I was out for drinks with a few friends the other day – one of them is a big fan of a mixed drink with 2 ingredients:
Red Bull and Vodka.
After crossing what probably should have been his limit, he ordered another, saying: “I can’t get enough of this drink – it really gives me Wings.”
Well, after getting him safely tucked in a cab to his house, I got to thinking: Lay Evidence is like Red Bull to your VA Claim. It gives it wings.
Yeah…I’m a dork. I think about VA Claims ALL the time. Like I’ve said, I’m a Man on a Mission.
I found myself asking the same question about lay evidence that my friend asked about Red Bull & Vodka drink:
Why doesn’t everyone use MORE Lay Evidence in their VA Claims?
This Veteran Learned How POWERFUL Competent and Credible Lay Evidence Can Be in a VA Claim.
You combat vets are going to love this story.
The Veteran in this court case was injured in a “horse-play” incident – a fellow soldier punched him in the shoulder numerous times with a closed fist.
The Veteran believed this injury was what caused his shoulder disability.
Okay, combat vets, grumble away – you’re struggling to get service connected for a gunshot wound or TBI, and this guy likely just won his claim for getting hurt playing “Two-For-Flinching”? Ignore that for a moment…focus on what I am going to tell you now.
There was NO evidence of treatment for this injury in service. The Veteran gave a plausible reason, which the BVA found competent and credible. The Vet was about to go home and didn’t want to be held over for medical reasons.
That makes sense, doesn’t it? How many Vietnam Veterans hid an injury to avoid medical treatment that might extend their DEROS (Date Eligible to Return from Overseas Service) and require them to be away from home that much longer?
So you have a Veteran with a shoulder injury, and a plausible reason for no medical treatment.
Even though the Veteran gave Credible & Competent Testimony as to the reason he did not seek treatment for his in-service injury, and even though his testimony as to the in-service incident (the “horseplay” game with other soldiers), the C&P examiner found that there was “no evidence” of a service treatment record for an injury of this nature.
SCREEEEEECH. (That’s the sound of a needle scraping across a record player.)
What did the C&P Examiner say?
He said (in effect if not in actual words) that the reason he couldn’t service connect was because there wasn’t in-service medical treatment, even though the Veteran gave competent & credible testimony as to why there wasn’t a record of in-service medical treatment.
That’s like telling your teenage son: “I believe that you didn’t steal the car last night, but am punishing you for stealing the car last night.”
Not only that…. it breaks 2 very clear rules of VA Claims Processing:
1) The absence of evidence is not NEGATIVE evidence. Just because you can’t prove that something happened does not – in a VA claim – mean it didn’t happen.
2) If you offer 5-Star Lay Evidence – probative, material, and relevant evidence that is competent and credible – the VA MUST consider it.
Bottom Line: If you are missing proof in your VA Claim, Get Competent and Credible Lay Evidence.
In the end, this was the essence of the Court’s ruling over-turning the BVA denial of service connection:
“Of course there is no record of treatment in service: a competent and credible witness said that there would not be”
In light of this decision, we can add one more rule to the above list:
If you don’t have evidence that something happened in-service, fill the “gap” with competent and credible Lay Evidence.
Like the Veteran in this case, it will give your VA Claim “wings”.
Learn HOW to fill that gap by checking out the VA Claims Evidence Field Manual:
This post refers to the court’s non-precedential single judge decision in Snadon v. McDonald, CAVC Cause #13-2141 (August 8, 2014)