Lay Evidence:

BVA Citation Nr: 0723756

However, the United States Court of Appeals for the Federal 
Circuit (Federal Circuit Court) has held that lay evidence is 
one type of evidence that must be considered and competent 
lay evidence can be sufficient in and of itself. The Board, 
however, retains the discretion to make credibility 
determinations and otherwise weigh the evidence submitted, 
including lay evidence. See Buchanan v. Nicholson, 451 F.3d 
1331, 1335 (Fed. Cir. 2006). This would include weighing the 
absence of contemporary medical evidence against lay 
statements. 
 
In Jandreau v. Nicholson, No. 2007-4019 WL 1892301 Vet. App. 
July 3, 2007), the Federal Circuit Court determined that lay 
evidence can be competent and sufficient to establish a 
diagnosis of a condition when (1) a layperson is competent to 
identify the medical condition (noting that sometimes 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), (2) the 
layperson is reporting a contemporaneous medical diagnosis, 
or (3) lay testimony describing symptoms at the time supports 
a later diagnosis by a medical professional. The relevance 
of lay evidence is not limited to the third situation, but 
extends to the first two as well. Whether lay evidence is 
competent and sufficient in a particular case is a fact 
issue.
 
Once evidence is determined to be competent, the Board must 
determine whether such evidence is also credible. See Layno, 
supra (distinguishing between competency ("a legal concept 
determining whether testimony may be heard and considered") 
and credibility ("a factual determination going to the 
probative value of the evidence to be made after the evidence 
has been admitted")). See Barr v. Nicholson, No. 04-0534 WL 

1745833 Vet. App. June 15, 2007).