Lay Evidence to Support a VA Disability Claim
Providing enough evidence is a key part of filing a successful disability claim through the United States Department of Veterans Affairs. The right types of evidence show that your disability occurred as a result of military service, proving that you’re entitled to veterans disability benefits. While medical evidence is important to VA claims, veterans may also obtain lay evidence. Here, we will break down the basics of lay evidence for VA claims.
What is Lay Evidence?
Competent lay evidence is evidence that is provided by someone who is not considered an expert in the matter at hand. Specifically it is evidence that does not require to be presented by someone with specialized education, training or experience but can provided by someone who has knowledge of facts or circumstances and that can be observed and described by a lay person.
Most of us use lay evidence everyday. We can see that Joe came to work late or that Anna made her bed and can relay those facts to other people without the help of experts for proof or verification. There are many forms of lay evidence that the VA allows in disability compensation claims, so we will explore them and how they can be used.
Buddy statements are statements that provide details about the in-service incident that caused the injury or illness, as well as the symptoms of the veteran’s current disability. While fellow service members often write buddy letters, these statements do not always have to come from people that served with the veteran. Family members and co-workers often write buddy statements for a veteran’s claim. A buddy statement can be from a parent who witnessed a behavior change in their child, a wife who saw her husband in severe pain or unable to do certain tasks after an injury, or a service member who witnessed a fall or head trauma that was never recorded. The VA accepts buddy statements, so these statements can be used to prove that events happened when there are no or limited records of them. If a Veteran went to sick call because he got hit on the head during active duty, and his service medical records are missing, but his crew mate remembers taking him and why, then the buddy statement can replace those missing medical records as evidence. These statements may also act as corroborating evidence for a professional medical opinion. Claimants can submit buddy statements using VA Form 21-4138, which is the Statement in Support of Claim form.
Lay Evidence of Medical Conditions
This gets a little more complicated. Experts like doctors and psychiatrists must provide all medical diagnoses. However, the VA can use various medical information as evidence of an in-service injury or illness if it is presented by a person within their scope of knowledge and training. For example, anyone can say that the person was unconscious, that is something that almost any person is able to determine. Most of us, without any specialized training can also determine is someone is bleeding, has a broken bone, or is exhibiting certain symptoms. Relaying what we observe is well within everyone’s scope of knowledge and can be used as lay evidence in all claims.
However, someone with specialized training could provide certain expert evidence. This applies to professionals like EMTs or firefighters with paramedic training. They could give statements within the scope of their training such as that someone was in cardiac arrest or having a respiratory event. They could not diagnose, but they could give more detail than the average lay person.
Examples of what you can and cannot report with lay evidence are:
|Can not report with lay evidence:||Can report with lay evidence:|
|Alzheimer’s Disease||Memory problems|
|Disc herniation||Skin disorders such as rashes|
|Bronchial Asthma||Asthma symptoms|
When Do You Need Expert Evidence?
While lay evidence can be effective in supporting a claim for VA benefits, it’s important to know when expert evidence is necessary. An expert must give testimony or evidence when the evidence is something that only a person with special skills or knowledge can attest to. This is the case with professional medical opinions. For example, Joe was able to tell that Mike couldn’t walk any better after 6 weeks of physical therapy, but only the doctor could say that it was because Mike had herniated discs in his back and physical therapy was not helping him. Only someone specially trained in that field could give that specific type of evidence.
This gets a little tricky when it comes to diagnosing medical conditions as well. For example, Susan works in a Community Mental Health Agency as a Psychiatric Assistant. Her husband is exhibiting symptoms that are exactly like the people who come in and are diagnosed with PTSD. Even though she is knowledgeable enough to recognize this as PTSD, she is not licensed to diagnose it therefore could not give lay testimony that her husband has PTSD. She can, however, give lay testimony concerning what symptoms she has observed him exhibiting. A medical examination would be necessary to show an actual diagnosis.
Knowing When to Use Lay Evidence
When Veterans use lay evidence in their claim, the regional office has to make determinations on several different issues to determine whether the lay evidence is credible.
- It must determine if the law evidence is competent and provides an adequate explanation of determination (Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007)
- It must weigh the lay evidence against other evidence to make a determination of it value on the claim (Buchanan v. Nicholson, 451 F.3d 1331, 1334-1337 Fed. Cir. 2006)
- It must make a credibility determination as to whether the evidence supports a finding of service connection and a continuity of symptomology (Barr v. Nicholson, 21. Vet App. 303 2007)
The bottom line of this is that it is better to provide more evidence than less. If you are unsure if the lay evidence is admissible, either confer with your representative or attorney, or submit it and have the RO determine its admissibility based on the above criteria.
Don’t Give Up!
Never give up on a claim, even if you only have lay evidence to support it. Chances are there is more evidence out there; it just takes some digging and maybe some professional assistance to find it. Many agencies have professionals that know how to dig up those old deck logs or medical records and their staff is excellent at finding those brief statements in records that can back up a diagnosis or sometimes find new claims that Veterans didn’t know they were entitled to. Again, the bottom line is do not give up. Ask questions, get help, keep trying. Sometimes that lay statement can make the difference between awarded or denied.
Have Questions About Your Lay Evidence VA Claim?
If you are appealing a claim and want to include lay evidence, the team at Hill & Ponton can help. We specialize in social security and veterans’ disability cases. Our veterans’ law experts are available to guide veterans through the claims process and appeals requirements, so you can obtain the veterans’ benefits you deserve. Contact us today for a free case evaluation.
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