The case against attorney use of VA Form 21-4138
In a recent court appeal, the VA was relying on the unsigned and unsworn statement of a random government bureaucrat.
This bureaucrat was "testifying" to the lack of existence of any evidence that my client was exposed to the herbicide agent orange. The statement provided no legal foundation: no identification who the bureaucrat was, the source of his knowledge, the basis for his expertise, etc.
It was, in the end, a self-serving memorandum used by a government agency that has often allowed the phrase "non-adversarial" to mean "lack of any legal structure".
For too long, we advocates have been complicit in this practice - we have come to rely on the "informality" of the VA claims process and failed to insist on proving our client's cases to their optimum using basic and sound evidentiary principles.
A perfect example of this is VA Form 21-4138: the most worthless VA form in the VA's entire catalog.
On another blog, I write to educate pro se veterans on basic principles of law in VA claims and appeals, I've gone on record saying this form is legally worthless, and I stand by that assessment.
The other day, an attorney of substantial experience before the VA challenged me to provide legal support for my belief that the VA Form 21-4138 is legally worthless.
The answer to her question could benefit the whole community of veterans advocates by helping us making tighter and more solid evidentiary proofs for our clients, so let me walk you through my answer.
What is the VA Form 21-4138 and how has it been used?
The VA Form 21-4138 is known as the "Statement in Support of Claim".
It is, for all practical purposes, the VA Form for a blank piece of paper. (I would typically link to the form here, so you can see it, but I am not going to link folks to a form that I think they should stop using).
For years, pro se veterans and VSOs have used this form for every purpose imaginable in a claim. It is not uncommon to see 50 -- or more -- copies of VA Form 21-4138 in a Veteran's C-file.
It has been used to file informal claims and claims for increases. It has been used for status requests, or to tell the VA you want to add dependents. It has been used to submit notices of disagreement and substantive appeals. It has been used to attempt to trigger the VA's duty to assist.
Worst of all, perhaps, it has been used for "buddy statements". In VA practice jargon, a "buddy statement" is the words of another lay person who can corroborate some testimony from the veteran.
The name comes from suggestions that the veteran get a statement from their military buddies as to an event that happened in service.
Why do I think VA Form 21-4138 "legally worthless"?
Above the signature line on VA Form 21-4138 is the following phrase:
“I certify that the statements on this form are true and correct to the best of my knowledge and belief.”
Attorneys that still rely on the rules of evidence, and attorneys just out of law school, know the danger of this phrase. It is, in my opinion, a legally worthless phrase.
A Federal District Court Judge once told me that if a witness wants to really harm his credibility, he should use those 8 words: “to the best of my knowledge and belief.” The words are pithy, self-serving, and most judges (trial and appellate) recognize them for the puffery they are, meant only to bolster that which is outside the witness's direct knowledge.
That's not just one judge's words.
In fact, the American Bar Association - attorneys with a federal practice typically look to the ABA as a broad starting point for guidance on general legal and ethical matters - has published an entire article that discusses the meaning of "best of my knowledge and belief".
The ABA observes that most reported cases about the meaning of 'best knowledge' have reached the conclusion and hold that if a person uses the term “best knowledge” in an affidavit, application, or representation the term embodies a level of uncertainty. The ABA cites a littany of cases in a littany of contexts in which the phrase has been interpreted to represent not certainty or reliability, but uncertainty.
This should be eye opening for the attorney or VSO that uses a government form submitted as a veteran's best knowledge: the preponderance of the case law on the phrase supports an interpretation that an attorney is submitting evidence that embodies a level of uncertainty in the witness's words.
With that background, let's start from the beginning so you can understand why veterans lawyers and VSOs should stop using VA Form 21-4138 for evidentiary submissions.
Competent and Reliable Evidence Almost Always Requires Personal Knowledge.
The foundation of all reliable evidence is personal knowledge.
If you know a fact, personally, you are competent to testify to that fact. If you don't know something, you are not competent to testify to that fact.
Competence (and credibility) are the foundations of all evidence in a BVA appeal.
If a BVA judge finds your evidence to lack competence, that's the end of it - it will be afforded no weight in the BVA's decision, and the CAVC will invariably affirm the BVA's competence determination.
