Veterans Affairs Compensation and Service Connection Guidelines

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Fall 2020 Professional Training Conference
 
 
 
 
 
 
 
Presenters:
   Katrina J. Eagle, Esq.
Jim Radogna, VA Accredited Agent
 
 
38 U.S.C. § 5103A – Duty to assist claimants
 
(d)(2): Medical Exams for Compensation Claims:
When deciding whether an examination is
necessary, the Secretary shall consider the
evidence of record, “
taking into consideration
all information and 
lay
 or medical evidence
(including statements of the claimant)
.”
 
 
38 C.F.R. § 3.159 – VA Assistance in Developing Claims
 
§ 3.159(a)(2): “
Competent lay evidence
 means any
evidence not requiring that the proponent have
specialized education, training, or experience. Lay
evidence is competent if it is provided by a person who
has knowledge of facts or circumstances and conveys
matters that can be observed and described by a lay
person.”
 
38 CFR § 3.303 – Principles Relating to Service Connection
 
§ 3.303(a): “Service connection connotes many factors but
basically it means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service . . . Each
disabling condition shown by a Veteran’s service records,
or for which he seeks a service connection 
must
 be
considered on the basis of the places, types and
circumstances of his service as shown by . . .
 
38 CFR § 3.303 – Principles Relating to Service Connection
 
. . .
1.
Service records,
2.
the official history of each organization in which he
served,
3.
his medical records
4.
and all pertinent medical and 
lay evidence
.
 
Determinations as to service connection 
will be based on
review
 of the 
entire evidence of record
. . .”
 
38 CFR § 3.304 – Direct Service Connection
 
§ 3.304(d) Combat: “
Satisfactory lay or other evidence
that an injury or disease was incurred or aggravated in
combat 
will be accepted
 as sufficient proof of service
connection if the evidence is consistent with the
circumstances, conditions, or hardships of such service
even though there is no official record of such
incurrence or aggravation.”
 
See also
 38 U.S.C. § 1154(b) re Combat Presumption
 
38 CFR § 3.304 – Direct Service Connection
 
§ 3.304(f)(1): if PTSD diagnosis during service: “…the
Veteran’s 
lay testimony
 alone may establish the
occurrence of the claimed in-service stressor.”
§ 3.304(f)(2): if Veteran engaged in combat: “…the
Veteran’s 
lay testimony
 alone may establish the
occurrence of the claimed in-service stressor.”
§ 3.304(f)(3): if claimed stressor is related to Veteran’s
fear of hostile military or terrorist activity: “…the
Veteran’s 
lay testimony
 alone may establish the
occurrence of the claimed in-service stressor.”
 
 
38 CFR § 3.307 – Presumptive Service Connection
 
§ 3.307(b) – Evidentiary basis: “The factual basis may be
established by medical evidence, 
competent lay
evidence, or both
. Medical evidence should set forth the
physical findings and symptomatology elicited by
examination within the applicable period. 
Lay evidence
should describe the material and relevant facts as to the
Veteran’s disability observed within such period, not
merely conclusions based upon opinion
.”
 
Pursuant to 38 U.S.C. § 7104(a), “[t]he Board is
required to consider all relevant evidence of record
and to consider, and discuss in its decision, all
‘potentially applicable provisions of law and
regulation.”
 Majeed v. Principi
, 16 Vet.App. 421, 431
(2002)
The Board’s statement of its “reasons and bases”
must provide "a clear analysis of the evidence that it
finds persuasive or unpersuasive with respect to th
e
pertinent issue, and 
to provide the reasons for its
rejection of any material evidence favorable 
to the
veteran.“ 
Cohen v. Brown
, 10 Vet.App. 128, 143 (1997
 
 
Whether at a hearing or in a written statement, be sure the
testimony is:
Competent
 (i.e., the issue is something they know first-
hand)
Consistent
 with evidence and prior statements extant in
file
Corroborates
 evidence extant in the file, especially
official military records
Otherwise, their 
credibility
 will be called into question
 
Smith v. Wilkie
, 32 Vet. App. 332 (Apr. 27, 2020) (holding that the Board must provide notice or
an opportunity for the claimant to respond before changing an earlier favorable credibility
determination).
 
