Consult Questions VA Disability Attorneys Should Ask Before Opening a Case

The questions an attorney asks at initial consult determine what records to pull, what service connection theory fits, and what gaps staff needs to close before anyone opens the C-file. Consult is not background-gathering. It is case-work triage, and what gets captured there shapes everything downstream.

Service History: The Facts That Anchor the Theory

Branch, dates of service, military occupational specialty or rating, deployment locations, and documented in-service injuries or exposures are the minimum the attorney needs before a theory can form. These facts determine whether the case runs on direct service connection, a presumptive, or secondary connection, and they control which service treatment records to request.

Direct service connection under 38 CFR § 3.303^[1] requires evidence of an in-service event or injury, a current diagnosis, and a nexus between the two. If the veteran cannot name the event or the condition developed years after separation, the theory may shift to continuity of symptomatology or a presumptive path. Knowing the MOS and deployment locations at consult tells staff what records to pull and tells the attorney whether the facts fit a recognized exposure or stressor category before the C-file arrives.

For PTSD specifically, 38 CFR § 3.304^[2] allows the veteran's lay testimony alone to establish the in-service stressor if a VA psychiatrist or psychologist confirms the stressor is adequate to support a diagnosis and the stressor is consistent with the places, types, and circumstances of the veteran's service. That procedural path changes what records the firm needs and what the attorney evaluates at review.

What goes into the case file at this stage: the branch, service dates, MOS, deployment locations, any self-reported in-service events or exposures, and a preliminary theory flag. Staff can use that to open service treatment record requests immediately under M21-1, Part III, Subpart ii, Chapter 2, Section A^[3] procedures. Whether the theory holds once records arrive is a judgment call the attorney makes then.

Prior VA Decisions and Rating History

Prior rating decisions are source material, not background context. They set the effective date posture, identify issues already adjudicated, and reveal whether a prior claim was properly developed. At consult, ask the veteran to describe every VA decision they remember, including denials, and to bring whatever paperwork they have.

The reason prior decisions matter procedurally: if an issue was previously denied and no appeal was filed, the denial may be final. Reopening it requires new and relevant evidence under 38 CFR § 3.2501^[4], meaning evidence not previously part of the record that tends to prove or disprove a matter at issue. If the veteran has a pending appeal, the AMA lane matters and the options are different. The attorney cannot choose the right path without knowing what has already happened.

What goes into the case file: copies of any decisions the veteran provides, decision dates, rating percentages, identified issues, and a flag for the attorney noting whether the record shows a final denial, an open appeal, or a previously unadjudicated condition. Staff can catalog what is on hand. Deciding whether development failures in a prior claim create a basis for CUE or reopen the issue is attorney work.

Current Symptoms and Functional Limits

The rating criteria under 38 CFR Part 4^[5] measure disability in terms of limitation of activity. A consult that captures only the diagnosis misses what the rating schedule actually evaluates. Ask what the veteran cannot do now that they could do before. How often does the condition flare. Does it affect sleep, concentration, mobility, or the ability to follow a routine. The answers connect directly to what the C&P examiner will document and what the rating decision will credit.

This is where the examiner's job and the attorney's job intersect early. Under 38 CFR Part 4, accurate examinations must reflect the limitation of activity the disability imposes. If the veteran describes symptoms at consult that a later C&P exam fails to capture, the firm has documented evidence of an exam deficiency before review even begins.

What goes into the case file: a symptom and functional limit summary in the veteran's own language, flagged for attorney review. Do not clean up or interpret the language at this stage. The treating source documentation and C&P report will later confirm or contradict what the veteran describes. That comparison is part of the attorney's case analysis.

Employment History and TDIU Eligibility

TDIU under 38 CFR § 4.16^[6] requires that service-connected disabilities render the veteran unable to secure or follow substantially gainful employment. The schedular thresholds are: one disability rated at 60 percent or more, or two or more disabilities with at least one at 40 percent and a combined rating of 70 percent or more. Extraschedular TDIU is possible below those thresholds but requires a referral.

At consult, ask:

• Is the veteran currently working? If not, when did they last work and why did they stop?
• What was the last job title and industry?
• Did service-connected conditions cause the job loss or force reduced hours?
• Has the veteran received Social Security disability benefits? If so, what was the SSA's finding?

The Social Security record can contain treating-source documentation and functional capacity findings that support TDIU even before the VA file is ordered. That is a potential source to request immediately.

