Other Case Evidence

[sbrewer]

If you were trying to claim heart disease to depression, could you use cases such as the link below for your own claim?

http://www.va.gov/vetapp96/files1/9609243.txt

Also, if you can, would you take printed items such as this to a C&P exam or wait to see if it is denied and go from there?

Just wondering...

Thanks,

sbrewer

[foreveryoung]

I have found that any medical evidence you have to support/explain your claim is always helpful. I have been to C&P's where the Doctor has no medical records about my claim.

Edited June 24, 2006 by foreveryoung

[Pete53]

Actually, it is difficult to predict how the VA will rule on a claim.

[Wings]

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Current Law:

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a)(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(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.

(Authority: 38 U.S.C. 5103)

Proposed Rule:

[Federal Register: March 31, 2006 (Volume 71, Number 62)]

[Proposed Rules]

[Page 16463-16475]

Proposed Sec. 5.1 provides a definition of the term "competent

evidence.'' Since the process of adjudicating claims is not

adversarial, VA is not concerned with the technical "admissibility''

of evidence and does not exclude any evidence from the record (as we

propose to remind readers in a note associated with the proposed

definition). However, VA must evaluate the probative value of evidence.

One of the qualities upon which VA evaluates whether evidence is

probative is whether or not it is "competent.'' Basically, this means

that VA evaluates evidence on whether its source was someone who had a

sound basis for stating the opinion or reporting the facts contained in

the evidence.

The new proposed definition would specify that competent evidence

is evidence of one of two types, "competent expert evidence'' or

"competent lay evidence.'' In that respect, this new definition is

similar to Sec. 3.159(a)(1) and (2), which distinguishes between

"competent medical evidence'' and "competent lay evidence.'' However,

instead of defining "competent medical evidence,'' paragraph (1) of

the proposed definition defines "competent expert evidence,'' which

would be evidence that must be provided by someone with specialized

education, training, or experience. "Expert evidence'' is sufficiently

broad to encompass requiring a valid foundation for any evidence, not

just medical evidence, which is based on special technical expertise.

Examples might include such things as opinions from a handwriting

analysis expert or an accident reconstruction expert.

Paragraph (2) of the proposed definition defines "competent lay

evidence.'' It is substantively similar to the definition of the same

term in current Sec. 3.159(a)(2) in most respects. However, we propose

to add that to be competent the lay evidence must be provided by a

person who has personal knowledge of the facts or circumstances

addressed by the evidence. Mere hearsay would not be competent

evidence. "It bears repeating that [lay] testimony is competent only

so long as it remains centered upon matters within the knowledge and

personal observations of the witness. Should the testimony stray from

this basic principle and begin to address, for example, medical

causation, that portion of the testimony addressing the issue of

medical causation is not competent.'' Layno v. Brown, 6 Vet.App. 465,

470 (1994). We also propose to state that a lay person is a person

without relevant specialized education, training, or experience. A

person could be an expert in a field unrelated to the subject matter of

the evidence at hand and still be considered to be a "lay person'' in

the context of evaluating the competency of that evidence. For example,

with respect to evaluating a medical opinion provided by a witness

without medical training, that person would be considered to be a lay

person even though he or she might have the credentials to provide

expert evidence concerning structural engineering.