The brevity of this Veteran's evidence listing in his VA Ratings Decision is absurd as it is - his C-File was over 10,000 pages long. That C-File took me 2 solid weeks to review (the first time...it took me over 3 reviews of this C-File to make sense of the Veteran's REAL claims). Here's what is more disturbing. The decision in the above claim was about TDIU, and the Veteran submitted valuable information about his unemployability in each and every one of the 125+ copies of VA Form 21-4138 he submitted. The information that won the claim for this Veteran - in the end - was first referenced - or found - on a VA Form 21- 4138 that the VA ignored or overlooked. I think that the VA had just become "numb" to the VA Form 21-4138, and glosses over it when it appears in a VA Claim. But there is another reason that VA Form 21-4138 is a problem. Here is the BIG reason I think VA Form 21-4138 is "no good" for most purposes. It's because of a simple phrase that appears on the form: "I CERTIFY THAT the statements on this form are true and correct to the best of my knowledge and belief." I had a Federal Judge tell me once that the 8 most damaging words a witness could use are "to the best of my knowledge and belief." Why? Let me give you an example. What statement do you find more believable, trustworthy, or credible: Bob Smith: "To the best of my knowledge and belief, the person I saw break into my neighbor's house was the neighbor's drug-dealing son, Johnny."
  • 4. Paul Jackson: "Under penalty of perjury, the person I saw break into my neighbor's house was the neighbor's drug- dealing son, Johnny." Paul's statement is one you are more likely to believe, isn't it? Why? Because Bob sounds "wishy-washy" using the "best of knowledge" statement. Paul, on the other hand, sounds more convincing because he believes so strongly in his statement that he is willing to subject himself to a perjury charge if someone shows he's lying. The phrase "to the best of my knowledge and belief" has absolutely NO legal value, and when compared with other evidence, will almost always be afforded less weight by a Judge - at the BVA or in a real Court. What to use instead of VA Form 21-4138. Use the right form for the right job. If you are filing a Notice of Disagreement, use VA Form 21-0598 . If you are filing a Change in Dependents, use VA Form 21-4170 . If you request your VA Claim Status, use a letter (delivered by fax AND certified mail, return receipt requested) with your claim number and SSN at the top of the letter. If you want to gripe and complain about the VA, go to the VAisLying.com forum, where you will find a friendly and supportive ear - well, 3,000+ of them to be precise. If you absolutely must complain to the VA directly, send your complaint on a letter, like the one described above. If you want to submit a buddy statement, or lay evidence, do so using the Sworn Declaration Form that my law firm uses in our cases. The Sworn Declaration - because of the special language in it - gives REAL power to your Lay Evidence. You can read more about how to use a Sworn Declaration Form - including how to use it, and the risks and benefits of this document - by visiting the Veterans University (follow that clickable link) Oh....and if you want to learn how to FIND the best lay evidence for your claim, then check out one of our best-selling guidebook bundles: "The Secret to Proving Your VA Claim - 5 Star Evidence". Chris Attig, an Accredited Veterans Benefits attorney and Founder of the Attig Law Firm, PLLC is responsible for the content of the site. The principal office of Attig Law Firm, PLLC, is located in Dallas, Texas. Chris Attig is NOT Certified by the Texas Board of Legal Specialization. - Please view our website disclaimer. ©2007-2013 Attig Law Firm, PLLC Lawyer Website Design by The Modern Firm