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VA Disability — Thoughts on Form 4138 and Buddy Statements

Applying for a veterans’ disability rating — or appealing such a rating — is complex and often confusing. Failure is generally in the details and, if any of the details are missing, your application is likely to be denied. That being said, your local veterans’ administration benefits office (Department of Veterans Affairs) is required to keep in touch with you post-application filing and to request additional information if something is missing or incomplete.

As described briefly here, the VA benefits service representative might contact you one or more times for additional information at step two — after your application is filed — or at step three — the evidence gathering stage. If you receive a letter from your service rep, do not delay in responding since failure to respond can be a basis for denying your application. Further, a quick response to a request for more information will help speed the process along. As can be seen at the link above, as of October 2018, the VA says that the average processing time is about 97 days. If the VA requests for more information, that will add to those number of days. Note that the VA explanation states that often the benefits office may “return” to step three more than once.

So, if you receive a letter from the benefits office asking for more information, what are your options? One option discussed in this article is using Form 4138.

New Orleans VA Disability Lawyers — What is Form 21-4138?

 Form 4138 is called the Statement in Support of Claim. You can view the online version here.

Note that most of Form 4138 is blank and the expectation from the Department of Veterans Affairs (VA) is that the applicant will type or write in more details or information to support one or more aspects of the veteran’s application. As can be seen, essentially Form 4138 is a “blank page.” However, the form is better than an actual blank page because the form requires a lot of other information to be provided, such a name and Social Security number. This information allows for the form to be “connected up to” your disability application. You would be surprised at the amount of misfiling that occurs. And misfiling is a big problem because if a document is not physically or electronically “in” your file, then for bureaucratic purposes, the document does not exist.

In any event, Form 4138 t is commonly used for providing various information including the following:

  • Explanation for missing documentation — from the service member’s military record, for example
  • Mechanism for offering buddy statements or statements of support from a family member or friend
  • Further explanation of medical condition, diagnosis, dates of condition onset, etc.

These are valid and positive uses of Form 4138. However, in our experience, some veterans use the form for other purposes which are often counterproductive. So, do not use the form as a complaint form, as a method of disagreeing with something your claims representative has said or done, or as an all-purpose update or change in status form. There are better forms and mechanisms to use.

One additional problem with Form 4138 is the legal language just above the signature line. The language states that the applicant is certifying the truth of the information contained on Form 4138 to the “best of my knowledge and belief.” From an evidence and legal standpoint, that is a weak certification not entitled to much evidentiary weight. Thus, in our view, Form 4138 is best used in the manner of a “cover sheet” for an attachment where a quick summary of the attachment is provided.

To explain what we mean, we discuss buddy statements as an example.

New Orleans VA Disability Lawyers — the Role of Buddy Statements

 In general, there are three essential components to a disability claim: (1) establishing the medical condition/disability, (2) establishing the military service, and (3) causal link. What are commonly called “buddy statements” can help provide evidentiary support for each component. In more legalistic terms, a “buddy statement” is a “Statement of Support” from a fellow service member, a superior officer, a civilian friend or colleague, a family member, an employer, clergy or other.

These statements are never the entirety of the evidence, but are used to supplement or substantiate other evidence. To give a couple of examples, as we discussed in another article, one type of disability claim is one related to military sexual trauma (MST). One problem with MST cases is that, often, the sexual assault is not reported at the time and, therefore, not contained in the veteran’s service record. Or, maybe some reference exists in the service record — medical treatment for an injury — but the record is incomplete as the reason for the medical treatment.

A buddy statement from a fellow service member or superior officer can help fill in the blanks with respect to the sexual trauma. This kind of statement supplements the service record. Non-sexual trauma injuries can be supplemented in this manner too. For example, the service record might indicate “injury to knee” without much more detail. Buddy statements from fellow service members can provide the details and the details can help.

In a similar fashion, a buddy statement from friends, co-workers, and family can supplement medical records by showing day-to-day impacts of various medical conditions and diseases. These kinds of statements add to the evidence since, unlike a physician, friends and family see the veteran on a daily basis and the disability can be given real-world context. These are just a couple of ways in which buddy statements can be helpful.

New Orleans VA Disability Lawyers — Using Form 4138 and Buddy Statements

As noted above, using Form 4138 is one of several mechanisms for submitting buddy statements to the VA in response to a request for more information. However, as also noted, the best practice is the use of Form 4138 as a “cover sheet” — or maybe “summary sheet” — while the buddy statement itself is a separate document and attached “hereto.” In other words, complete Form 4138, but as a summary — bullet-points maybe  — and attach the buddy statement to the form. As a separate document, the buddy statement should be independently signed and ALSO should be sworn.

Although a buddy statement is not required to be “sworn,” it should be. Remember that you are dealing with lawyers and judges. As such, the rules of evidence are important and it is very helpful to try and comply with the rules and standards. Often, veterans will just send a letter signed by a service buddy, family member, or clergy member. That is only helpful at a low level of evidence. Such a statement/letter can be given “maximum power” as evidence if the letter is sworn or attested to. In simple terms, you want your buddy statements to be notarized and, above the signature, you want to add language similar to this: “I attest and swear under oath that the facts contained in this letter are true and correct under penalties of perjury.”

As discussed above, this attestation is much stronger as evidence than the attestation contained on Form 4138. As such, if done in this manner, your buddy statement — as the strongest type of evidence — is entitled to significant weight in the evaluation of your disability claim.

Contact the New Orleans SSDI/VA Benefits Law Firm of Ascend Disability Lawyers, LLC 

If you are a veteran and you think you might be disabled — partially or wholly — because of military service-related injury or exposure, contact the experienced New Orleans VA disability benefits attorneys here at Ascend Disability Lawyers, LLC. We are dedicated lawyers who can help with the complicated process of applying for VA disability benefits, appealing denials and attempting to have your rating reevaluated. Ascend Disability Lawyers, LLC is proven and has years of experience. Contact us via email or by calling (855) 631-2544. Call today.

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