Good afternoon and welcome to this edition of Alabama Law TV.
My name is Cindy Speaker.
I have with me today attorney Nathan Guin from Gardberg and Kemmerly, Attorneys at Law.
They're located headquartered in Mobile, Alabama.
They handle veterans' disability cases throughout the country.
Nathan, thanks for being with us Thank you for having me again.
I always enjoy it and glad to spread some good information to our veterans.
Yes, it's very helpful.
We've got an archive for those of you watching now.
There's an archive of information on Facebook, the videos on Facebook.
Nathan has presented many times on various aspects of veterans disability law.
Very, very helpful.
Today we're gonna talk about a new topic, one that I'm not familiar with, and that is
lay evidence.
Why don't you start off telling us, what is lay evidence?
What constitutes lay evidence in a veterans disability claim?
Okay.
In a veterans disability claim, lay evidence is basically any evidence and all evidence
that is not medical.
If you have a statement from the veteran, a statement from his family members, friends,
people that they served with, any statement regarding the veteran's condition or things
that happened in the past, anyone who's not a medical professional but would have personal
knowledge regarding the veteran's either current condition or in service injury, things like
that.
It'd be any kind of non-medical expert that can provide some kind of information that's
pertinent to the claim.
In what types of cases is that valuable for claims?
They're valuable in all cases.
I think that sometimes it's undervalued.
I think a lot of times they're used for service connection, which is really helpful, especially
when you have Vietnam veterans, things like that, where if you're in the jungle there's
not a lot of good record-keeping.
If you can find somebody who says, "I was there when Joe broke his leg in the jungle
and there's no records of it, but I know it happened," that could be really helpful.
But it also could be used, I think it's under-utilized, in unemployability cases and also in increase
cases.
At that point, you're already service-connected.
Lay evidence can be really valuable in terms of capturing things that you can't really
see in medical records, what kind of functional limitations an orthopedic condition might
cause.
If a veteran has PTSD and his wife wants to write a statement, she thinks that his symptoms
have gotten worse, he under-reports to his medical provider, that's really helpful evidence
because that's someone who lives with him every day who may see some things that they
don't see themselves.
They can be helpful in any type of case and I think they're sometimes under-utilized.
Yeah, that makes sense.
What are the VA's duties regarding the evaluation and analysis of lay evidence?
They're required to consider all lay evidence.
They have to assess the credibility and they can weigh it in any way they see fit.
They just have to give you reasons and bases for how they weigh that evidence.
They also can't just dismiss.
There's certain levels of consideration they have to give.
For example, just because there's no contemporaneous or medical evidence that confirms what the
lay evidence says or there's not any documentary evidence other than the statement of either
the veteran or whoever it may be, they can't just dismiss that out of hand.
They can't say, "Well, there's nothing else to support that.
Therefore, the lay evidence is not privative.
It's not credible.
There's nothing we can do there."
They have to give it a good bit of deference and really have to look into it.
Now, they can analyze it for negatives, too, which I think we can get into in a little
bit.
But they really have to treat it as if it's any other piece of evidence, medical evidence
or otherwise.
They have to give it its full consideration, even if the record doesn't necessarily bear
out or confirm or corroborate, which is not probably the best word, but what's being said
in the statement.
Yeah.
When is the best time to develop the lay evidence?
Anytime is good.
The earlier the better, especially the way things are now and, I guess, even the way
they will be.
The earlier you can get evidence in, I think, is always the best because when you start
at the beginning, that's when you can maximize your opportunities in terms of how many times
you can appeal, how many different people can lay eyes on a particular piece of evidence.
There's no time that's too early.
You can get lay evidence even when you file it and file it with your original claim.
You don't have to wait until you get denied.
You wanna get that in the hands of somebody who can see it as quickly as possible.
As you're going along, if you think about it, just even in passing on a regular basis,
this person may be able to get some information.
At any point, it's valuable but the earlier, I would say, the better.
Yeah.
It brings up another point, as with all of these claims.
It's so important for the veteran to be documenting things, right?
Absolutely.
Documenting everything that you can, you don't have to write it down, but just remembering
things functionally around the house that you can't do, especially when you go see your
doctors.
A lot of the times, at any given appointment, you can be having a better day than any other.
It may not be borne out in the records what the real disability picture is.
Documenting different things and having people in your life that maybe have a more objective
view.
I know that if you ask me and my wife to write down what was wrong with me and ask her to
write the same thing, we'd probably come up with completely different answers.
Hers might be more extensive than mine.
That's the case with veterans claims, too.
A lot of times we don't wanna see things in ourselves that we don't wanna see, so we have
to rely on other people to put that out there for us.
That's a great point.
That's a great point.
What challenges can the VA bring to reduce the credibility or value of lay evidence?
They can evaluate it for, basically, bias.
They can affect the credibility if they think that you're really just, for lack of a better
term, hamming it up just to help out whoever it is you're trying to help out.
They can look at it from a critical perspective, but they still have to give you a reason or
basis for how they weigh your evidence.
If they think it lacks credibility, why does it lack credibility?
But they can always, just because they have to consider it doesn't mean they can't discount
it, but they have to really point to a concrete reason as to why that lay evidence is either
not credible or fraudulent or embellished, whatever you wanna say.
They can look at it as of course anything else, too.
Yeah.
Complicated stuff.
It is.
I wish that we could go for hours on some of this stuff, so hopefully I'm getting some
good information out there because we could really get in the weeds pretty quick on some
of this stuff.
Yeah, yeah.
Hopefully this makes sense.
Well, now, if someone has questions and concerns, how can they reach you?
How can they reach Gardberg & Kemmerly?
They can comment on this video, so if you're watching right now just put your questions
in the comment box below and we'll get an answer to you as quickly as we possibly can.
You can call us in Mobile at 251-343-1111, or you can find us at GardbergLaw.com.
That's G-A-R-D-B-E-R-G-L-A-W.com.
Again, we're in Alabama, we're in Mobile, but we're all accredited through the VA.
We can practice in any regional office throughout the country.
If you're in Montana, you're in California, you're in Maine, you need an attorney, you
can't find one, we can still help you out from Mobile.
Don't hesitate to give us a call or send us an email and we'll be more than happy to evaluate
your case.
That is great.
Great information.
Thank you.
Listen, Nathan, once again thank you for being with us today.
We appreciate it.
Absolutely.
Thank you for having me.
I'm glad to be on anytime.
That's awesome.
Well, I'm sure we'll talk to you again soon.
Absolutely, I'm looking forward to it.
Okay, so as Nathan said to those of you watching, you can leave comments right on this page.
We'll get back to you, answer your questions.
Feel free to just list those comments there and we will see you all again soon.
Thanks, everybody.
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