Is This Categorical Dismissal Of Lay Evidence

[mos1833]

below is what i think is a true injustic

this claim is back at the court again after being denied using this as evidence against my claim, i keep asking my self (can they do this)

from what i know and read about lay evidence, this is just wrong,the medical opinions never considered the lay evidence either.

what do you think ?

The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value.

[Teac]

below is what i think is a true injustic

this claim is back at the court again after being denied using this as evidence against my claim, i keep asking my self (can they do this)

from what i know and read about lay evidence, this is just wrong,the medical opinions never considered the lay evidence either.

what do you think ?

The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value.

The courts have ruled for years that unless someone has medical expertise they are not qualifed to offer medical opinions. However, opinions concerning general information has been excepted. For example, say you fell and hit your head. and a hour later you passed out for a minute or two, you saw no reason to seek medical treatment. You then relate this story to family or friends, or maybe they even saw you fall.

years later you started having problems with your hearing, and friends and family members then opined that the fall caused your hearing problems..... and if there are no medical records to conclude that you hit your head, then even the opinon that someone saw you fall would be of no value for compensation purposes because you would still have to prove the fall occured when you were on active duty...

Is this a fair denial... yes...

Now if in fact , you had gotten medical treatment when you first hit your head.....and years later had hearing problems a doctor based on the medical records could opine if the head injury years earlier were the cause of your hearing problems..... so you see lay statements while informative have no probative value unless there is collaborative evidence.

Edited March 25, 2012 by Teac

[mos1833]

teac thanks for the reply

first you are right ,that the court has held for years that a lay wintness must be medical quailifed to offer an opinion.

from what ive the court changed that when it decided ( davidson )

In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), the U.

S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "

the Board cannot determine that lay evidence lacks credibility merely

because it is unaccompanied by contemporaneous medical evidence." It

necessarily follows that a medical examination that fails to take into

account relevant lay assertions is of little probative value. See Dalton

v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding that a medical

examination was inadequate where the examiner "impermissibly ignored the

appellant's lay assertions that he had sustained a back injury during

service")

[Teac]

teac thanks for the reply

first you are right ,that the court has held for years that a lay wintness must be medical quailifed to offer an opinion.

from what ive the court changed that when it decided ( davidson )

In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), the U.

S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "

the Board cannot determine that lay evidence lacks credibility merely

because it is unaccompanied by contemporaneous medical evidence." It

necessarily follows that a medical examination that fails to take into

account relevant lay assertions is of little probative value. See Dalton

v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding that a medical

examination was inadequate where the examiner "impermissibly ignored the

appellant's lay assertions that he had sustained a back injury during

service")

I would have to read the whole case to understand the reasoning behind the decision. No disrespect to you But I can't take what you posted at face value... becaue if what you say is true, veterans including myself would not be jumping through hoops getting medical opinions.. we would just find a buddy and have them write a statement,.,..

[Chuck75]

This is always a bone to fight over.

The VA has carried things even farther in some denials, calling a medically qualified "expert"'s opinions "speculation".

In any event, a lay person's description of an event or condition that is tied to military service needs to be limited to what any person would observe/perceive.

Non medical language should be used when at all possible and understandable.

[Philip Rogers]

I agree w/the others. A lay person can state in lay terms what they saw, heard, read, witnessed, etc., and the VA must accept it or explain why not.

pr

Edited March 26, 2012 by Philip Rogers

[mos1833]

thanks for the help all

what i posted below is in the boards reasons and bases.

the board said the mer lay testamony has no value.

then i posted what was decided in buchanan v nicholson.

i gave testamony along with four others who new me before and after service.

the board sain with out medtcal knowledge or otherwise qualified ,

none of us were credibal witnesses.

to me that is categorical dismissing lay assertions. (davidson )