Evidence is another area in which veterans law is in need of a good working framework. There are no formal rules of evidence in the field. Instead, there is a lot of confusing common law that has a conflicted relationship with the Federal Rules of Evidence.
What is clear is that nothing is ever excluded. Everything a veteran submits goes into the claims file and must be given whatever weight is appropriate. For a long time, the U.S. Court of Appeals for Veterans Claims (CAVC) endorsed a fairly bright line rule that lay statements were not competent evidence on medical issues of diagnosis and causation that are central to so many claims. However, the Federal Circuit upset the apple cart in a series of cases, including Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Jandreau in particular held that “[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.” However, the more interesting case is Davidson. In that case, the veteran drowned while swimming with his cousins at a pool. His widow believed that the death was a service-connected suicide, but a VA psychiatrist reviewed the available evidence and disagreed. The CAVC affirmed the agency’s determination that the widow’s belief was not competent to rebut the opinion of the expert psychiatrist, but the Federal Circuit reversed and remanded the case for a new determination. However, the reasoning of Davidson is not clear, and there is disagreement as to what it really means in terms of lay opinions being at least as probative as those of experts.
The real question has become: What principles of medicine are within the common knowledge of a lay person such that no expert evidence is required? This is a hard question because whatever they are, logically, they are also within the common knowledge of the lay adjudicators and therefore could also be used to deny claims without an expert opinion. One of the seminal cases of veterans law is Colvin v. Derwinski, 1 Vet. App. 171 (1991), which held that the Board of Veterans’ Appeals must base its decisions upon “independent medical evidence.” In practice, this created a separation of evidence and decision making by removing from the Board all the doctors that had been members. Ever since Colvin, one of the greatest sins that the Board could commit was to deny a claim based upon its own medical beliefs without obtaining an independent opinion. The Federal Circuit’s push to recognize the evidentiary value of medical common knowledge undermines the foundations of Colvin and raises far more questions than it answers.
Another problem is that it is not clear where the line is between medical common knowledge and administrative/judicial notice. The case law is clear that VA adjudicators should not be denying claims based upon their own readings of medical dictionaries, treatise evidence, or internet articles. However, the law is murky as to how exactly this evidence should be weighed. Given how much of what lay persons believe about medicine comes from such sources, it is hard to say when recognizing medical common knowledge is not just taking improper administrative notice through the back door.
For those interested in evidence, there is a great opportunity to write an article outlining a coherent approach to medical common knowledge that allows some claims to be granted without expert opinions, while drawing a clear line as to when expert evidence is needed. How would you explain to the non-attorney adjudicators at VA’s regional offices when to seek an expert opinion and when to accept the veteran’s belief as to the cause of a condition?
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