How do you determine Lay Evidence was not considered?

[JKWilliamsSr]

I am working on an HLR but felt this particular question deserved it's own thread in case someone wanted to do a search for Lay Evidence.  I could not find anything myself. 

The question is how do we determine lay evidence was not considered?  It was pointed out that the VA operates under the presumption of regularity.  That basically says the it is presumed that government officials have properly discharged their official duties.  So for the sake of argument for disability claims I interpret that to be that regardless of what the decision letter says or does not say it will always be presumed the VA reviewed all the evidence to adjudicate a claim.  There appears to be some limitations to the presumption of regularity rule.  I am researching that.  Not sure what I will find out. 

Given the obvious assumption that will be in favor of the VA how are we the veteran to determine they did not consider certain evidence?  Can we just make that assumption based on no entries in the decision letter.  My decision letter does not mention a single piece of lay evidence in any of the decisions.  We all know that every piece of evidence is supposed to be weight but how or when do we make the assertation that our lay evidence was ignored?

[Vync]

That is always a good question.

32 minutes ago, JKWilliamsSr said:

It was pointed out that the VA operates under the presumption of regularity.  That basically says the it is presumed that government officials have properly discharged their official duties.  So for the sake of argument for disability claims I interpret that to be that regardless of what the decision letter says or does not say it will always be presumed the VA reviewed all the evidence to adjudicate a claim. 

Yes, that is my assumption also. It's also a great reason to carefully go over the rating decision letter and compare that to evidence to ensure they actually did do their job correctly.

I would start by checking the EVIDENCE list and REASONS AND BASES in the rating decision letter. Odds are, the VA probably listed the lay evidence either in detail or just by the form number (i.e. 21-4138). They may or may not refer to the lay evidence in the R&B section, depending on the situation (i.e. if other evidence is sufficient).

Next, the context and content of the lay evidence can help you determine if it was used.  

For example, some ratings may vary based on the number of episodes or a certain number of treatments within a specified time period. The migraine ratings are a good example:

Quote

8100   Migraine:
With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability	50
With characteristic prostrating attacks occurring on an average once a month over last several months	30
With characteristic prostrating attacks averaging one in 2 months over last several months	10
With less frequent attacks	0

Let's assume you keep a migraine diary and note having two to three prostrating attacks over the past several months. If the diary was submitted as lay evidence and the VA said you one had one prostrating attack over the last several months, then that's clear cut proof that the VA did not properly evaluate your lay evidence.

Lay evidence can be considered subjective, but should be as objective as possible. For example, if someone who is not a medical professional writes a buddy letter stating, "I think that stuff made him sick", then that would be subjective and discounted. However, if someone said, "Moments after the injection was administered, he began to vomit", then that would be objective and considered. The non-professional stated what they objectively observed without trying to offer an unqualified opinion.

It can really boil down to the type of claim, kind of lay evidence, and what is found within. I hope these exampled help.

 

 

[JKWilliamsSr]

3 hours ago, Vync said:

That is always a good question.

Yes, that is my assumption also. It's also a great reason to carefully go over the rating decision letter and compare that to evidence to ensure they actually did do their job correctly.

I would start by checking the EVIDENCE list and REASONS AND BASES in the rating decision letter. Odds are, the VA probably listed the lay evidence either in detail or just by the form number (i.e. 21-4138). They may or may not refer to the lay evidence in the R&B section, depending on the situation (i.e. if other evidence is sufficient).

Next, the context and content of the lay evidence can help you determine if it was used.  

For example, some ratings may vary based on the number of episodes or a certain number of treatments within a specified time period. The migraine ratings are a good example:

Let's assume you keep a migraine diary and note having two to three prostrating attacks over the past several months. If the diary was submitted as lay evidence and the VA said you one had one prostrating attack over the last several months, then that's clear cut proof that the VA did not properly evaluate your lay evidence.

Lay evidence can be considered subjective, but should be as objective as possible. For example, if someone who is not a medical professional writes a buddy letter stating, "I think that stuff made him sick", then that would be subjective and discounted. However, if someone said, "Moments after the injection was administered, he began to vomit", then that would be objective and considered. The non-professional stated what they objectively observed without trying to offer an unqualified opinion.

It can really boil down to the type of claim, kind of lay evidence, and what is found within. I hope these exampled help.

 

 

I understand completely.  I think for the most part is all about perspective.  Lay Evidence is required to be considered and weighed.  If the evidence is listed on the decision letter the presumption of regularity comes into play where is it accepted that the "government officials have properly discharged their official duties" .  This is a really gray area that the VA uses to it's advantage. I have seen a large number of BVA decisions handed down concerning lay evidence. 