Take the case of Dovain Otterson - a veteran who submitted various statements from friends and family members stating that the veteran had been suffering from back problems since the 1960s, after leaving military service.
Now, I don't know if the statements were submitted on VA Form 21-4138, but appellant's brief identifies the documents as "statements in support" in his Table of Record Citations.
The BVA rejected the "buddy statements" submitted by the veteran because the witnesses lacked personal knowledge: they did not know the veteran at the time they claimed he had back problems. (See page 17 of the BVA decision, here). At its core, this is a problem: the witnesses lacked personal knowledge and therefore, lacked competence to testify beyond that personal knowledge.
Judge Bartley, writing for the Court, latched on to that point. What the Court wrote should send chills through the spine of any attorney who has relied on a VA Form 21-4138 to introduce witness testimony in a BVA appeal:
“Because competence involves personal knowledge of a fact and the expertise necessary to testify to that fact, see Layno, 6 Vet. App. 465, 469-470 (1994), the lack of either would diminish the probative value of the buddy statements, as outlined by the Board. [Record Citation omitted]. Thus [the BVA] did not err in discounting the probative value of the buddy statements in those regards.” Otterson v. McDonald, 2016 U.S. App. Vet. Claims LEXIS 62 (January 21, 2016).
Ouch. There goes the case.
Stop reading, open up your notebook of important ideas, and write this on the next blank page: witness testimony in a VA claim or appeal lacks competence unless the witness testifies that he or she has personal knowledge of the facts he or she is testifying to.
This is critical.
To explain how it can hurt a veteran's appeal, we are going to look back almost 20 years in CAVC history, and talk about the Brokaw case.
In that appeal, the veteran's attorney was trying to include a VA Form 9 in the record that the VA claimed to have never received. The attorney included a statement that he prepared and hand delivered the VA Form 9, stating he did so to "the best of his information and belief."
A 3 judge panel of the Court of Appeals for Veterans Claims rejected his testimony. The panel made clear, citing Federal Circuit, 9th Circuit and DC Circuit case law that "the phrase 'to the best of my knowledge and belief,' or 'information and belief' signifies indirect knowledge" and is insufficient to create the personal knowledge essential to competent evidence. (It didn't help that the attorney's argument contradicted his own statement: "It is true that a Form[] 9 was not filed ... "). Brokaw v. West, 13 Vet. App. 134 (1999).
As a result, the CAVC panel did not allow the VA Form 9 into the record.
If the attorney truly prepared and hand delivered a VA Form 9 to a VA Regional Office, then he should have testified to that fact, from his personal knowledge.
Remember that the phrase "to the best of my knowledge" in the body of law governing BVA appeals, at best signifies indirect knowledge, and indirect knowledge is rarely competent evidence of facts requiring personal knowledge.
Given that, it is clear the danger in using a VA form that presents evidence with only the statement "to the best of my knowledge and belief."
Do I commit malpractice if I use this form?
I cannot say VSOs and attorneys who use this form commit malpractice.
The VA Form 21-4138 is so widely used that it is probably a common industry practice at this point, and so measuring attorneys by that "standard of care" suggests that they are not being negligent in representing their clients by using VA Form 21-4138.
I don't know about you, but I don't represent clients just well enough to avoid committing malpractice.
I represent my clients in the hope I can prove and win their appeals using the power and skill of my advocacy.
What should attorneys use instead of VA Form 21-4138?
My firm uses a Sworn Declaration to submit most written lay testimony.
The first statements in our version of the Sworn Declaration includes the statement that testimony is proffered not only "under penalty of perjury", but also from the personal knowledge of the witness.
Proffering a statement under penalty of perjury is important: it adds reliability to the evidence for both the attorney representing the veteran and the BVA.
We don't stop there, though.
We lay the evidentiary predicate (or foundation) for the specific testimony we are propounding.
Some attorneys and VSOs have suggested we are too formal.
They remind us, "It's is a non-adversarial system, stop making it hard." The belief, I suppose, is that formality, veracity and reliability in evidence is adversarial.
First of all, our clients pay us a lot of money to handle their cases correctly. I don't care if it's hard or easy - I'm going to do the best work I can.
