Lay Evidence

1. NACVSO 2019 CVATraining
Presenter:
Katrina J. Eagle

2. 38 U.S.C. § 5103A – Duty to assist claimants
 (d)(2): Medical Exams for Compensation Claims:
When deciding whether an examination is
necessary, the Secretary shall consider the
evidence of record, “taking into consideration
all information and lay or medical evidence
(including statements of the claimant).”

3. 38 C.F.R. § 3.159 –VA Assistance in Developing Claims
 § 3.159(a)(2): “Competent lay evidence means any
evidence not requiring that the proponent have
specialized education, training, or experience. Lay
evidence is competent if it is provided by a person who
has knowledge of facts or circumstances and conveys
matters that can be observed and described by a lay
person.”

4. 38 CFR § 3.303 – Principles Relating to Service Connection
 § 3.303(a): “Service connection connotes many factors but
basically it means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service . . . Each
disabling condition shown by aVeteran’s service records,
or for which he seeks a service connection must be
considered on the basis of the places, types and
circumstances of his service as shown by . . .

5. 38 CFR § 3.303 – Principles Relating to Service Connection
. . .
1. Service records,
2. the official history of each organization in which he
served,
3. his medical records
4. and all pertinent medical and lay evidence.
Determinations as to service connection will be based on
review of the entire evidence of record. . .”

6. 38 CFR § 3.304 – Direct Service Connection
 § 3.304(d) Combat: “Satisfactory lay or other evidence
that an injury or disease was incurred or aggravated in
combat will be accepted as sufficient proof of service
connection if the evidence is consistent with the
circumstances, conditions, or hardships of such service
even though there is no official record of such
incurrence or aggravation.”
 See also 38 U.S.C. § 1154(b) re Combat Presumption

7. Section 1154(b):
“In the case of any veteran who engaged in combat with the
enemy … the Secretary shall accept as sufficient proof of
service-connection … satisfactory lay or other evidence … if
consistent with the circumstances, conditions, or hardships
of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation … and, to
that end, shall resolve every reasonable doubt in favor of the
veteran.
Service-connection of such injury or disease may be rebutted
by clear and convincing evidence to the contrary.The reasons
for granting or denying service-connection in each case shall
be recorded in full.”

8. Ways to corroborate combat service:
 Service Records
 Military Decorations
 Hazardous Duty Pay
 Buddy Statements
 Evidence that base was attacked by enemy
VA cannot conclude the veteran did not engage in
combat simply because a veteran did not have a MOS,
award, or decoration indicating combat. It must
consider all evidence.

9. 38 CFR § 3.304 – Direct Service Connection
 § 3.304(f)(1): if PTSD diagnosis during service: “…the
Veteran’s lay testimony alone may establish the
occurrence of the claimed in-service stressor.”
 § 3.304(f)(2): ifVeteran engaged in combat: “…the
Veteran’s lay testimony alone may establish the
occurrence of the claimed in-service stressor.”
 § 3.304(f)(3): if claimed stressor is related toVeteran’s
fear of hostile military or terrorist activity: “…the
Veteran’s lay testimony alone may establish the
occurrence of the claimed in-service stressor.”

10. 38 CFR § 3.307 – Presumptive Service Connection
 § 3.307(b) – Evidentiary basis: “The factual basis may be
established by medical evidence, competent lay
evidence, or both. Medical evidence should set forth the
physical findings and symptomatology elicited by
examination within the applicable period. 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.”

11.  “While the lack of contemporaneous medical records
may be a fact that the Board can consider and weigh
against a veteran’s lay evidence, the lack of such
records does not, in and of itself, render lay evidence
not credible.” Buchanan v. Nicholson, 451 F. 3d. 1331,
1336 (2006)
 Lay testimony is ordinarily competent “to establish
the presence of observable symptom[s].” Barr v.
Nicholson, 21Vet. App. 303, 307 (2007).

12.  CAVC found that there must be some valid basis
to support an inference that a veteran’s testimony
concerning an alleged injury or event would have
been recorded in a medical record for the lack of
any such recording to serve as the basis for finding
the veteran’s testimony incredible. Kahana v.
Shinseki, 24Vet. App. 428, 433– 34 (2011).

13.  “Where the determinative issue involves either medical
etiology or a medical diagnosis, competent medical
evidence is required … where the determinative issue
does not require medical expertise, lay testimony may
suffice by itself. Caluza v. Brown, 7Vet. App. at 504 (1995)
 “A valid medical opinion” is not always required to
establish a medical nexus, so long as the evidence
submitted to establish that element of service
connection is competent. Davidson v. Shinseki, 581 F. 3d
1313, 1316 (2009)

14.  “Lay evidence can be competent and sufficient to establish a
diagnosis of a condition when:
1. A lay person is competent to identify the medical condition
2. The layperson is reporting a contemporaneous medical
diagnosis (i.e., where the veteran states that a doctor told the
veteran that the veteran suffered from a particular diagnosed
condition), or
3. Lay testimony describing symptoms at the time supports a
later diagnosis by a medical professional.”
The Federal Circuit suggested a broken leg as an example of when
a lay person may be competent to make a diagnosis and cancer as
an example of when a lay person is not. Jandreau v. Nicholson, 492
F. 3d 1372, 1376– 77 (2007).

