Written by attorney Christopher Francis Attig

Guide to use of Lay Evidence in Veteran's Benefits Claims

Veterans filing disability compensation claims for injuries incurred while in military service do not always have medical evidence to support their claims. If a Veteran has "lay evidence" - evidence that does not come from a medical or other expert - the VA Regional Office (VARO), Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) are required to consider that evidence.

The existence of lay evidence or testimony is not - and should not be - a bar that prevents the Veteran from recovering benefits (though sometimes, this can happen).

Here are examples of when a Veteran can properly rely on lay evidence:

  1. Lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
  2. Lay evidence or testimony is competent to identify certain medical conditions. Most times, lay testimony will be competent to identify a simple or unmistakeable medical condition, for example: a broken leg. A Veteran may not be competent to identify and distinguish between types of cancer, however.
  3. Lay evidence or testimony is competent to report a contemporaneous medical diagnosis. For example, a Veteran can testify that he was diagnosed with a medical condition.
  4. Lay evidence or testimony is competent to prove up factual matters within that witnesses personal knowledge. For example, a Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). This is not necessary lay testimony to establish a diagnosis of a current condition, but lay testimony as to “continuity of symptomatology" -an important element of some forms of direct service-connection.

When the Veteran introduces lay evidence, the VARO or the BVA may not categorically exclude it because it references medical matters.

The VARO and BVA must:

  1. Determine whether the lay evidence is competent - and provide adequate explanation of its determination; See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
  2. Weigh the lay evidence against other evidence of record to make a determination of its probative value on the question of entitlement to service connection; See Buchanan v. Nicholson, 451 F.3d 1331, 1334-1337 (Fed. Cir. 2006).
  3. Where appropriate, make a credibility determination as to whether the evidence supports a finding of service connection and continuity of symptomatology. See Barr v. Nicholson, 21. Vet. App. 303 (2007).

Take away point: If the VARO or the BVA have disregarded lay evidence they must provide adequate reasons and bases for their rationale, including thoughtful explanations as to why the evidence is or is not probative, is or is not credible, or why it is outweighed by other probative and/or credible evidence. If the BVA or VARO fails to do this, you may have grounds to appeal the decision.

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