Statement or testimony should describe in as much detail as
possible the 
circumstances of the injury
 
or 
event
 
during service or
describe the 
symptoms of disease
 
during service, the presumptive
period or since service.
Look to SMRs, buddy statements, performance reports,
newspaper articles, letters from the veteran and others who had
reason to know about the incident, and statements of friends and
family members to corroborate Vet’s statements.
Lay evidence should be 
relevant
, e.g. Thailand Vet’s statement
should put him on or near the base perimeter daily; Korea Vet’s
should put him on or near the DMZ, etc.
ONLY STATE THAT WHICH YOU CAN REASONABLY PROVE!
 
 
Section 1154(b):
 
“In the case of any veteran who engaged in combat with the
enemy … the Secretary shall accept as sufficient proof of
service-connection … 
satisfactory lay or other evidence
 … if
consistent with the circumstances, conditions, or hardships
of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation … and, to
that end, 
shall resolve every reasonable doubt in favor of
the veteran.
 
Service-connection of such injury or disease may be rebutted
by clear and convincing evidence to the contrary. The reasons
for granting or denying service-connection in each case shall
be recorded in full.”
 
 
 
 
Ways to corroborate combat service:
 
Service Records
Military Decorations*
Hazardous Duty Pay
Buddy Statements
Evidence that base was attacked by enemy
 
VA cannot conclude the veteran did not engage in combat
simply because a veteran did not have a MOS, award, or
decoration indicating combat. 
It must consider all evidence
.
 
 
*Purple Heart, Combat Medical Badge, Air Medal with "V" Device, Distinguished Flying Cross, Army
Commendation Medal with "V" Device, Distinguished Service Cross, Bronze Star Medal with "V" Device, Combat
Aircrew Insignia, Combat Action Ribbon, Air Force Cross, Combat Infantry Badge, Medal of Honor, Navy
Commendation Medal with "V“ Device, and the Silver Star.
 
 
 
CAVC held that “a non-combat veteran’s lay
statements must be weighed against other
evidence, including the absence of military
records supporting the lay assertions.” 
Bardwell v.
Shinseki, 
24 Vet. App. 30, 40 (2010).
 
 
 
When the stressor is not related to combat, a
veteran's testimony alone does not qualify as
"credible supporting evidence" of the occurrence of
an in-service stressor. After-the-fact psychiatric
analyses which infer a traumatic event are likewise
insufficient in this regard.
Exceptions are “fear of hostile military or terrorist
activity” diagnosed by VA psych or MST cases.
 
 
“While the lack of contemporaneous medical records may be
a fact that the Board can consider and weigh against a
veteran’s 
lay evidence
, the 
lack of such records 
does not, in
and of itself, render lay evidence not credible.” 
Buchanan v.
Nicholson,
 451 F. 3d. 1331, 1336 (2006).
CAVC found that there must be some valid basis to support an
inference that a veteran’s testimony concerning an alleged
injury or event would have been recorded 
in a medical
record for the lack of any such recording to serve as the basis
for finding the veteran’s testimony incredible. 
Kahana v.
Shinseki,
 24 Vet. App. 428, 433– 34 (2011)
.
Example: Unreported personal assault
 
 
 
 
 
 
“Where the determinative issue involves either
medical etiology or a medical diagnosis, competent
medical evidence is required … where the
determinative issue does not require medical
expertise,
 
lay testimony may suffice by itself
.
Caluza v. Brown, 7 Vet. App. at 504 (1995).
The Federal Circuit suggested a broken leg as an
example of when a lay person may be competent to
make a diagnosis and cancer as an example of when a
lay person is not. 
Jandreau v. Nicholson, 492 F. 3d
1372, 1376– 77 (2007).
 