15.  “As a general matter, in order for any testimony
to be probative of any fact, the witness must be
competent to testify as to the facts under
consideration.” Layno v. Brown, 6Vet. App. 465,
469 (1994).
 “A lay witness is competent to attest to factual
matters of which he or she has first-hand
knowledge” Washington v. Nicholson, 19Vet.App.
362, 368 (2005).

16.  A witness is competent to provide such testimony
or sworn statements if, among other things, he or
she “possess[es] personal knowledge of the
disputed fact and the expertise necessary to
testify as to that fact.” Wise v. Shinseki, 26Vet.
App. 517, 528 (2014).

17.  VA cannot reject a veteran’s competent lay
statements regarding in-service events simply
because the service records do not corroborate
the events. SeeJandreau v. Nicholson, 492 F. 3d
1372 (2007).
 VA must point to something in the claims file that
supports a conclusion that the event would have
been documented in the service records had it
actually occurred. Buczynski v. Shinseki, 24Vet.
App. 221, 224 (2011).

18.  CAVC held that the Board may not disregard a
medical opinion solely on the rationale that the
medical opinion was based on a history given by the
veteran. Kowalski v. Nicholson,19Vet.App. 171, 179-80
(2005).
 Fountain v. McDonald, 27Vet.App. 258, 274 (2015)
(finding error in the Board’s failure to adequately
explain its determination that a lay person is not
competent to provide etiology evidence for a
condition like tinnitus).

19.  “Lack of evidence cannot be substantive negative
evidence.” Horn v. Shinseki, 25Vet. App. 231, 239
(2012).
 “The absence of a report of an unreported sexual
assault is too ambiguous to have probative value
because, given that the assault was not reported, no
reasonable person could expect records
documenting the assault to exist, or infer that the
absence of such records tends to prove the assault
did not occur.” AZ v. Shinseki, 731 F.3d 1303, 1318
(2013).

20.  However,VA may validly reject a veteran’s
statement that if the veteran’s statement were
really true, there should be some federal agency
records that corroborate the statement and the
available records do not corroborate the
statement.
 CAVC held that “a non-combat veteran’s lay
statements must be weighed against other
evidence, including the absence of military
records supporting the lay assertions.” Bardwell v.
Shinseki, 24Vet. App. 30, 40 (2010).

21.  CAVC has held that “the reasons or bases
requirement of 38 U.S.C. § 7104(d)(1) . . . requires
the BVA to explicitly ‘determine the credibility of a
veteran’s sworn testimony’ when that testimony
can be the basis for the benefits the veteran
seeks” – and that the Board’s failure to do so
renders its reasons or bases for its decision not to
increase the veteran’s disability rating inadequate
for review. Ashmore v. Derwinski, 1Vet.App. 580,
583-84 (1991).

22. Fact (from his DD-214 and OMPF (extant in file)): Mr.
Veteran served at U-Tapao AFB from January 1968 to
January 1969, and his MOS while stationed there was
Aircraft Electrical Repairman.
Fact (from numerous (4) Maintenance Evaluation
Reports issued during U-Tapao service): Mr.Veteran’s
military duties while serving at U-Tapao AFB included
repairs such as: “voltage regulator installations”,
“installations of cannon plug on water injection valve”,
“repair of copilot’s seat actuator cannon plug”, and
testing “anti-skid system” on KC-135 and B-52 aircraft.

23.  Lay evidence can be extremely useful in proving service
connection claims as long as it meets the definition of
competent evidence.
 The problems with lay evidence arise when claimants
try to use lay evidence to prove something beyond
their own experience or expertise, such as the medical
connection between an in-service injury and a current
disability.
 Competent lay evidence submitted by a claimant must
be considered by theVA and the Board ofVeterans’
Appeals when deciding a claim for benefits.

24.  Statement or testimony should describe in as much detail
as possible the circumstances of the injury or event during
service or describe the symptoms of disease during service,
the presumptive period or since service.
 Look to SMRs, buddy statements, performance reports,
newspaper articles, letters from the veteran and others
who had reason to know about the incident, and
statements of friends and family members to corroborate
Vet’s statements.
 Lay evidence should be relevant, e.g.ThailandVet’s
statement should put him on or near the base perimeter
daily; KoreaVet’s should put him on or near the DMZ, etc.

25. Feel free to contact us:
Katrina J. Eagle
T: 858-549-1561
katrina@eagleveteranslaw.com
Jim Radogna
T: 858-549-1561
jim@eagleveteranslaw.com