At the NOVA Spring conference this March in Las Vegas, I attended a class on 38 CFR 3.103(c)’s protections afforded us but never offered. To wit, the conference that is permitted to inform us of what we are lacking or could sorely use to help us win. I consider this the Duty to Assist briefing of all briefings. VA figures they published it so everyone knows about it. Right? Yep. Just like everyone knows there is an ILP program where you can get lots of neatsy keen stuff if you apply for it.
Here’s the salient passage from §3.103(c)(2):
It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.
Well, that’s what it says in VAspeak. In Vetspeak, that translates into “If you ask, we have to tell you what you need to win. Just don’t expect us to volunteer the info, hear?
Here’s a case of Johnny Vet who stepped on his pink snake and got in trouble. He gave 9 long years to his country, including two tours in Vietnam that had to be nasty. His second enlistment was fraught with problems and he ended up with an other than honorable discharge. This Big Chicken dinner effectively barred him from compensation benefits that might have accrued in that second enlistment period.
He punched out in the middle of this appeal in February 2011 and his wife took over. She didn’t fare so well. Here’s where a little tutelage on § 3.103(c)(2) from the American Legion service representative might have helped.
It is well-known that you can go back and petition the Army Board of Corrections of Military Records and ask for an upgrade to an other than dishonorable discharge-perhaps a General under honorable like mine. This would remove the bar to compensation in 38 CFR § 3.1(d).
Don’t they teach that in Claims 101 at the VSO school? Hell, they say it stands a good chance of being on the Agent’s test I’m taking next week. I was even admonished to bone up on it and be prepared to be quizzed.
The teaching moment is simple. If you have ‘Imperial Entanglements” preventing you from achieving a win on your claims, it behooves you to get your house in order before you file the claim. In the alternative, when you lose based on this regulation at the VARO, it seems it might be a good idea to write to the ABCMR and beg for a discharge do over. Going up to the BVA with it still on the books is merely going to result in a “What part of ‘no’ don’t you understand, boy?”
In retrospect, reading these sad tales, I often wonder why the DRO, or whoever the Vet sits down with for a hearing, doesn’t just say ‘Ruh-oh Rorge. You gotta fix this first if you even hope to get SC, bro. You’re screwed.’ Why would they let it go to DC facing a guaranteed denial? What kind of legal system would allow that?
Speaking of which. I got a neatsy keen invitation to join the AmLeg for $30 a year yesterday. They promise me they can get me service connected pronto. Hell, they haven’t even seen my discharge. How do they know I have good paper?