Recent Federal Circuit Decision- Not Cavc

[Berta]

Ray Davis' long time veterans advocate- has assessed this federal curcuit decision well---

his point is about claims denied due to lack of "competent medical evidence"----

In this Fed Cir. op they state the VA had rejected the veteran's buddy statements-

these were crucial to his claim because NARA said his SMRS had all been lost in the St Louis fire.

The crux of this matter is that the VA found no medical proof of the shoulder injury in service.

The Fed Cir court however -in this opinion references Buchanan-

and states that established VA case law is found in Jandreau CAVC 04-1254 at # 3- re points #1,2,3, and 4-

(bottom of page 5 if you printed this out)

What this case means to me is that the BVA must consider lay evidence and state why it is not competent-

it goes beyond the VA stating lay evidence, because the claimant is not a medical professional,

is not competent-

now the VA if the claimant cites this case has to say WHY it is not competent-

This decision has been remanded to the CAVC so that the the BVA can evaulate the lay evidence

as a 'fact' issue and not as a legal issue for the court.

The Fed Circuit is not saying whether this lay evidence the vet had is "comtpetent and sufficient" -it is putting it back into VA's hands to consider it as "relevant" and then the VA has to come up with some sort of rationale to reject the buddy statement.

The Fed Circuit reminds VA in this remand back to CAVC that "The Secretary shall consider all...lay and medical evidence of record in a case....with respect to benefits."

That is reiterated within VA case all the time.

Lay evidence is relevant when it conforms to the key points in this case.

The buddy statement (and these statements are as liable for perjury as anything a vet says in a claim) clearly describes and establishes this vet's injury in service.

I had to force VA to consider my medical "lay" statements.in my last claims.

My lay statements were concurred with by the VA- that took years.

This recent 2003 claim- the VA tells me I am not competent to make medical statements-

(but they already accepted them from me before-and I had knocked down 3 VA doctors -or more)in my last claims.

The point is the fact that VA has to consider bonafide lay statements as a fact they must rebutt-

not with a fast denial and a statement that the vet is not medically competent but with some medical facts as to why the lay statements are irrevelant.

Example: I sent VA a medical certificate from the VA ER that showed my husband had a heart attack in 1988.

He was prescribed Sudafed and sent home from work at VA for 3 days.

They told him he had a sinus infection.

I proved to the VA-everything on the medical certificate to include notations and

readings etc-proved he had a heart attack which they failed to diagnose and treat.

The subsequent labs reports also proved this.

They agreed. This is lay evidence. It is relevant evidence.

It is prime facie evidence.

They fought me for 3 years on this claim but my point is

I sent in addition to the medical certificate-considerable probative evidence from VA doctors- (the Med recs)

explained to them step by step how the malpractice continued- and the VA finally

agreed.

Section 1151 claims and FTCA- I recommend not doing this- get a IMO-

But for a direct SC claim- a veteran's probative lay evidence must be considered by the VA and if they rebutt it-they have to give a medical rational-if the lay evidence clearly makes medical sense.

very interesting case----

Edited July 8, 2007 by Berta