What goes into the case file: employment history, last date of work, reason for separation from employment, any SSA disability history, and a TDIU eligibility flag. If the schedular thresholds appear met, that flag goes to attorney review before workup. If the facts are close but unclear, the attorney decides whether to pursue extraschedular TDIU under § 4.16(b) after reviewing the complete record.

Treatment History and Treating Sources

Ask where the veteran has received care: VA medical centers, community-based outpatient clinics, private physicians, urgent care, mental health providers, and any specialists. For each provider, ask roughly when treatment began, whether it is ongoing, and what conditions were treated. This tells the firm which records to request and which signed authorizations to prepare now.

Private medical records require a signed VA Form 21-4142, valid for 12 months from the date of signature, which authorizes VA to request records from non-VA sources. VA Form 21-4142^[7] Waiting until formal workup to prepare that authorization delays the record by weeks. If the veteran identifies a treating source at consult, the 21-4142 should be prepared and signed before the consult ends or immediately after.

VA medical records are governed by the duty to assist under 38 CFR § 3.159^[8], which requires VA to make reasonable efforts to obtain records from VA facilities and other federal agencies. That duty does not relieve the firm of knowing which facilities treated the veteran and whether those records are in the file.

What goes into the case file: a treatment history list with provider names, facility types, and approximate treatment dates, paired with a task for each record request that needs to be opened. Staff owns the requests. The attorney will evaluate the treatment record once it arrives.

Missing Records: Identifying Gaps Before File Review

A consult that ends without surfacing record gaps forces the attorney to do development work during review. That wastes attorney time and delays the case.

Ask directly:

• Are there service periods, deployments, or medical events the veteran believes are not well-documented?
• Did the veteran receive treatment at a private facility that VA would not have records of?
• Are there fellow servicemembers who witnessed the in-service event or treated the veteran?
• Were any records destroyed, lost, or filed under a different name or Social Security number?

The 1973 fire at the National Personnel Records Center destroyed a significant portion of Army and Air Force service records for veterans separated between 1912 and 1964. For veterans in that range, substitute records and affidavits may be necessary. Even outside that range, incomplete STR production is common. If the veteran's description of their service does not match what a standard STR request would likely produce, flag it now.

Buddy statements support certain claim types, particularly PTSD stressor claims and continuity of symptomatology arguments. VA Form 21-10210^[9] is the formal lay statement form. Identifying potential buddy statement witnesses at consult gives staff time to contact them and prepare the form before workup.

What goes into the case file: a documented list of identified record gaps, each converted to a task with an owner and a method. STR gaps go to the STR request queue. Private provider gaps go to the 21-4142 queue. Buddy statement needs go to a witness contact task. Nothing should be a mental note at consult.

Handoff from Consult to Case File

A consult is only useful if its output survives the handoff. The facts, gaps, and flags the attorney or paralegal captures during the meeting need to live in the case file before the veteran leaves the room or the next case starts.

A consult is only useful if its output survives the handoff. The facts, gaps, and flags the attorney or paralegal captures during the meeting need to live in the case file before the veteran leaves the room or the next case starts, because they drive the representation documents, ITF filing, and source record requests that follow.

The case file at end of consult should contain:

What was captured	Resulting case-file item
Service history facts	Theory flag, STR request task
Prior decision documents	Decision log, effective date posture note
Symptom and functional limit summary	Evidence note, attorney review flag
Employment history	TDIU eligibility flag, SSA record request if applicable
Treatment source list	Provider log, 21-4142 task per private source
Identified record gaps	Gap log, task per gap with staff owner
Potential buddy witnesses	Witness contact task, 21-10210 preparation task

The attorney review items that come out of consult are not strategy decisions yet. They are flags that tell the attorney what needs judgment once the record arrives: whether the theory holds, whether the TDIU facts clear the threshold, whether a prior denial can be reopened, and whether the lay testimony is sufficient under the applicable regulation. Pete attaches these items to the case record so the attorney reviews facts and gaps rather than reconstructing what the consult covered.

Related guides

How to Review a DD214 During VA Disability Case OpeningWhat firm teams must extract from a DD214 at case opening, which fields drive eligibility and theory, and what gaps should trigger follow-up before attorney review.Red Flags to Catch During VA Disability Case OpeningMissed deadlines, weak nexus, prior denials, bad exams, and incomplete service records are the intake red flags most likely to delay or sink a VA disability case.