VA C&P Examiners Ignored Your Lay Statement? Here Is What to Do

CCK Law: Our Vital Role in Veterans Law

If a VA medical examiner ignores a veteran’s lay statement during a Compensation and Pension (C&P) exam, the veteran may be able to challenge that exam by citing the 2020 court case Miller v. Wilkie and asking the Department of Veterans Affairs (VA) for a new examination.

Veterans often submit a personal account of their symptoms or an in-service event, only for the examiner’s report to leave that account out entirely. This gap is often a sign that VA did not fulfill its duty to assist a veteran with a claim, which may legally render the exam inadequate, forcing VA to order another.

Key points of this article include:

• Lay statements for VA are competent evidence of a veteran’s own experiences, even without a medical diagnosis.
• Under Miller v. Wilkie, an exam is inadequate when the examiner fails to address a veteran’s relevant lay statements.
• Veterans can confirm their lay statements are in the record, request their C-file, and review exam reports for gaps.
• Citing Miller alongside cases like Buchanan v. Nicholson, Stefl v. Nicholson, and Nieves-Rodriguez v. Peake can strengthen an appeal.

Do Lay Statements Help VA Claims?

Yes, lay statements can significantly help many VA claims because they provide firsthand, competent evidence that medical records alone may not capture.

A lay statement for VA purposes is a personal account from a veteran or from their friend, family member, or fellow service member supporting the veteran’s disability claim.

“You can’t diagnose yourself unless you’re a medical professional, of course,” says Maura Black, partner at CCK Law. “But you don’t need a medical degree to report what you’ve felt and what you’ve experienced, and neither do those close to you.”

Some examples of lay statements for VA might include:

• A veteran recounting when their migraines first started.
• A fellow service member confirming the veteran’s account of an in-service event that might have contributed to the veteran’s PTSD.
• A veteran’s spouse providing descriptions and a timeline for how their veteran’s sleep apnea has worsened over time.

Sometimes, however, a VA examiner overlooks or otherwise fails to address a veteran’s lay statement in their C&P exam report. This is not simply a missed opportunity — it can be grounds to have the entire examination deemed inadequate and a new one ordered.

Veterans can accomplish this by citing the 2020 decision in Miller v. Wilkie, 32 Vet.App. 249, 260 (2020), which gives them the opportunity to push back against an inadequate exam.

Watch CCK Law Partner Maura Black explain how veterans can push back if an examiner fails to consider lay statements for VA:

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What Is Miller v. Wilkie?

Miller v. Wilkie is a 2020 decision from the Court of Appeals for Veterans Claims (CAVC) that gives veterans a way to challenge C&P exams that have not taken into account the veterans’ relevant lay statements.

This case involved Llewellyn Miller, a veteran who suffered from multiple conditions for which he sought service connection, including GERD and Gulf War-related fatigue. Though Miller supplied VA with personal accounts of his symptomology over the years, his C&P examiners issued unfavorable opinions based on the fact that Miller lacked official treatment records for his conditions.

While the Board of Veterans’ Appeals (BVA) ruled in favor of VA rather than Miller, the case eventually rose up to the CAVC, which ultimately adopted Miller’s argument in its ruling.

According to the official ruling issued by the CAVC regarding Miller v. Wilkie: “We [the Court] hold that when the examiner fails to address the veteran’s lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination.”

In other words, a C&P examiner cannot outright ignore or fail to address the relevant lay evidence of a credible veteran. If this happens, it could be grounds for a new examination to be conducted.

“This is the gap that Miller addresses,” says Maura Black. “VA has a legal duty to assist you with your claim, and part of that duty is providing an adequate medical examination. To be adequate, the examiner has to engage with the relevant lay statements in your file.”

What Do I Do if VA Examiners Ignore My Lay Statements?

