Speaker 1So I want you to picture a desk, specifically like a VA radar as desk.
Speaker 2Oh, right. Yeah.
Speaker 1And sitting on that desk, or maybe pull up on a dual monitor screen, is a claim file.
Speaker 2Right. The dreaded claim file.
Speaker 1Exactly. And it is thick. I mean, we're talking hundreds, sometimes thousands of pages
Speaker 2long. Yeah, they're massive.
Speaker 1Right. And that radar, a person that you probably never are going to actually meet has that file open for, I mean, really, just a matter of minutes, not hours. Yeah.
Speaker 2The time crunch is real.
Speaker 1It is. They're skimming through this mountain of paperwork and almost everything they're looking at and there was written by somebody else. It was written by a doctor or it's as a report from a C&P examiner, which we'll define in a second. Or it's just a quick like administrative note from a records clerk.
Speaker 2Right. Every, it's a very clinical sterile stack of evidence. Yeah. And in that entire mountain of paperwork, there is exactly one document, just one, that is actually written in the veteran's own voice, you know, about their own life by them.
Speaker 1And that is exactly what this deep dive is all about today. We are pulling from Title 38 of the Code of Federal Regulations, some VA Rater Guidelines, and of course, years of our own internal case files here at Warrior League, to decode that one specific document. We are talking about VA Form 21 41 38.
Speaker 2The Statement in Support of Claim.
Speaker 1Yes. And, you know, here at Warrior Allegiance, we see veterans treat this form as like an afterthought all the time.
Speaker 2Oh, constantly. Right.
Speaker 1Or they rush through it or they just completely misunderstand what the VA algorithm actually needs from them on this form.
Speaker 2Yeah. It is, honestly, it is arguably the most misunderstood piece of paper in the entire Claims process. Really? Oh, yeah, because it's a general purpose container. The VA designed it to hold information that just doesn't, you know, neatly fit anywhere else on a standard Claim Form. And as of the July 2024 revision, it's still current, you know, you can submit it on paper or you can fill it out online. Okay. So it's flexible. Very flexible. But that flexibility is, well, it's a double edged sword. Yeah. It's simultaneously the whole point of the form and, honestly, the whole problem.
Speaker 1Because, I mean, a form that will accept anything tends to receive anything.
Speaker 2Exactly. Because there are no strict guidelines like printed right there in the box. Right. Veterans just fill it with all the wrong things like the veterans we work with will sometimes bring us these statements they've drafted that are, they're essentially just long arguments with the rating schedule. Oh, well. And they start like literally quoting VA regulations back to the VA.
Speaker 1Like the reader doesn't know the regulations.
Speaker 2Right, right. Or, and this is very common, they write these like sprawling 10 page documents that read like a legal brief written it, you know, two in the
Speaker 1morning, fueled by like black coffee and sheer anger at the VA.
Speaker 2Yes. Exactly. Which look is an entirely understandable emotion.
Speaker 1All for sure.
Speaker 2But it's a terrible strategy because none of that is what the form is actually for. And more importantly, none of it actually helps the claim.
Speaker 1Okay. So make sense of that for me though. Yeah. Yeah. If, um, if that angry midnight brief just gets thrown out, right, and we aren't supposed to argue the law on this form, what exactly does the VA want to hear from us?
Speaker 2Well, they want the one kind of evidence that only you can provide. They want a firsthand account of what happened to you and, you know, what it has been like to live with that condition since that's it.
Speaker 1Okay. Let's, let's unpack this because I know a lot of veterans listening right now are probably thinking, well, I know what's wrong with me, you know, I live in this body. Why can't I just tell them? Yeah. And this really comes down to a very specific piece of the law.
Speaker 2Yes. And this is the part that almost nobody has read, but it settles so many of the arguments we see. Right. We have to look at title 38 CFR section 3.159 paragraph a. This regulation defines two entirely different kinds of evidence. And it draws a very clean, like a very bright line between them.
