Go to navigation Go to content
Toll-Free: (877) 629-1712
Phone: (303) 449-4773
Sean Kendall

Physical Disabilities

VA often avoids service connecting injuries that were incurred in service because of lack of medical records.  However, my firm has been on the leading edge of overcomming this mistaken impression by VA.

In one recent case, the Court acknowledged that in its role as factfinder, the Board of Veterans' Appeals must first "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."
Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).  The Court held tht in certain situations, lay evidence may be used to diagnose a veteran's medical condition.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay evidence may be used to diagnose a condition when "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional").  

When considering lay evidence, the Board should determine whether the veteran's disability is the type of disability for which lay evidence is competent.  If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determination regarding the existence of service connection.  In this case, there were numerous statements from witnesses that the veteran injured himself in service.
In this case, the Board acknowledged that lay testimony was offered by the veteran and three other witnesses.   Specifically, the Board broadly stated that "there is no indication in the record that either the veteran or his affiants have the medical training necessary to offer competent opinions on matters of medical etiology."  However, the Court found that this was not a permissible finding by the Board because the witnesses testimony was evidence that the back disability began in service.  The lack of medical records in service was not considered dispositive of whether the back condition started in service.  The Court set aside the Board decision and remanded.  On remand, the veteran used his witness statements to prove service-connection.

Do not let the VA deny your claim because of lack of in-service medical records.  The job of a unit in the military is not to keep medical records and the Veteran's Court has held numerous times that lack of in-service records is not a basis to deny service-connection.  My firm helps veterans overcome this obstacle thrown up by the VA in their cases.  I am an expert and have litigated numerous physical disability cases, including back and neck injuries, peripheral neuropathy, diabetes, hip and knee injuries.