(Transcript)

Cindy Speaker:  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 today.

Nathan Guin:  Thank you for having me again. I always enjoy it and glad to spread some good information to our veterans.

Cindy Speaker:  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?

Nathan Guin:  Okay. So 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.

Cindy Speaker: In what types of cases is that valuable for claims?

Nathan Guin: 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.

Cindy Speaker:  Yeah, that makes sense. What are the VA’s duties regarding the evaluation and analysis of lay evidence?

Nathan Guin: 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.

Cindy Speaker: Yeah. When is the best time to develop the lay evidence?

Nathan Guin:  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.

Cindy Speaker:  Yeah. It brings up another point, as with all of these claims. It’s so important for the veteran to be documenting things, right?

Nathan Guin: 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.

Cindy Speaker:  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?

Nathan Guin: 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.

Cindy Speaker:  Yeah. Complicated stuff.

Nathan Guin: 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.

Cindy Speaker: Yeah, yeah.

Nathan Guin: Hopefully this makes sense.

Cindy Speaker: Well, now, if someone has questions and concerns, how can they reach you? How can they reach Gardberg & Kemmerly?

Nathan Guin: 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.

Cindy Speaker:  That is great. Great information.

Nathan Guin:  Thank you.

Cindy Speaker: Listen, Nathan, once again thank you for being with us today. We appreciate it.

Nathan Guin:  Absolutely. Thank you for having me. I’m glad to be on anytime.

Cindy Speaker: That’s awesome. Well, I’m sure we’ll talk to you again soon.

Nathan Guin: Absolutely, I’m looking forward to it.

Cindy Speaker: 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.