Speaker 1And what are those?
Speaker 2The distinction is between competent medical evidence and competent lay evidence.
Speaker 1Okay. Before we, before we cross that line earlier, you mentioned a CMP examiner. You just so we don't, you know, leave anyone behind CMP stands for compensation and pension right? Exactly. Those are the VA contracted medical exams.
Speaker 2That tracks. Yeah. So the regulation states that competent medical evidence is provided by a person who is quote, "qualified through education, training or experience to offer medical diagnoses, startments or opinions." Gotcha.
Speaker 1So basically a doctor or that CMP examiner we just mentioned.
Speaker 2Right. Exactly. But then the regulation goes on to define competent lay evidence. Okay. And it says this is any evidence not requiring specialized education. 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.
Speaker 1Okay. I want to challenge this a bit. Go for it. Because it just, it feels like bureaucratic red take. If I, let's say I hurt my back in certain, and now I have this, you know, shooting pain down my leg, why can't I just write on my VA form 21, 41, 38, my back condition caused my nerve damage? Right. Doesn't that just save everyone time? Like, I know my body, I know it started right after the back injury. Right. Why isn't that competent lay evidence?
Speaker 2So what's fascinating here is exactly where the law draws the boundary. Okay. That boundary sits entirely in those two words you just heard, observed and described.
Speaker 1Observed and described.
Speaker 2Right. You are not a doctor. So in the eyes of the regulation of veteran is not competent to diagnose themselves.
Speaker 1Even if they're right.
Speaker 2Even if they are 100% right. You cannot name the exact medical mechanism of an injury and you absolutely cannot declare that one condition medically caused another condition.
Speaker 1So a nexus, meaning, you know, the literal medical link between the service event and the current disability. Yes. Are you saying that claiming a caused b is a medical nexus and therefore it's completely off limits for the veteran?
Speaker 2It stops cold right there. Yes. That job belongs exclusively to competent medical evidence. Wow. That is precisely why a nexus opinion has to come from a clinician. If you write my back condition caused my nerve damage on your form, you are doing work. Your statement is not legally permitted to do.
Speaker 1So what happens?
Speaker 2A ratter will discount it. I mean, they're legally required to ignore it.
Speaker 1Okay. But the regulation also says we are competent to observe and describe. Right. So we just have to reframe it. Right. Yeah. Instead of diagnosing, we just state what we actually see and feel.
Speaker 2Exactly. So compare that rejected phrase to this one. Instead of a caused b, you say the numbness down my leg started about six months after the back injury and it is noticeably worse in the mornings.
Speaker 1Oh, I see where you're going with that. Yeah. You didn't diagnose nerve damage. You just described numbness. Exactly. And you didn't say the back injury actively caused it. You just observed the timeline that, you know, it started six months later. Right. And you described the frequency and severity like it's worse in the mornings.
Speaker 2And that is exactly what a clinician needs. You are doing exactly the work your statement is allowed to do. It owes the same veteran, the same facts, but completely different evidentiary value to
Speaker 1the VA. That is such a crucial distinction. Because here at Warrior Allegiance, we see so many claims stall out simply because, you know, the veteran was trying to do the doctor's job instead of just being star witness to their own lives.
Speaker 2Yes. That is a perfect way to put it.
Speaker 1Like you are absolutely qualified to say the ringing in your ear started after a specific deployment and never stopped. Right. You are completely qualified to say your knee gives out on stairs. Nobody needs a medical degree to know those things about their own life.
Speaker 2And the regulation legally empowers you to submit those exact observations as competent evidence. Okay. But, and this is a big, but knowing what you are legally allowed to say is really only half the battle. You still have to organize those observations so the reader can actually use them.
Speaker 1Right. Let's talk about the mechanism behind that Raider's desk. Because they aren't like reading these files like a novel on a Sunday afternoon.
