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Daniel L. Nagin, The Credibility Trap: Notes on a VA Evidentiary Standard, 45 Memphis L. Rev. 887 (2015).

Abstract: This Essay explores some of the dimensions of traditional evidence law when it is applied in the realm of veterans benefits. In particular, the Essay focuses on VA credibility determinations, which have been the subject of several important court decisions in the last few years and are a common issue raised on appeal when veterans challenge adverse VA decisions on judicial review. The central point is that even though the veterans benefits field is permeated with so-called "veteran friendly" presumptions and legal doctrines, including with respect to the weighing of evidence, VA continues to disbelieve veteran claimants by relying on a common law credibility test that is too often nonsensical as applied and decidedly veteran unfriendly in practice. I call this dynamic the credibility trap. When VA communicates to a veteran that it does not believe him or her, VA sends a powerful and disquieting message to those who have worn the uniform. So, it is especially important that VA get it right when making an adverse credibility determination. No agency can be expected to adjudicate complex cases, which disability claims very often are, with 100% accuracy. But the framework VA uses to decide whether a veteran is credible should have sufficient protections to limit the number of false negative errors. The credibility trap has downstream consequences too, beyond depriving individual veterans of earned compensation. It contributes to VA's own administrative burdens, as claims denied on credibility grounds are prone to enter already backlogged appeal, remand, and claim reopening pipelines. The point is not that VA should somehow be prohibited from evaluating a veteran's credibility or from finding a veteran's statements incredible, or that VA should approve every claim a veteran files. Rather, as explained more fully below, the point is that the credibility trap reveals one of the less visible tensions in VA benefit scheme when common law standards from adversarial proceedings are married to the supposedly informal, non-adversarial framework of the veterans benefit system. There are important lessons from this experience for efforts to reform VA system.