 
 
 
 
 
 
 
Lay evidence
 can be competent and sufficient to
establish a diagnosis of a condition when:
1.
A layperson is competent to identify the medical
condition
2.
 The layperson is reporting a contemporaneous
medical diagnosis (i.e., where the veteran states
that a doctor told the veteran that the veteran
suffered from a particular diagnosed condition)
3.
Lay testimony describing symptoms at the time
supports a later diagnosis by a medical
professional
 
 
 
 
 
 
 
“As a general matter, in order for any testimony to be
probative of any fact, the witness must be competent to
testify as to the facts under consideration.” 
Layno v.
Brown
, 6 Vet. App. 465, 469 (1994).
A
 
lay witness is competent to attest to factual matters
of which he or she has 
first-hand
knowledge
” 
Washington v. Nicholson
, 19 Vet.App. 362,
368 (2005).
Example: A Veteran’s testimony or buddy statements as to
where he performed his military duties is competent even
in absence of corroborating records (e.g. JSRRC)
 
A witness is competent to provide such testimony
or sworn statements if, among other things, he or
she “possesses personal knowledge of the
disputed fact and the expertise necessary to
testify as to that fact.” 
Wise v. Shinseki
, 26 Vet.
App. 517, 528 (2014).
 
Example: Although a Veteran witnessed foliage
being sprayed, he doesn’t necessarily have the
expertise to determine the type of herbicide used
 
VA cannot reject a veteran’s competent lay
statements regarding in-service events simply
because the service records do not corroborate
the events. 
See Jandreau v. Nicholson, 
492 F. 3d
1372 (2007).
 
VA must point to something in the claims file that
supports a conclusion that the event would have
been documented in the service records had it
actually occurred. 
Buczynski v. Shinseki
, 24 Vet.
App. 221, 224 (2011).
 
 
CAVC held that the Board may not disregard a
medical opinion 
solely
 on the rationale that the
medical opinion was based on a history given by the
veteran. 
Kowalski v. Nicholson,
19 Vet.App. 171, 179-80
(2005).
Fountain v. McDonald
, 27 Vet.App. 258, 274
 
(2015)
(finding error in the Board’s failure to adequately
explain its determination that a lay person is not
competent to provide etiology evidence for a
condition like tinnitus).
 
 
 
 
“Lack of evidence cannot be substantive negative
evidence.” 
Horn v. Shinseki
, 25 Vet. App. 231, 239
(2012).
The Federal Circuit held that it would be "legally
untenable" for VA to conclude "that absent
confirmatory [record] evidence, lay evidence lacks
credibility," and explained that "the lack of such
records does not, in and of itself, render lay evidence
not credible.“ 
Buchanan v. Nicholson,
 451 F. 3d. 1331,
1336 (2006)
 
However, VA may validly reject a veteran’s
statement that if the veteran’s statement were
really true, there 
should be
 some federal
agency records that corroborate the
statement and the available records do not
corroborate the statement.
 
 
 
CAVC has held that “the reasons or bases
requirement of 38 U.S.C. § 7104(d)(1) . . . requires
the BVA to 
explicitly ‘determine the credibility
of a veteran’s sworn testimony’
 when that
testimony can be the basis for the benefits the
veteran seeks” – and that the Board’s failure to do
so renders its reasons or bases for its decision not
to increase the veteran’s disability rating
inadequate for review. 
Ashmore v. Derwinski
, 1
Vet.App. 580, 583-84 (1991).
 
 
Lay evidence can be extremely useful in proving service
connection claims as long as it meets the definition of
competent evidence.
The problems with lay evidence arise when claimants
try to use lay evidence to prove something beyond
their own experience or expertise, such as the medical
connection between an in-service injury and a current
disability.
Competent lay evidence submitted by a claimant must
be considered by the VA and the Board of Veterans’
Appeals when deciding a claim for benefits.
 
 
 
 
 
Feel free to contact us about questions from
this training or ANYTIME you have a question
about a claim:
 
CACVSO@eagleveteranslaw.com
 
 
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The Fall 2020 Professional Training Conference featured presenters discussing important aspects of compensation claims for veterans under U.S.C. 5103A and 38 CFR regulations. The guidelines emphasize the consideration of medical and lay evidence in determining the necessity of medical examinations and assessing service connection for disabilities. Competent lay evidence plays a crucial role in developing claims, while direct service connection, especially in combat-related cases, requires satisfactory evidence consistent with service circumstances. Understanding these principles is essential for assisting claimants effectively.


