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How do you determine Lay Evidence was not considered?
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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?
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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
JKWilliamsSr
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.
JKWilliamsSr
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
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