In my instance there isn't a single reference to my lay evidence in any of the decisions.  However, they listed that I submitted 12 VA Form 21-4138 and the presumption of regularity is going to come into play.  This is where I think many veterans run into issues.  Now I think the key here is to directly challenge the VA to prove they considered the lay evidence.  The Key is citing the correct laws to support this.   38 U.S.C 1154(a) States: The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence.  

38 CFR 3.159.(a)(2) covers Competent Lay Evidence and Jandreau v. Nicholson is the case law that is cited in the M21-1 covering lay evidence.  I also found a couple other cases that mention lay statements  the big one being Caluza v. Brown which states: the Court, in discussing the credibility of lay evidence, held that the truthfulness of evidence is presumed and that credible testimony is defined as that which is plausible or capable of being believed

Kahana v. Shinseki is another precedent setting case that mentioned lay evidence.  The court added a note to the decision that goes as follows: “lay testimony is competent … to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim for service connection."

Then there is the matter of cases that the rejection of lay evidence must be explained.   Without going into a lot of detail I found some precedent setting case law that that mention the rejection must be explained.  They are Rowell v. Principi, Colayong v. West,  Jones v. Principi, Locklear v. Nicholson, and Quiamco v. Brown. 

Now I have heard it said that you should not send the VA too much information and overwhelm them with citations of laws because doing so tends to upset raters.  Now I could understand that if it was the initial claim but in this instance I have been screwed again and I am not concerned with the feelings of the rater. I want on record everything I think they did wrong. 

In other words this HLR preparation is probably in reality preparation for the BVA. 

Edit: I found a BVA case that pretty much covers everything I said in this post.  Now I know BVA decisions are not precedent setting but this case seems to be spot on.

https://www.va.gov/vetapp19/files8/19161026.txt

Edited November 20, 2019 by JKWilliamsSr

[Vync]

I completely understand how you feel and had to appeal a very similar situation some years back.

Those are very good laws/rulings to quote. Don't forget this one too:

Quote

§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

 

Given 4.6 and the laws/rulings you quoted, the amount of referenced laws/rulings should not matter because they are supposed to review everything. In my opinion, it's not about over-quoting the laws/rulings. But concisely quoting those laws/rulings which apply to your situation.

Keep in mind that for HLR you cannot submit new evidence, but that doesn't mean you can't make it easier for the VA to do their job.

For example, in my active CUE (like HLR with many more restrictions), I included a leading page which briefly summarized the situation and errors. I then broke my arguments involving each law/ruling out on to separate pages. On those, I quoted the relevant law/ruling. Below it, I briefly pointed out each error in light of my evidence (referenced as exhibits) and what was required under the law.  On the last page, I included a very brief summary to tie it all together. After that I included each piece of evidence as a separate exhibit.

In the end, I gave them exactly what they need by showing them every error. No new information was added. Everything was objective and reasonable. I used as few words as possible and kept it pretty much at an 8th grade reading level. Everything they needed to know was very accessible without overloading them with unnecessary stereo instructions.

 

[vetquest]

In my last BVA remand the judge noted that lay evidence was not considered and showed that I was unemployable on the date that I had requested TDIU. 

The judge also noted that "It should be noted that the veteran is competent to attest to factual matters of which he had first hand knowledge, including observable symptomatology.  If there is a medical basis support or doubt the history of the veteran provided by the veteran, the examiner should provide a fully reasoned explanation".  I got a kick out of this statement because a doctor wrote a very scathing C&P on me and suggested I was malingering.  

[Vync]

1 minute ago, vetquest said:

In my last BVA remand the judge noted that lay evidence was not considered and showed that I was unemployable on the date that I had requested TDIU. 

The judge also noted that "It should be noted that the veteran is competent to attest to factual matters of which he had first hand knowledge, including observable symptomatology.  If there is a medical basis support or doubt the history of the veteran provided by the veteran, the examiner should provide a fully reasoned explanation".  I got a kick out of this statement because a doctor wrote a very scathing C&P on me and suggested I was malingering.  

I really hope idiots like that undergo remedial training so they don't keep repeating the same mistakes with other veterans. 

[JKWilliamsSr]

7 minutes ago, vetquest said:

In my last BVA remand the judge noted that lay evidence was not considered and showed that I was unemployable on the date that I had requested TDIU. 

The judge also noted that "It should be noted that the veteran is competent to attest to factual matters of which he had first hand knowledge, including observable symptomatology.  If there is a medical basis support or doubt the history of the veteran provided by the veteran, the examiner should provide a fully reasoned explanation".  I got a kick out of this statement because a doctor wrote a very scathing C&P on me and suggested I was malingering.  

I just did a search of BVA decisions for "Lay Evidence"  and almost all the overturned decisions had that very same statement in it.   For some reason many  raters tend to discount veteran statements.