Speaker 2Oh, definitely not. They are graded on a point system for how fast they clear claims. Oh, wow. Yeah, they do not have time to hunt for clues in your statement. If you read enough of these statements, you start to see the shape of the ones that actually land and make an impact. Okay. So what's the shape? There is a very specific four-part structure to a successful statement. Yeah. And they need to go in chronological order because you are mapping your life directly to
Speaker 1the DBQ. The disability benefits questionnaire.
Speaker 2Exactly. The DBQ that the Raider has to fill out.
Speaker 1Okay. Let's walk through that blueprint.
Speaker 2What is step one? Step one is what happened? Okay. This is the factual event, the exposure or, you know, the duty that started the issue. Yeah. You need to outline where you were roughly when it happened and what you were doing. And the key here is to keep it reasonably short.
Speaker 1Wait. I'm going to stop you right there. Okay. The whole life has been derailed by this injury. My instinct is to give the Raider like 20 pages of proof. Right. Why on earth would I keep it short? Aren't I, you know, leaving ammunition on the table?
Speaker 2You might think so, but you are really just burying the ammunition under 20 pages of dirt. Ah. Remember the Raider's point system. They are under a timer. They need the facts of the inciting incident to establish service connection, but they do not need a novel about the weather that day unless, you know, it directly relates to the injury. Right. That makes sense.
Speaker 1Give them the facts and move to step two. Which is what happened next.
Speaker 2Exactly. When did the symptoms actually start and what did you do about them? And this is vital. you need to include with the stretches where you did absolutely nothing. -
Speaker 1Right, because I know half the veterans listening to this right now were told by their platoon sergeant to just, you know, take a motor and drink water and get back in formation. -
Speaker 2Oh yeah, standard issue advice. -
Speaker 1And you feel like acknowledging that lack of medical records makes you look like a liar. - Right. - But it doesn't. It makes you look like a soldier. - Yeah. - Tell the raider that. -
Speaker 2Yes, because raiders know human nature. If you say, "Look, my shoulder hurt, "but I didn't want to get pulled off duty, "so I just took ibuprofen and didn't report it "for two years," that has the ring of truth. - Yeah. - Honesty builds incredible credibility. -
Speaker 1Okay, so we have what happened and what happened next. What is step three? -
Speaker 2Step three is what it has been like since. - Okay. - This is the continuity. This is the narrative bridge that connects something that happened years ago, maybe decades ago, to something that remains true about your life today. It shows the ongoing nature of the condition.
Speaker 1Which brings us to the final part, step four. And I know this is the one we emphasize the most here. -
Speaker 2Step four is what it costs you now. - Right. - This is the current concrete impact on your life. This is the section raiders genuinely mine for information to determine your rating. And paradoxically, it is also the section that veterans consistently write the thinnest. -
Speaker 1Yeah, think of the raider like a human calculator. - Good analogy. They are legally bound to an algorithm. If you input a subjective emotion like, you know, it hurts a lot, the calculator gives an error message. -
Speaker 2Right, it doesn't compute. -
Speaker 1But if you input, it happens three times a week. You're feeding them the exact data points the algorithm requires to spit out a rating. And that algorithm uses four specific terms, right? Frequency, severity, duration, and functional impact. -
Speaker 2Exactly. If you write your statement using those exact same metrics, the raider does not have to translate anything. You are handing them the keys. -
Speaker 1Let's use an example to make this really concrete. Let's say a veteran comes to us with a knee injury. - Okay. - The natural instinct is to write on the form, my knee hurts a lot and it makes my life hard. -
Speaker 2Which tells the human calculator absolutely nothing it can actually use. A lot is entirely subjective. - Right. - But if we use the four measurements, it changes entirely. Instead of it hurts a lot, we say, my knee gives out on the stairs three times a week. That covers frequency and severity. -
Speaker 1Perfect. - And then we add duration. The pain is bad enough that I have to stop whatever I'm doing and it lasts roughly an hour before it settles down. -
