I don’t know if the BVA is just scared of Lay Evidence, or if they just don’t “get it”.
What I do know is that Lay Evidence can make or break a VA Claim, and the BVA knows it.
In an earlier post, I discussed a BVA Judge who – in 2012 – relied on case law that had been reversed in 2009.
The Court of Appeals was mildly perplexed and gently spanked the BVA Judge for, essentially, not paying attention to changes in the law.
Sure, this sort of decision reflects some of the big problems in the VA bureaucracy.
But it is only half of the story.
Underlying the BVA’s use of outdated case law in its decision is a core concept about BVA decisions that most Veterans aren’t aware of: the BVA really struggles with lay evidence.
As Paul Harvey used to say, here is the Rest of the Story.
What is Lay Evidence in a VA Claim?
At its core,Lay Evidence in a VA Claim is evidence that doesn’t require “specialized” knowledge or expertise:
Your “buddy statement” corroborating what happened to you in service is “lay evidence”.
Your testimony about the symptoms of your current disability is “lay evidence”.
Your wife’s testimony about the diagnosis that was communicated to you at the XYZ Military Hospital 20 years ago is “lay evidence”.
Your military performance evaluations before and after a rape in service are lay evidence.
You should have lay evidence to every element of your claim – each of the 4 Pillars of your VA Claim.
Why is Lay Evidence in a VA Claim SO Important?
It used to be the Board’s rule – endorsed by the Court of Appeals for Veterans Claims – that lay evidence was worthless, unless a doctor corroborated it.
This was the law for so long that it became part of the culture at the BVA. To me, BVA judges just do not seem to like, value, or even properly weigh lay evidence because their culture has a long history of saying that lay evidence is inherently unreliable.
Why? Honestly, who knows – and who cares.
The law made an abrupt turn with the Jandreau case.
If you ask me, Jandreau is one of the 10 cases that every Veteran needs to know – not just because its the law, but because it teaches us how to use the law in our own VA claims.
The bottom line is this:
Jandreau teaches us that Lay evidence can be used to establish any number of things in a VA Claim:
* to identify medical conditions (rare),
* reporting an earlier medical diagnosis (much more common),
* symptoms in support of a later diagnosis by a medical professional (very common),
* and more.
The BVA commits remandable error unless it specifically addresses favorable lay evidence in its decision.
Do you see the Pure Raw Power of Lay Evidence in a VA Claim? It can push the VARO or BVA into a situation where they have to rely on it, or fully explain why they didn’t.
There is a catch, though:Lay Evidence in a VA Claim has zero evidentiary value if the BVA Judge does not think it is credible and competent.
How do you submit lay evidence?
A lot of Veterans use VA Form 21-4138. This is, essentially, the VA Form for a Blank Piece of Paper. There are 2 problems with using this form:
Problem #1: the C-File is often so full of these forms, that the VA rater overlooks the information in them.
Problem #2: The information on VA Form 21-4138 can be easily dismissed by the BVA because of these words on the form: “I CERTIFY THAT the statements on this form are true and correct to the best of my knowledge and belief.”
There is no legal value in certification that information is “true and correct”.
It establishes that the affidavit is competent, but it does not establish that it is credible. All evidence must be competent, but credible evidence is given far more weight than merely competent evidence. By analogy, if competent evidence is a shiny nickel, then credible evidence is a crisp new $100 bill.
Solving the problem of Credible Lay Evidence.
If you are going to take the time to submit lay evidence, wouldn’t you rather the BVA see it as a crisp new $100 bill, instead of a shiny new nickel? Of course you would.
How do you do this?
If you have some time and money, you can pay a notary to administer an oath and affirm that you signed a document under penalty of perjury.
Option B: Don’t waste time and money on a Notary signature – use the Sworn Declaration Form my Firm uses.
Here is the Sworn Declaration form that the ALF uses to add lay evidence to the Veteran’s C-File.
Benefits of using the Sworn Declaration:
It does not require a notary’s signature (saving you $8 – $12 for a notary fee and all the travel time to and from the notary’s office).
According to 28 USC § 1746 – carries the same weight as a notarized affidavit. Just be aware: by using this form you are saying that you are making the statements “under pain of perjury”. That means that if the VA can show you lied in this document on a material fact, you could be charged with perjury (that’s a crime, folks).
It may demonstrate the credibility of your testimony when used instead of a VA Form 21-4138. Even the BVA has to acknowledge that Veterans are not likely to lie about a particular fact if they are aware that they could spend time in Federal prison for lying under oath.
So make darn sure that what you put in this Sworn Declaration is truthful and honest.
Don’t use it to rant, complain, or ask for claim statuses: use it for statements of fact that are within your personal knowledge only.
Other Ways to Learn About Lay Evidence in a VA Claim:
There are over 600 posts full of free information on the VA Blog – a good number of them discuss my concept of 5 Star Evidence.
In addition, the Veterans Law Blog email sends out regular links to posts that will help Veterans to Improve their Own VA Claims.
But for those of you that want more than that, here is an eBook from the Veterans Law Blog Bookstore that may help