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  1. Fall 2020 Professional Training Conference Presenters: Katrina J. Eagle, Esq. Jim Radogna, VA Accredited Agent

  2. 38 U.S.C. 5103A Duty to assist claimants (d)(2): Medical Exams for Compensation Claims: When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant).

  3. 38 C.F.R. 3.159 VA Assistance in Developing Claims 3.159(a)(2): Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.

  4. 38 CFR 3.303 Principles Relating to Service Connection 3.303(a): Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . Each disabling condition shown by a Veteran s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by . . .

  5. 38 CFR 3.303 Principles Relating to Service Connection . . . 1. Service records, 2. the official history of each organization in which he served, 3. his medical records 4. and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record. . .

  6. 38 CFR 3.304 Direct Service Connection 3.304(d) Combat: Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. See also 38 U.S.C. 1154(b) re Combat Presumption

  7. 38 CFR 3.304 Direct Service Connection 3.304(f)(1): if PTSD diagnosis during service: the Veteran s lay testimony alone may establish the occurrence of the claimed in-service stressor. 3.304(f)(2): if Veteran engaged in combat: the Veteran s lay testimony alone may establish the occurrence of the claimed in-service stressor. 3.304(f)(3): if claimed stressor is related to Veteran s fear of hostile military or terrorist activity: the Veteran s lay testimony alone may establish the occurrence of the claimed in-service stressor.

  8. 38 CFR 3.307 Presumptive Service Connection 3.307(b) Evidentiary basis: The factual basis may be established by medical evidence, competent lay evidence, or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the Veteran s disability observed within such period, not merely conclusions based upon opinion.

  9. Pursuant to 38 U.S.C. 7104(a), [t]he Board is required to consider all relevant evidence of record and to consider, and discuss in its decision, all potentially applicable provisions of law and regulation. Majeed v. Principi, 16 Vet.App. 421, 431 (2002) The Board s statement of its reasons and bases must provide "a clear analysis of the evidence that it finds persuasive or unpersuasive with respect to the pertinent issue, and to provide the reasons for its rejection of any material evidence favorable to the veteran. Cohen v. Brown, 10 Vet.App. 128, 143 (1997

  10. Whether at a hearing or in a written statement, be sure the testimony is: Competent (i.e., the issue is something they know first- hand) Consistent with evidence and prior statements extant in file Corroborates evidence extant in the file, especially official military records Otherwise, their credibility will be called into question Smith v. Wilkie, 32 Vet. App. 332 (Apr. 27, 2020) (holding that the Board must provide notice or an opportunity for the claimant to respond before changing an earlier favorable credibility determination).

  11. Statement or testimony should describe in as much detail as possible the circumstances of the injury or event during service or describe the symptoms of disease during service, the presumptive period or since service. Look to SMRs, buddy statements, performance reports, newspaper articles, letters from the veteran and others who had reason to know about the incident, and statements of friends and family members to corroborate Vet s statements. Lay evidence should be relevant, e.g. Thailand Vet s statement should put him on or near the base perimeter daily; Korea Vet s should put him on or near the DMZ, etc. ONLY STATE THAT WHICH YOU CAN REASONABLY PROVE!

  12. Section 1154(b): In the case of any veteran who engaged in combat with the enemy the Secretary shall accept as sufficient proof of service-connection satisfactory lay or other evidence if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

  13. Ways to corroborate combat service: Service Records Military Decorations* Hazardous Duty Pay Buddy Statements Evidence that base was attacked by enemy VA cannot conclude the veteran did not engage in combat simply because a veteran did not have a MOS, award, or decoration indicating combat. It must consider all evidence. *Purple Heart, Combat Medical Badge, Air Medal with "V" Device, Distinguished Flying Cross, Army Commendation Medal with "V" Device, Distinguished Service Cross, Bronze Star Medal with "V" Device, Combat Aircrew Insignia, Combat Action Ribbon, Air Force Cross, Combat Infantry Badge, Medal of Honor, Navy Commendation Medal with "V Device, and the Silver Star.

