Veterans of Korea

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PostPosted: Wed Dec 05, 2012 6:13 pm 

Joined: Wed Dec 05, 2012 12:25 am
Posts: 20
Below are some legal terms that my help you better understand decisions you read as well as some to the rules that may be applied.

Competency is a legal view in determining whether medical or lay evidence is to be admissible and considered. Admissibility is not the same as credibility, weight, probative value. Admissibility goes directly to whether it is even to be allowed to be considered. Admissibility has to be established even before the others come into play.

Competent lay evidence means that the evidence does not require the person offering it to have been educated in the field it is being offered, specialized training or experience. It is based on whether the person has knowledge of the facts and circumstances than can be described by a lay person.

Competent medical evidence is evidence provided by a medical person, that being someone who is qualified by education, training, license or medical experience to give a diagnosis or opinion on the facts they are presenting.

Now like everything else, there are exceptions. Lay evidence can be admitted and be competent and sufficient to establish a diagnosis when the layperson is shows they are competent to identify a medical condition that would be obvious to any lay person or if the lay person describes symptoms that later supports the finding or diagnosis by a medical person.

A court, or in these cases the board or VA should determine the probative value or the weight and credibility of the admitted evidence or admissible evidence is then decided.

Weight and credibility is a factual determination going to the probative value of the evidence, does the evidence tend to prove a fact, once the evidence has been admitted and before them.

Now for the balancing they are required to do. When there is a balance of positive and negative evidence, or in other words, equal, in determining a fact or issue material to the determination of the claim, then the benefit of doubt should be given to the veteran.

One case stated:

Similarly, the Board ascribes very limited probative value to the Veteran's recollections of Agent Orange exposure. The research performed by the JSRRC is quite conclusive in its determination that the unit and base histories did not "document the use, storage, spraying, or transportation of herbicides."

Not sure if that confuses you or helps you get a grasp on some of the decisions or terminology that you've read. Keep in mind, I ain't no lawyer, just my insight as to what these things mean and they can usually be found specifically within the VA rules, federal rules or case law relating.

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