Second, my personal belief is that veterans who served to defend (among other things) the adversarial search for the truth that is the hallmark of the American justice system are entitled to an adversarial search for the truth in their VA claims.
The VA and veterans' representatives have different concepts of what a non-adversarial process is. The VA tends to think it's whatever makes their job easier. VSOs and attorneys representing veterans tend to believe it is a less formal and more relaxed system.
Assuming that the non-adversarial system is Constitutional, neither party is correct.
An adversarial system is one where 2 opposing parties to a dispute present their differing positions to an impartial finder of fact, who attempts to sort out the truth of the matter.
A non-adversarial system, then, is one where both parties work together to present the same position to an impartial finder of fact, who attempts to verify the truth of the matter.
But here is what is truly critical: when your client's case goes to the Court of Appeals for Veterans Claims or the U.S. Court of Appeals for the Federal Circuit, evidence submitted at the "non-adversarial" administrative stage of the appeal will need to survive judicial scrutiny at the undisputedly adversarial court stage of the appeal.
So when it comes to evidence at the BVA, a "non-adversarial" process is not license to produce less formal, precise and reliable evidence.
It does NOT mean that evidentiary foundations, or the standards that are used to establish the veracity and reliability of evidence, have been relaxed or are less formal just because the process is itself less adversarial.
In fact, over the past decade or so, there has been a trend in the BVA and CAVC to look to the Federal Rules of Evidence to determine whether evidence is competent, probative or reliable. Here are just a few of the rules that have shown up in CAVC decisions over the past decade:
Federal Rule of Evidence 201(b)
Federal Rule of Evidence 608(a)
Federal Rule of Evidence 609(a)(1)
Federal Rule of Evidence 803(7)
Federal Rule of Evidence 803(10)
Federal Rule of Evidence 803(18)
Federal Rule of Evidence 804(b)(3)
This trend is not solely at the Veterans Court.
A recent BVA decision we are reviewing for possible appeal determined that the concepts underlying Federal Rule of Evidence 803(4)(Hearsay exception for statements made for medical diagnosis or treatment) controlled the admission of extrinsic evidence to impeach a witness's credibility by contradiction).
Let's recap:
#1: The phrase "best of my knowledge and belief" is the foundation for VA Form 21-4138.
#2: The phrase best of my knowledge and belief connotes uncertainty, not personal knowledge.
#3: Under the rules of the BVA system, and the Federal Rules of Evidence, evidence that does not come from personal knowledge is not competent or probative.
#4: The BVA and CAVC are increasingly looking to the underpinnings of the Federal Rules of Evidence, and the rules themselves, to assign weight to evidence and to review the BVA's weighing of the evidence in its decision.
Add those factors up, and what you get is this conclusion: the VA Form 21-4138 connotes uncertainty in testimony, not reliable personal knowledge in testimony. The form does not lay a proper evidentiary foundation for competent and probative evidence, and the BVA and CAVC are increasingly rejecting evidence that is not competent and probative.
So, in your clients' claims and appeals before the BVA, I offer two recommendations:
- Stop using VA Form 21-4138 to submit evidence; and,
- Use formal affidavits and sworn declarations to establish, under penalty of perjury, the proper foundation for any witnesses testimony.
In fact, when you take over a new case, go through the C-File and determine what testimony the veteran (or another witness) has offered in a VA Form 21-4138. Put that testimony into an affidavit, under penalty of perjury, provide the proper evidentiary foundation, and resubmit it to the VA.
By doing so, you make it much harder for the BVA to find that the testimony is not competent or probative. You also increase the certainty and reliability of your witnesses' testimony.
When reliable and certain evidence is offered against vague and unreliable "VA letter statements" like the one I mentioned at the beginning of this post, your witnesses' testimony may prove more reliable and carry the day for your client.
In the end, isn't that what we as attorneys are trying to do?
Pro Tip: It is at least theoretically possible in certain situations that newly admissible and competent testimony is new and material evidence sufficient to re-open a claim, particularly if the facts in the new affidavit are relevant to the reason the prior claim was denied. In the interest of full disclosure, this is an unproven strategy, so I mention it only for you to think about. If you plan to try this approach in your client's BVA appeal, you might want to reach out to an appellate attorney to see if the strategy will hold up in a court appeal of your specific case.