Speaker 2And then the most important piece, functional impact. Because of this knee, I can no longer carry laundry up the stairs and I have basically surrendered the second floor of my own house. -
Speaker 1Wow, it's the identical veteran with the identical, but that second version maps directly onto the reading schedule. - Right. - The first version just does not. Does this apply to mental health too? Because a knee giving out on stairs is distinctly physical. How do I measure frequency and severity for something like PTSD or anxiety? -
Speaker 2The exact same way. - Really? - Yes. If a veteran writes I'm depressed and anxious all the time, the radar hits that same error message. - Right. - But if you map it to the four metrics, you describe that you are having panic attacks twice a week. There is your frequency. You describe that the attacks leave you completely unable to leave the house for two days. That severity and duration. -
Speaker 1And then the functional impact would be something like I've had to call out of work four times this month and I've stopped attending my kid soccer games because of the crowds. -
Speaker 2Precisely. You haven't exaggerated a single thing in either the knee or the mental health example. You are simply answering the questions that the VA's criteria were already asking. - Yeah. - And there is one crucial rule we always tell the veterans we work with when they're building this four-part structure. One condition per statement. -
Speaker 1Oh yeah. Do not put four different conditions onto one VA form, 21, 41, 38. -
Speaker 2Just don't do it. Keep the Raiders job simple. If they're looking at your knee claim, they want to read about your knee. - Right. - They don't want to sift through paragraphs about your hearing loss or your mental health to find the knee stuff. A simple job gets done right more often. -
Speaker 1That makes total sense. But here's the flaw in the system, right? You can write the most perfect four-part statement about your back injury. But if there's no medical record of you falling off that truck in 2014, the VA considers your statement uncorporated. -
Speaker 2Right. That's a huge hurdle. -
Speaker 1So how do we bridge a gap where absolutely no paperwork exists? -
Speaker 2We have to bring in witnesses. - Right. - That brings us to buddy statements. - And this is a massive point of confusion. - Yeah. - We call it the two-form split. VA form 21, 41, 38 is your form. It is for your own account of your own life. - Okay. - When somebody else writes on your behalf, it absolutely must go on a different form. The VA has a dedicated form just for this. VA form 21, 102, 10. -
Speaker 1The 21, 102, 10. -
Speaker 2Yes. It is the lay/witness statement. And it has been the designated form for this since June, 2021. -
Speaker 1Okay. So if you put a buddy's words on your own 41, 38, it just creates an administrative mess. - Exactly. - So use the 21, 102, 10. Now, who should we actually be asking to fill these out? -
Speaker 2The people worth asking are the ones who saw something you cannot document yourself. Maybe someone from your unit who was literally there when the event happened. A spouse who has watched the subtle, you know, daily changes in your mobility over the years or a supervisor who has seen the direct effect of your condition at work. -
Speaker 1You know, I see buddies write these highly emotional, passionate defenses of their friends, but passion doesn't make a buddy statement. Incredible. Specificity does. -
Speaker 2Yes, 100%. The statement must be first hand only. That means what the buddy personally witnessed with their own eyes, rather than something somebody else told them. -
Speaker 1Right, like Kierse. -
Speaker 2Exactly. No Kierse, it needs to be concrete and it needs to be dated wherever that is possible and it must be written in their own voice, not yours. -
Speaker 1Now, does the observe and describe rule apply to them too? -
Speaker 2Entirely, no medical opinions from your buddies. Your battle buddy can describe, you know, watching you limp off the aircraft after a hard landing. He can describe you wrapping your leg in ice every night in the barracks. - Yeah. - But he cannot diagnose the torn ligament that caused the limp because he is a lay witness, not a clinician. The rules of competently evidence applied to anyone filling out that 2110-210. -
Speaker 1Okay, so getting the structure right and using the correct forms is huge. But how do we accidentally sabotage ourselves? Because here at Warrior Allegiance, we see veterans make mistakes that can just completely sink an otherwise valid claim. -
Speaker 2Yeah, we do. And there is a hard truth we tell every veteran, it is the golden rule of lay evidence, describe accurately, never described strategically. -
