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?

[Dustoff1970]

Thanks guys for agreeing with me and this new AMA/RAMP system has already screwed me up on appealing a secondary and an increase claim and I may or may not have to do a reopen claim which is the intended result by VA of introducing this new phony faster system.  It is faster sometimes on DENIALS.  So far my grants and denials have taken a perfect year under this so called new system and this is about same as many years ago for me under old legacy system.

Within past year I have received a denial and soc on an increase claim and both use almost word for word the same wording except the soc added a short paragraph of further justification for denying my increase claim. Again this same as old system but they add more wording and more detailed listing of evidence they supposedly considered.

But this is as I expected.  Most of time when I and others win our claims on appeal it is based on the same evidence and arguments we used in our original claims to the VARO.  That tells me a lot about the whole ******* VBA claims system right there.   DELAY AND DENY UNTIL YOU DIE.  I am 73 year of age.

[Vync]

@Dustoff 11 My wife asked me why I kept filing claims (new and CUE) even though I was 100%. I told her it is about the principle. If they get away with it, they will do it to another veteran. I consider it a moral imperative.

[JKWilliamsSr]

14 hours ago, Dustoff 11 said:

Thanks guys for agreeing with me and this new AMA/RAMP system has already screwed me up on appealing a secondary and an increase claim and I may or may not have to do a reopen claim which is the intended result by VA of introducing this new phony faster system.  It is faster sometimes on DENIALS.  So far my grants and denials have taken a perfect year under this so called new system and this is about same as many years ago for me under old legacy system.

Within past year I have received a denial and soc on an increase claim and both use almost word for word the same wording except the soc added a short paragraph of further justification for denying my increase claim. Again this same as old system but they add more wording and more detailed listing of evidence they supposedly considered.

But this is as I expected.  Most of time when I and others win our claims on appeal it is based on the same evidence and arguments we used in our original claims to the VARO.  That tells me a lot about the whole ******* VBA claims system right there.   DELAY AND DENY UNTIL YOU DIE.  I am 73 year of age.

The VA by law is supposed to list all of the reasons for the denial.  Now they do not have to list each piece of evidence and provide an explanation for each but they still have to state a reason. For example, if they found lay evidence to not be credible have to say it was not credible.   If they gave more weight to one piece of evidence over another they have to state so.  They probably can just put it in generic terms with the exception of medical evidence.  That can only be rejected with medical evidence. 

The decision letter is required to be able to stand up to CAVC scrutiny.   There were two decisions handed down in 2008 that dealt directly with the information that is to be provided in the reasons and bases for decisions. Those were Vasquez-Flores v. Peake and D’Aries v. Peake.   I think by citing those decisions in your HLR or Supplemental Appeals you are forcing the raters to provide the required information.   This could be huge in determining the outcome of your ratings because when you have plenty of good evidence you are letting the VA know you understand enough of the law to force their hand.