Rejecting Lay Evidence in the Face of Silence

Bardwell: Rejecting Lay Evidence

The decision in James A. Bardwell v. Eric K. Shinkseki, Opinion Number 08-2257, decided August 17, 2010, involved the rejection of lay evidence of an in-service occurrence because of a lack of documentation.

The veteran was seeking service connection for bilateral eye disability though in layman’s terms he was functionally blind. He had served in the Navy from 1944 until 1945 and testified that while in the service his eyes were exposed to a chemical gas as a part of a training exercise and that they started to burn. He further explained that his eye sight began to deteriorate from that time.

The veteran submitted a statement from a physician that linked the blindness to a nerve dysfunction consistent with toxic retinopathy and opined the blindness appears “associated with a gaseous chemical exposure.” The VA did not conduct a medical examination on its own but did seek records regarding gas exposure and found none. The Board determined the assertions of gas exposure lacked credibility given the lack of documentation saying they found it incredible that the veteran could have undergone undocumented chemical or gas testing.

The veteran appealed saying the VA failed to fulfill its duty to provide a medical examination. The Court rejected this contention and focused on the lack of proof regarding an actual in-service incident. The Court found “the in-service event, injury, or disease prong does not qualify the quality of evidence necessary to meet its threshold: the evidence must establish that there was a disease, injury, or event in service. The determination as to whether there was an event, injury, or disease in service is a finding of fact for the Board that the Court reviews for clear error.” After situating the appeal as turning on a finding of fact, the Court stated the VA found the veteran’s “assertion that he was exposed to a gas or chemical in service lacked credibility. The Board found that there was no record of such an event in Mr. Bardwell’s records and that it was unlikely that he would have been exposed to chemicals or gases without such an event being noted in his records.” Id. at *4.

The Court considered the argument that the VA was impermissibly rejected lay evidence contrary to Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), which held that the Board could not reject a veteran’s lay evidence about an in-service medical condition solely because that incident was not reported in the service medical records. The Court found the veteran essentially wanted a ruling that a veteran’s lay evidence than any event occurred must be accepted unless affirmative documentary evidence shows otherwise but stated that in fact a non-combat veteran’s lay statements must be weighed against other evidence, including the absence of military records that support the lay statements. Id. at *5

The tough part about this case is that the veteran’s testimony of chemical gas testing is not affirmatively contradicted by any evidence. It seems the Court and the VA are rejecting lay evidence because the incident is not found in the service records whereas in Buchanan the Federal Circuit court specifically prohibited rejection of lay evidence because the incident was not found in the service medical records. Working around Buchanan without a better reason for rejecting the lay evidence is a tough needle to thread for the Court and frankly I would not be surprised to hear more about this case on appeal.

Decided by Judges Hagel, Lance, and Davis.