The Role Of Lay Statements In A Disability Claim
In many situations, lay statements in a disability claim are very effective. Brain injuries are a good example. Since the brain often conceals its own injuries, many of these Veterans do not realize how badly they are hurt. So, a combination of their own testimony and a clinical medical exam only tells part of the story. But how much weight should the VA give lay evidence? That was the main issue in 2020’s Miller v. Wilkie.
Some attorneys believe that VA disability claims are essentially medical claims. But a good VA disability attorney thinks outside the box. That means including other kinds of evidence which could tip the balance in favor of the Veteran. Since the burden of proof is quite low in these cases, a little evidence could make a big difference.
This Veteran was a Gulf War veteran. After he returned home, he began experiencing digestive problems and joint pain. Like many Veterans, he tried to treat his symptoms with various over-the-counter medications. In 2011, he finally filed a disability claim because the pain was just too severe.
In 2017, a Regional Officer used the Gulf War General Medical Examination Disability Benefits Questionnaire to evaluate the claim. However, the medical exam did not account for the Veteran’s statements about his symptoms. Specifically, the Veteran said that his GI and foot problems made it almost impossible for him to find work. Additionally, the Veteran’s use of over-the-counter medications might have masked his disability symptoms.
Nevertheless, based solely on the medical examination results, the RO denied the claim. After several years of legal wrangling, the matter finally made it to the Court of Appeals for Veterans Claims.
The CAVC concluded that two prior cases, 2007’s Barr v. Nicholson and 2016’s McKinney v. McDonald, were controlling. In the court’s words, the essence of these two cases is that “an examiner must address the Veteran’s relevant statements and, if the examiner fails to address the veteran’s reports of his or her medical history and the Board is silent about the credibility of the veteran’s lay statements, the Court will order a new examination absent an indication that the Board did not reach credibility.”
In other words, examiners must give lay evidence consideration in their analysis. That is largely because “disability” is not just a medical term. This word has wide-ranging applications, particularly economic implications.
Additionally, the CAVC said the Regional Officer is to presume that lay statements are credible unless the Board of Veterans Appeals or another higher judicial body has specifically made a contrary finding.
Therefore, since the 2017 medical examination failed to consider lay evidence alongside medical evidence, the RO should have ordered another exam which takes all evidence, and not just some of it, into account.
Reach Out to Effective Attorneys
ROs have a responsibility to fully consider all evidence in a claim, and not just some of it. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.