Veteranclaims’s Blog

October 14, 2009

Lay Evidence, What It Is, What It Is Not, and Negative Evidence

In this post we are going to start a series of posts looking at lay evidence. Lay evidence is powerful evidence which the veteran can use to help win his claim,
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (stating “competent lay evidence can be sufficient in and of itself” to obtain disability benefits).

However, like any powerful evidence you need to know what it is, what it is not, and how and when the VA can discount it. So we recommend that you contact a legal representative of your choice to help you, as we will only be making general statements abut this subject and refence cases that will hoepfully fill in some of the gaps.

It is important for veterans to make sure that their lay evidence describes the material and relevant facts observed and that they give a time frame for these observations, You do not want to merely state conclusions based upon opinion because that may require medical knowledge, unless it is a “simple” medical condition, see Jandreau; see also 38 C.F.R. § 3.307(b), “[t]he factual basis [for establishing a chronic disease] may be established by medical evidence, competent lay evidence or both…. Lay evidence should describe the material and relevant facts as to the veteran’s disability observed within such period, not merely conclusions based upon opinion.”

It takes clear and convincing evidence to counter competent lay evidence.
McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006) (competent testimony “can be rejected only if found to be mistaken or otherwise deemed not credible, a finding . . . the Court cannot make in the first instance”). What we have seen most here is that the VA asserts negative evidence when it tries to counter lay evidence. Negative evidence is another concept that is difficult to understand, you really need to get legal help with these concepts to fully understand them.

In Jandreau the FedCir put forth that lay persons are competent to reconize “simple” medical conditions.Jandreau v. Nicholson, 492 F.3d1372,1376-77, 1377 n.4 (Fed. Cir. 2007) (holding that “[l]ay evidence can be competent and sufficient to establish a diagnosis when . . . a lay person is competent to identify the medical condition” and providing, as an example, that a lay person would be competent to identify a “simple” condition like a broken leg, but would not be competent to identify a form of cancer).

So what are “simple” medical conditions? A list, as such, was not found but some cases that addressed simple medical conditions were found; flat feet [pes planus], varicose veins, tonsillitis, and tinnitus [ringing in the ears]

These are rough excerpts, included are links to the full decision which need to be read in order to get a grasp of this simple, yet complex issue of lay evidence.

Falzone v. Brown, No. 93-942 (Decided November 14, 1995 )
appellant’s pes planus is the type of condition that lends itself to observation by a lay witness.

Barr v. Nicholson, 21 Vet.App. 303, 309 (2007)
… lay claimants are competent to self-diagnose varicose veins because that condition is relatively simple.

… clearly competent to offer testimony regarding the onset and observable symptoms of his conditions

McLendon v. Nicholson, No. 04-0185 (Decided June 5, 2006 )

As noted by Representative Evans, the development of arthritis in a person’s knees and the fact that that person had been a paratrooper with numerous jumps ” indicates” that his disability “may be associated” with his service. See 146 Cong. Rec. H9912, H9917.

Similarly, exposure to “noise from a rifle range, bombing, artillery fire, trucks, and heavy equipment” with credible testimony of ringing in the ears”ever since service” indicates that a hearing disability may be associated with service. Charles, 16 Vet.App. at 372-74.

In Charles, the appellant sought to establish service connection for tinnitus and testified that he had experienced ringing in his ears while in service. Charles, 370 Vet.App. at 374. The Court stated: “Regarding such lay evidence, the appellant is competent to so testify because ringing in the ears is capable of lay observation.” Id. (citing Caluza v. Brown, 7 Vet.App. at 504 (where determinative issue does not require medical expertise, lay evidence may suffice by itself), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table))

Neely v. Shinseki, NO. 07-1570, Before SCHOELEN, Judge.
MEMORANDUM DECISION
, Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

The Court agrees with the appellant that, like varicose veins, tonsillitis is a relatively simple condition, and that a lay person is capable of self-diagnosing that condition.

Not Simple Medical Conditions

The etiology of an internal physical condition is a matter that requires medical knowledge when the cause of a disability cannot be observed by a lay person. Grover v. West, 12 Vet.App. 109, 112-13 (1999); see also Jandreau, supra. Because the internal workings of the knee cannot be diagnosed by a lay person, the Board did not err in finding that Mr. Cope’s lay statements were not competent to establish the etiology of his right knee condition. See Grover, 12 Vet.App. at 112-13.

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