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 can prove factual matters by relating first hand knowledge. These statements do not always have to come from people that served with the Veteran. 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. Buddy statements are acceptable by the VA and van 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 and his service medical records are missing, but his crewmate remembers taking him and why, then the buddy statement can replace those missing medical records as evidence.
Lay Evidence of Medical Conditions
This gets a little more complicated. All medical diagnoses must be provided up by experts such as doctors or psychiatrists. However, a lot of medical information can be used as evidence 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. Relating 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 such as an EMT or a firefighter 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 You Need Expert Evidence
An expert must give testimony or evidence when the evidence is something that only a person with special skills or knowledge can attest to. 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.
Knowing When to Use What
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.