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.

[tanker2]

so re the lay statement....both 38cfr 3.2b&3.307b is telling us how the v.a wil treat lay evidence.3.2b says it must be written and certified under oath or affirmation.3.307b says factual basis may be established by medical evidence,competent lay evidence or both. so on the lay side were told its touchy so keep it simple and direct no opinions no coming to a conclusion just facts stated. i had to ask a good buddy but a short tempered one to re do a buddy letter as he would state the facts then opine. after a fews phone calls to him he sent another letter and i believe his letter carried alot of weight on that decision i won.

[SpcDearman]

so re the lay statement....both 38cfr 3.2b&3.307b is telling us how the v.a wil treat lay evidence.3.2b says it must be written and certified under oath or affirmation.3.307b says factual basis may be established by medical evidence,competent lay evidence or both. so on the lay side were told its touchy so keep it simple and direct no opinions no coming to a conclusion just facts stated. i had to ask a good buddy but a short tempered one to re do a buddy letter as he would state the facts then opine. after a fews phone calls to him he sent another letter and i believe his letter carried alot of weight on that decision i won.

I am desperately trying to find my lone buddy. i found him once on Facebook but no longer can I find him. too bad i couldn't use my wife. I met her in 1995 three months after i separated. I might just have to get an IMO.

[mos1833]

heres what the judge said.( this case hinges on wheather the vets testimony is creditable ).

i had a written statement from my wife when we were dating,before my injury and after

i had a written statment from my mother-in -law from before and after my injury.

i had a written statment from a buddy i grew up with and we joined the service under the buddy plan

his testimony was of before and after service.

i also had a written statement from my sister of before and after service.

they all said the same as me. i just think this is categorical dismissal of lay evidence.

thanks

[broncovet]

Mos...

You could be right. However, if the Va caught you in ONE inaccuracy, they will dismiss all your evidence. For example, if the Va asks you "when did xxxx happen?".

You dont remember, so you say "August 1998". Later, you are working on your claim and find a document showing it happened June 29, 1998. Oh boy...They will discount all your evidence assuming you are not a reliable witness. They can likewise discount "buddy" letters, too.

For example if there is any inconsistency between the "buddy letter" and what you report, they can throw it out. Or, even worse, if the "buddy letters" are all consistent with each other, they can also throw it out.

Example: In the JFK murder, they interviewed hundreds of people. These people were teachers, doctors, and from all walks of life. These people could not even agree on how many shots fired!! You see, some of these people were probably in their car, listening to the radio. Others were on the grass in traffic. So, from their perspective, they all had a legitimate different version of the Kennedy shooting.

Contrast that to a crook. He tells 4 of his friends..ok, when they ask you tell them a guy came in in a green jacket, fired 3 shots, and then sped away in a blue Chevy Nova, license plate 4h3xxx.

When the stories are exactly the same by different people, they know they are "rehearsed", and not credible.

In the example of "buddy letters" dont try to type up 4 letters from 4 buddies and get the buddies to sign them. It wont work. These people need to write it "in their own words", not your words. These 4 people wont be telling the same story. Not even close. They will be telling the story, like JFK's witnesses, in their own words, and from their own perspective.

Please, please, please, remember, I am not accusing you of anything illegal or unethical, nor am I recommending any Vet misrepresent his/her claim.

Unless you went to a hearing, you probably dont know for sure if the VA considered all or even one of your buddy letters. These could have all been lost or shredded. Or, you could have been "top sheeted" where the VA considers only the top sheet and does not read all your evidence. Berta knows about this very well.

[mos1833]

thanks broncovet, but i understand what your saying. its just that they say that the seperation examination makes all of my lay evidence unbelivable, when there is no such document any where in my file,ived ask them to point it out in the record,but they never do,or even mention it any further. if they could proudce that document , i would drop my claim,but they cant.

thanks again

[Hoppy]

MOS 1833

All of the info in quotes below was copied and pasted from previous posts that I made in regards to your claim. The common thread to what I have said is that you need to get a medical opinion that strengthens the evidence in favor of the claim and shoot holes in the evidence against the claim.

If you are in a position at this time to submit evidence on the old appealed claim then get an IMO or find an attorney who works with some doctors. This is what deanbrt did. Unfortunately, the law firm did not do the best job vetting the doctors opinion and one vague phrase used by the doctor made the doctors report useless. However, this would be the protocol. If you are not in a position to file evidence on the old denied claim then get the new evidence and re-open the claim. I am of the opinion the medical evidence in your claim was not fully and properly developed. If your attorney does not work with any doctors find a law firm that does. The exact terminology of a medical opinion needs to be in a format the VA recognizes. All that was done on deanbrts case was to submit a research study that the law firm’s doctor vaguely alluded to and argue that the medical opinion used as evidence against the claim were speculative and he won his claim.

“Once the accident is established by the witnesses then you need a strong IMO from a doctor who has reviewed the witness statements and links the prior injury to the current condition. Hopefully the claim is not clouded by other non service related back issues.”

“I came back to this thread to clarify that I am of the opinion that it is better to bolster the medical evidence than to rely entirely on an argument that the VA did not properly apply the law. You can bolster medical evidence and argue that the previous decision did not comply with the law at the same time with the expectation that one or the other will win the claim.”

“In a situation like this I have the IMO doctor read all the medical reports including the reports the VA is using as evidence against the claim and shoot holes in those reports”

“One solid study will shoot down the opinion of the examiners calling a relationship speculative. The problem is that the VA treating doctor does not know that they need to back up their opinion by with research or at least provide a curriculum vitae showing they can base their opinion on clinical experience. The best way to deal with this situation is to get a lawyer who understands the necessity of referencing research or works with a high power doctor who has a long history of specializing in treating and longitudinal following up of patients with a prior history of back injuries.”