Speaker 1Right, like, the template trap is real. I know it's so tempting to just Google what to say. -
Speaker 2It is incredibly dangerous to do that. - Yeah. - You have to remember Raiders read hundreds of these statements. -
Speaker 1Oh, I'm sure. -
Speaker 2They know exactly what a downloaded template sounds like. The cadence is unnatural, the phrasing is robotic. - Right. - The moment your statement reads like somebody else's downloaded template, the whole thing loses weight. You sacrifice your unique voice, which is the only thing that form is actually meant to capture. -
Speaker 1And even worse than templates, I think, is when a veteran overstates something and it ends up contradicting their own medical records. -
Speaker 2This is a fatal error. - Yeah. - If you write that your back pain is so severe, you haven't been able to walk unassisted for three years. - Right. - But your medical records from last month note that you run two miles a day, yeah. You have not just weakened with that one sentence in your statement. You have given the VA a legitimate reason to doubt everything else you wrote. -
Speaker 1Your credibility has just gone entirely. - Gone. - The most powerful statement in a claim file is a specific, ordinary, obviously true account of a hard week, just write that. - Yes. - When veterans work with us, we help them organize that truth. And we will absolutely tell you when something you wrote is not supported by your records because catching a contradiction at our desk is a great deal better than a writer catching it at theirs. - Definitely. - But what about the way veterans describe their bad days? 'Cause I know that trips a lot of people up. -
Speaker 2Oh, this happens all the time. They describe their worst day as if it were their average day. -
Speaker 1Okay, what do you mean? -
Speaker 2So a veteran will have a flare-up that leaves them bedridden, say, once a month. But they write their statement as if they are bedridden every single day. -
Speaker 1Ah, I see. So how should they handle that? -
Speaker 2Describe both and just clearly label which is which. - Okay. - Tell the writer what an average Tuesday looks like and then tell them what a flare-up on your worst day looks like. It paints a much more accurate, believable picture of your life. And most importantly, it protects your credibility. -
Speaker 1Okay, let's wrap this up and sort of summarize the core themes of this deep dive. The VA regulation makes your own words competent evidence for anything a regular person can observe and describe.
Speaker 2But that same rule stops you from diagnosing yourself or connecting conditions medically. - Right. - Leave that to the CNP examiner, give them concrete observations to work from. -
Speaker 1Exactly, map those observations into the four-part structure. And when you are writing the impact section of your statement, feed the algorithm, the language of the rating criteria, frequency, severity, duration, and functional impact, and use VA form 21, 4138 for your own words, and VA form 2110210 for your buddies. -
Speaker 2If you do those things, you're handing the reader a document they can actually use to help you. - Right. - And I wanna leave everyone with a final thought to mull over regarding that functional impact. - Okay. - Think about the daily workarounds that you have completely normalized. -
Speaker 1The things you don't even notice you're doing anymore. -
Speaker 2Exactly, taking the elevator instead of the stairs, avoiding certain chairs because they just hurt your back to get out of snapping. Looking at your spouse because you haven't had a full night sleep in weeks due to pain, you might not even realize these are functional impacts because they have just become your normal life. You have to look closely at your own life, acknowledge the things you've had to change and put them on that form.
Speaker 1That is powerful. If you are sitting on a claim right now, go back and read your own statement with fresh eyes. See if you miss those normalized workarounds. Then, send this deep to us to a veteran you know who is about to write their statement for the first time. And if you want our help on your claim, get started at warrior allegiance dot com slash get started. One more time get started at warrior allegiance dot com slash get started warrior allegiance
Speaker 2is a veteran owned consulting company. We are not VA accredited and we are not a law firm accredited veteran service officer help that is a VSO is available at no cost. Find your nearest VSO at VA dot gov slash OGC slash accreditation. This podcast is general education from public sources, not individualized legal or medical advice.
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