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How do you determine Lay Evidence was not considered?

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JKWilliamsSr

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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?

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  • Content Curator/HadIt.com Elder

@Dustoff 11 You should clean that up and put it in a blog entry

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Well you can delete my post as it is okay with me as we all know from our years of dealing with the VA how their game is played.  I don't do blogs as I don't how to do blogs but it sounds like a good idea.  Thank you for your suggestion mate.

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44 minutes ago, Dustoff 11 said:

Well you can delete my post as it is okay with me as we all know from our years of dealing with the VA how their game is played.  I don't do blogs as I don't how to do blogs but it sounds like a good idea.  Thank you for your suggestion mate.

That was actually a positive recommendation. Tbird added a blog feature here on Hadit.com and it's awesome. You just click the Blogs option at the top left. You can create a blog and then add articles to it. I like them because I don't have to repeat myself over and over. They are also a centralized location to find content, which is a bit easier than having to dig or search to find a very relevant post buried deep in the forums. I meant that you could take what you posted, clean it up a little to improve readability and take it out of context of the topic, and add it to your own blog. Then when you see a post later where it is relevant, you could copy/paste the link to the blog entry. It's a very useful feature.

image.png.177f3cd5aac04a4701f4651007c55015.png

 

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17 hours ago, Dustoff 11 said:

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.

This is excellent advise and I agree with you.   What I have learned over the years is that most raters cut and paste old denials and add just a little different information to make it seem like the did their due diligence when they did nothing remotely close.   In a most of the denials in my decision letter they made some very glaring errors that most people will not catch because they probably do not verify the info in the letter.

In the majority of the claims in my decision letter the rater cited they reviewed and considered 38 CFR 3.304 and 38 CFR 3.306.  Those are glaring errors because they do not apply to the disabilities because they are secondary disabilities.   38 CFR 3.304 is for Direct Service Connection Wartime and Peacetime.  38 CFR 3.306 is for Aggravation of Pre-Service Disabilities.   As I mentioned most of my new claims are secondary claims and direct service connection does not apply.   I did not have a single pre-service disability and my entrance physical confirms that yet the rater applied laws that had nothing to do with my claim.

What should have been applied was 38 CFR 3.310 which is for Diabilities that are proximately due to, or aggravated by, service connected disease or injury.

I am going to challenge them to prove the properly applied every law they were require to.  Now my understanding is the current decision letters should have all the information that would be found in the Statement of Case you received when you filed a NOD under the old system.  I have been trying to find some clarification on this but have been unsuccessful.

Edited by JKWilliamsSr
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18 hours ago, Dustoff 11 said:

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.

Dustoff 11 is right on with this.

I Do know the Raters do not like to read and just give a quick glance at some of a Veterans evidence   however in some cases  the senior rated is suppose to correct the 1st rater  but seldom does that happen.

I agree just get your evidence all together and your Dr's statements/lay statements  ect,,ect,,,  and though it at the wall submit and see what happens.

if we have to Appeal  so be it

or 90% of the time we have to Appeal.

Now this is old school I am not that familiar with this new AMA system of today   with the different 4 lanes to choose to work our claims  or what lane you can submit new and relevant evidence and what lanes not to ect,,ect,,.and the correct forms to file...I just now figure that out back in Feb  19 of 2019  actually when it took affect.

Edited by Buck52
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