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?

[JKWilliamsSr]

21 minutes ago, dwbell99 said:

Presume that if the lay evidence was not addressed in the Rating Decision and it was ignored by the VA and assert that the VA did not consider it. Make the VA defend against this assertion. 

The logic for this is that a C&P examiner is credible unless challenged.

 

Agreed and I am also going to him them with improper reasons and bases explanation in the decision letter.  

In D’Aries v. Peak the court held that The written statement of reasons and bases of a decision must be adequate to enable a claimant to understand the precise basis for the decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims

[dwbell99]

12 minutes ago, JKWilliamsSr said:

Agreed and I am also going to him them with improper reasons and bases explanation in the decision letter.  

In D’Aries v. Peak the court held that The written statement of reasons and bases of a decision must be adequate to enable a claimant to understand the precise basis for the decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims

When adjudicating a claim for veterans benefits, "[t]he Secretary shall consider all information and lay and medical evidence of record."  38 U.S.C. § 5107(b).

[dwbell99]

also found this:

38 U.S. Code § 5107(b) Benefit of the Doubt states "The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary".

[Vync]

@JKWilliamsSr It happens more often than you might believe. My first denial in 1995 was extremely vague. The VA said I was never treated for any of the conditions I claimed. After doing some digging, they claimed to have used my service treatment records, but lied and instead made the decision based on a nearly empty VA claims file. I had to give them copies of the STRs. After that, they reviewed them and still got it wrong.

[JKWilliamsSr]

7 hours ago, Vync said:

@JKWilliamsSr It happens more often than you might believe. My first denial in 1995 was extremely vague. The VA said I was never treated for any of the conditions I claimed. After doing some digging, they claimed to have used my service treatment records, but lied and instead made the decision based on a nearly empty VA claims file. I had to give them copies of the STRs. After that, they reviewed them and still got it wrong.

The exact same thing happened to me.  The sad thing about all of this is the evidence I used for direct service connection that was previously denied I got from my C-File.  It is a clear indicator that raters only glance at evidence. 

[Dustoff1970]

For over 30 years of filing my own mostly successfully claims and appeals I have this to say.  Among your many arguments and evidence in your appeal including lay statements of a VARO and/or BVA denial always make the argument for the official appeal record that the VARO/BVA disregarded/ignored your lay evidence and other evidence you (hopefully) submitted with your claim and again with your appeal. 

Even though VARO may or may not list your lay and other evidence in the listing of evidence section of the denial decision they still can and do choose to ignore or discount your favorable evidence when they want to even tho they may briefly mention your evidence (it is mostly a BS statement to cover their arse on their part).

Upon appeal of the denial the courts and BVA will often note that the VARO rater or BVA law judge did in fact disregard or discounted or ignored the submitted evidence in spite of them quoting the presumption of regularity BS.  Never assume the VARO has the important medical and other evidence in your file before them but send in your own copies of this important evidence to them with your claim (if you have the copies).  Never send the ********** any originals of anything.  Always use certified return mail as proof of mailing.  It works as I know.

I have had the VARO return duplicates of copies I sent them on my claims and asking me not to resend them again.  They place a big red D on each copy but I then know almost certain they have the evidence for sure and I keep a copy of their pleading request as proof they received the docs.

When I file a claim and/or appeal I ALWAYS throw everything upon the wall to see what sticks and it has worked for me.  I don't give a rats *** if this makes some overpaid guvment puke unhappy as I assume they are going to deny my claim anyway and I don't care about their hurt feelings. 

Better too much info than not enough info.   Yes the courts and BVA has stated repeatedly that the raters do not have to discuss each piece of evidence but I still make the above arguments in first paragraphs.

The above info is not legal advice but only the personal opinion and experience of myself as I am not an attorney, paralegal, VSO or veterans advocate.

Edited November 26, 2019 by Dustoff 11
additional paragraph