Veterans who believe a C&P examiner overlooked their lay statements should consider taking the following steps:

1. Ensure Your Lay Statements Are in the Record

First, the veteran should confirm that a lay statement was actually submitted to VA. If it was not, then the veteran has several methods to submit their lay statement:

• Fill out and submit VA Form 21-4138 to put a personal account in writing.
• Fill out and submit VA Form 21-10210, which covers witness statements from family members or fellow service members.
• A veteran can also simply write and submit a written statement to VA for inclusion in the record, as neither of the above forms are technically necessary for submitting lay statements to VA.

2. Request Your C-File From VA

Second, veterans should request their claims file — often called a C-file — to confirm what VA actually has on record. This will include the exam report and what the examiner noted during the veteran’s C&P exam.

A veteran can request this file using VA Form 20-10206, which VA recommends submitting electronically through its personal records request portal. Veterans should note, however, that it may take several months to actually receive the complete C-file.

In the video below, VA-Accredited Claims Advocate Brandon Paiva covers tips on writing quality lay statements for VA disability claims:

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3. Carefully Review Your Exam Reports

Third, veterans should read the exam report carefully to see if the C&P examiner ever directly addresses information contained within their lay statement.

“Look for any mention of specifics from your lay statements, including the onset of symptoms, continuity of symptoms, or in-service events,” says Maura Black. “If the examiner just lists records reviewed and skips your own lay account, that’s a potential Miller problem.”

4. Submit a Written Statement to VA

Fourth, if the examiner appears to have ignored a lay statement, veterans should submit a written statement to VA pointing out the issue and how it may make the exam legally inadequate.

“Raise the examiner’s apparent oversight in writing, like in an appeal or supplemental claim,” says Maura Black. “Remember to cite Miller, identify the overlooked statement, and ask for a new exam that considers the statement.”

5. Cite Other Relevant Court Cases and Legal Authority

Fifth, veterans can pair Miller with other relevant court cases like Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); and Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) to enhance their argument:

• In Buchanan v. Nicholson, the Court ruled that lay evidence may not be rejected solely for lack of contemporaneous medical records.
• In Stefl v. Nicholson, the CAVC ruled that a C&P examiner must provide sufficient detail and analysis in their medical opinion so the BVA can successfully evaluate that opinion against the other evidence in the case.
• In Nieves-Rodriguez v. Peake, the Court built upon the past ruling in Stefl to require that an examiner’s medical opinion be factually accurate, fully explained, and soundly reasoned to have real value in regard to a claim.

There are also relevant statutes and regulations, such as:

• 38 USC § 5103A – duty to assist claimants
• 38 CFR § 3.159(c)(4) — duty to provide an exam
• 38 CFR § 4.2 — inadequate exam must be returned

Did VA Ignore Your Lay Statement? CCK May Be Able to Help

Frequently Asked Questions

Does VA have to consider a lay statement if there was no C&P exam?

Yes, VA’s obligation to consider lay evidence is not limited to C&P exams. Raters and the Board of Veterans’ Appeals (BVA) must also weigh competent and credible lay statements when deciding a claim, whether or not VA ordered an examination.

Can a lay statement alone establish service connection?

Sometimes. A lay statement for VA can establish an in-service event or an observable symptom on its own. However, a current diagnosis or a medical nexus opinion linking the condition to service typically still requires a medical professional’s opinion.

What if the Board found me not credible instead of addressing Miller?

If the Board makes an explicit credibility finding, Miller v. Wilkie may not apply in the same way, since its remedy is tied to cases where credibility was never addressed. Veterans in this situation should consider discussing their options with a VA-accredited representative.

How long does it take to get a new VA exam after citing Miller?

There is no set VA timeline. Processing depends on the type of appeal used to raise the issue, whether a Supplemental Claim, Higher-Level Review, or BVA appeal, and on VA’s current workload. However, veterans should expect the entire process of requesting a C-file to having a new exam ordered to take several months at the very least.

Do I need an attorney to raise a Miller v. Wilkie argument?

No, veterans are not required to have an attorney to challenge an inadequate exam. However, identifying an overlooked lay statement and citing the correct legal authority can be complex, and for this reason, many veterans choose to work with an accredited representative.