  14. CAVC held that a non-combat veterans lay statements must be weighed against other evidence, including the absence of military records supporting the lay assertions. Bardwell v. Shinseki, 24 Vet. App. 30, 40 (2010).

  15. When the stressor is not related to combat, a veteran's testimony alone does not qualify as "credible supporting evidence" of the occurrence of an in-service stressor. After-the-fact psychiatric analyses which infer a traumatic event are likewise insufficient in this regard. Exceptions are fear of hostile military or terrorist activity diagnosed by VA psych or MST cases.

  16. While the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F. 3d. 1331, 1336 (2006). CAVC found that there must be some valid basis to support an inference that a veteran s testimony concerning an alleged injury or event would have been recorded in a medical record for the lack of any such recording to serve as the basis for finding the veteran s testimony incredible. Kahana v. Shinseki, 24 Vet. App. 428, 433 34 (2011). Example: Unreported personal assault

  17. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required where the determinative issue does not require medical expertise, lay testimony may suffice by itself. Caluza v. Brown, 7 Vet. App. at 504 (1995). The Federal Circuit suggested a broken leg as an example of when a lay person may be competent to make a diagnosis and cancer as an example of when a lay person is not. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 77 (2007).

  18. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: 1. A layperson is competent to identify the medical condition 2. The layperson is reporting a contemporaneous medical diagnosis (i.e., where the veteran states that a doctor told the veteran that the veteran suffered from a particular diagnosed condition) 3. Lay testimony describing symptoms at the time supports a later diagnosis by a medical professional

  19. As a general matter, in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Alay witness is competent to attest to factual matters of which he or she has first-hand knowledge Washington v. Nicholson, 19 Vet.App. 362, 368 (2005). Example: A Veteran s testimony or buddy statements as to where he performed his military duties is competent even in absence of corroborating records (e.g. JSRRC)

  20. A witness is competent to provide such testimony or sworn statements if, among other things, he or she possesses personal knowledge of the disputed fact and the expertise necessary to testify as to that fact. Wise v. Shinseki, 26 Vet. App. 517, 528 (2014). Example: Although a Veteran witnessed foliage being sprayed, he doesn t necessarily have the expertise to determine the type of herbicide used

  21. VA cannot reject a veterans competent lay statements regarding in-service events simply because the service records do not corroborate the events. See Jandreau v. Nicholson, 492 F. 3d 1372 (2007). VA must point to something in the claims file that supports a conclusion that the event would have been documented in the service records had it actually occurred. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).

  22. CAVC held that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. Kowalski v. Nicholson,19 Vet.App. 171, 179-80 (2005). Fountain v. McDonald, 27 Vet.App. 258, 274(2015) (finding error in the Board s failure to adequately explain its determination that a lay person is not competent to provide etiology evidence for a condition like tinnitus).

  23. Lack of evidence cannot be substantive negative evidence. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The Federal Circuit held that it would be "legally untenable" for VA to conclude "that absent confirmatory [record] evidence, lay evidence lacks credibility," and explained that "the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F. 3d. 1331, 1336 (2006)

  24. However, VA may validly reject a veterans statement that if the veteran s statement were really true, there should be some federal agency records that corroborate the statement and the available records do not corroborate the statement.

  25. CAVC has held that the reasons or bases requirement of 38 U.S.C. 7104(d)(1) . . . requires the BVA to explicitly determine the credibility of a veteran s sworn testimony when that testimony can be the basis for the benefits the veteran seeks and that the Board s failure to do so renders its reasons or bases for its decision not to increase the veteran s disability rating inadequate for review. Ashmore v. Derwinski, 1 Vet.App. 580, 583-84 (1991).

  26. Lay evidence can be extremely useful in proving service connection claims as long as it meets the definition of competent evidence. The problems with lay evidence arise when claimants try to use lay evidence to prove something beyond their own experience or expertise, such as the medical connection between an in-service injury and a current disability. Competent lay evidence submitted by a claimant must be considered by the VA and the Board of Veterans Appeals when deciding a claim for benefits.

  27. Feel free to contact us about questions from this training or ANYTIME you have a question about a claim: CACVSO@eagleveteranslaw.com

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