One of the most common reasons for denying a VA disability claim is the statement:
The evidence does not show a current diagnosed disability.
For many disabilities, that conclusion may be correct. However, experienced service officers should recognize that the analysis does not always end there. Before accepting a denial based on the absence of a medical diagnosis, it is important to ask a fundamental legal question:
Is this a disability that must be established by a medical diagnosis, or is it one that may be established through competent lay evidence? The answer begins with understanding how veterans law evaluates lay evidence. That analysis starts with the difference between competency and credibility.
Competency vs. Credibility
In Layno v. Brown, the Court established one of the foundational principles of veterans law:
Competency… must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered… while the latter is a factual determination going to the probative value of the evidence.
This distinction is critical:
Competency asks whether the veteran is legally qualified to testify about a particular fact based upon personal knowledge.
Credibility asks whether that testimony should ultimately be believed.
These are two separate analyses.
A veteran is generally competent to testify about matters that come through his or her own senses, including what was seen, heard, felt, or experienced personally. In other words, a veteran may testify about observable symptoms, but generally may not diagnose a medical condition or offer a medical opinion requiring specialized medical expertise. Lay evidence is often used to establish the presence, onset, frequency, severity, or continuity of symptoms, even when a medical diagnosis is ultimately required.
Understanding this distinction helps prevent service officers from overlooking valuable lay evidence already contained within the claims file or from recognizing when an additional statement from the veteran could become the most important piece of evidence in the appeal.
Not Every Disability Is the Same
VA’s Decision Assessment Document summarizes Barr with a principle every service officer should remember: Whether lay evidence is competent to satisfy an evidentiary requirement depends on the type of disability being claimed.
That sentence deserves careful attention. Barr did not create an exception to the rule established in Layno. Instead, it explained how to determine when lay evidence is competent. The answer depends on the nature of the disability being claimed.
The Court explained that some disabilities possess “unique and readily identifiable features” that are capable of lay observation. In those situations, competent lay evidence may establish the existence of the disability because identifying the condition is not inherently medical in nature.
The practical lesson for VSOs is straightforward: When reviewing a denial based on the absence of a diagnosis, do not immediately assume the analysis is complete. Instead, ask whether the claimed disability is one that can be identified through the veteran’s own observations and personal experience.
Competent Evidence Must Still Be Evaluated Properly
Once a veteran provides competent lay evidence, the next question is whether VA evaluated that evidence correctly. Sometimes VA gives little weight to competent lay evidence simply because there are no treatment records documenting the reported symptoms.
The Federal Circuit addressed this issue in Buchanan v. Nicholson. The Court held that a lack of treatment records does not automatically mean the veteran’s statement has no value. VA may consider the absence of medical records, but it must also fairly consider the veteran’s competent lay evidence.
Practical Application
The following questions provide a practical framework for evaluating denials involving lay evidence:
- Is the veteran competent to report the symptoms at issue?
- Is the claimed disability capable of lay observation?
- Has the veteran provided a clear statement describing the onset, persistence, and current symptoms?
- Did VA properly evaluate that lay evidence, or was it discounted simply because there was no medical diagnosis or no contemporaneous treatment records?
The answers to those questions will not determine every appeal. However, they will help identify claims where important legal principles may have been overlooked.
It is also important to remember that identifying a legal error does not always determine the best advocacy strategy. In many cases, obtaining a medical diagnosis or medical opinion may still be the quickest and most effective path to securing a favorable decision. However, there are situations where obtaining that evidence is not practical, not available, or would create unnecessary delay. Understanding when competent lay evidence may satisfy an evidentiary requirement gives service officers another tool to advocate effectively for veterans. The goal is not simply to identify legal arguments. The goal is to secure the grant as quickly and accurately as possible for the veteran.
Veterans law is not simply a collection of case citations. It provides a framework for understanding how VA is expected to evaluate evidence. Simply asking these questions can help service officers recognize appealable issues that might otherwise go unnoticed. The following examples illustrate how these principles may apply in everyday claims.
Common Situations Where This Analysis May Apply
The following examples are not exhaustive, but they illustrate situations where competent lay evidence may play an important role in developing or supporting a claim. Examples may include:
- Ringing in the ears (tinnitus)
- Headaches or migraines
- Dizziness or vertigo symptoms
- Observable skin conditions
- Varicose veins
- Scars and other visible physical conditions
- Joint instability, locking, or giving way
- Pain and other symptoms that the veteran can personally observe and describe
By contrast, many conditions require specialized medical testing or expertise to diagnose, such as most forms of cancer, heart disease, kidney disease, diabetes, or neurological disorders. In those situations, a medical diagnosis will generally remain essential. The key question is not whether the veteran has a diagnosis.
The key question is whether the fact at issue is something the veteran is competent to observe and report. Understanding that distinction helps service officers recognize when lay evidence may play a critical role in establishing the claim. Knowing when to develop additional medical evidence and when to strengthen the record with competent lay evidence is one of the skills that separates a good service officer from an exceptional one. Ultimately, the goal is not to replace medical evidence with lay evidence. The goal is to recognize when each type of evidence can best serve the veteran’s claim.