On December 5, 2012, the Federal Circuit issued an opinion in King v. Shinseki regarding whether the Court of Appeals for Veterans Claims (CAVC) properly considered Mr. King’s proffered lay evidence demonstrating that his back and hip disabilities were secondarily service-connected to his knee disabilities. The majority held that the CAVC correctly considered whether the Board of Veterans’ Appeals improperly discounted lay testimony from Mr. King and his wife concerning the causation of his back and hip disabilities. Consequently, the Federal Circuit held it was without jurisdiction to review Mr. King’s claims since “they involve a review of the application of law to fact.” Judge O’Malley authored a strongly-worded dissent, arguing the majority erred in characterizing “the findings of the [CAVC] and those of the Board before it as consistent with 38 U.S.C. § 5107(b) and [the Federal Circuit’s] case law interpreting that mandate.”
Judge O’Malley and the majority disagreed as to the application of 38 U.S.C. § 5107(b) to the facts in King v. Shinseki but, significantly, agreed with the principle of law as set forth in an evolutionary line of cases from Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) through Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under 38 U.S.C. § 5107(b), the VA must consider both lay and medical evidence when considered a case. Further, under 38 C.F.R. § 3.307(b), “competent lay evidence [may be used to establish medical etiology or a medical diagnosis.]” In simple terms, lay evidence may be sufficient to establish the nexus between a current diagnosis and a disability that arose while in service depending on the facts of the case.
What does this mean for a veteran with a pending claim before the Department of Veteran Affairs (VA)? Your statements in support of your claim can have a significant impact on the adjudication of your claim. Similarly, statements or affidavits from family members, friends, and co-workers can have the same positive impact on establishing service-connection.
Fink Rosner Ershow-Levenberg provides comprehensive representation before the VA for both veteran and survivor benefits. If you have questions regarding your compensation or pension claim, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or through our website at www.finkrosner.com.