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April 9, 2009

Lay evidence, competent, probative, Layno v. Brown, No. 92-353

Filed under: competent, lay evidence, Layno v. Brown, No. 92-353, probative — veteranclaims @ 2:06 am

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In instances such as this case presenting the question as to what
testimony is competent, this Court has held that lay witnesses are
competent to provide testimony that may be sufficient to substantiate a
claim of service connection for an injury. Horowitz v. Brown, 5 Vet.App.
217, 221-22 (1993); Ascherl v. Brown, 4 Vet.App. 371, 376 (1993); Rhodes
v. Brown, 4 Vet.App. 124, 126-27 (1993); Cuevas v. Principi, 3 Vet.App.
543, 547-48 (1992); Culver v. Derwinski, 3 Vet.App. 292, 297-98 (1992);
Cartright, 2 Vet.App. at 25; see also 38 C.F.R. ù 3.303(a) (1993). Lay
evidence, then, may provide sufficient support for a claim of service
connection, and it is error for the Board to require medical evidence to
support that lay evidence. Horowitz, 5 Vet.App. at 221-22; Ascherl, 4
Vet.App. at 376; Rhodes, 4 Vet.App. at 126-27; Cuevas, 3 Vet.App. at 547-
48; Culver, 3 Vet.App. at 297-98; Cartright, 2 Vet.App. at 25; see also
38 C.F.R. ù 3.303(a).

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Where this Court has deemed lay testimony competent, the witness has
testified to the symptoms or facts that he observed. See, e.g., Horowitz,
5 Vet.App. at 221-22; Ascherl, 4 Vet.App. at 376; Rhodes, 4 Vet.App. at
126-27; Cuevas, 3 Vet.App. at 547-48; Culver, 3 Vet.App. at 297-98;
Cartright, 2 Vet.App. at 25. Competent testimony is thus limited to that
which the witness has actually observed, and is within the realm of his
personal knowledge. See Cartright, 2 Vet.App. at 25.

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As a general matter, in order for any testimony to be probative of
any fact, the witness must be competent to testify as to the facts under
consideration. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Fed. R. Evid. 601. First, a witness must have personal knowledge in order to be competent to testify to a matter. Fed. R. Evid. 602; Jaroslawicz v. Seedman, 528 F.2d 727, 732 (2d Cir. 1975) (witness not competent to testify about event at which he was not present). Personal knowledge is that which comes to the witness through the use of his senses–that which is heard, felt, seen, smelled, or tasted. United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976) (witnesses may testify “upon concrete facts within their own observation and recollection–that is, facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts”), cert. denied, 429 U.S. 1100 (1977).

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Ms. Magbual and Ms. Gampong each testified that they agreed with the
appellant’s statement that he suffered from bronchial asthma upon return
from the service. This lay testimony constitutes testimony that the
appellant had a particular injury or illness. It is not testimony about
the symptoms or features that the appellant exhibited upon return from
service, and thus must be excluded as incompetent testimony.

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U.S. Court of Appeals for Veterans Claims
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. 92-353
LAYNO.353
Search Terms: LAYNO UNITED STATES COURT OF VETERANS APPEALS

No. 92-353

Benito C. Layno, Appellant,

v.

Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided May 27, 1994 )

Benito C. Layno, pro se.

Mary Lou Keener, General Counsel, Norman G. Cooper, Assistant General
Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Elizabeth
Milgram were on the brief for the appellee.

Before NEBEKER, Chief Judge, and MANKIN and STEINBERG, Judges.
MANKIN, Judge, filed the opinion of the Court, in which NEBEKER, Chief
Judge, joined. STEINBERG, Judge, filed a separate opinion concurring in
part and dissenting in part.

MANKIN, Judge: Benito C. Previous HitLaynoNext Document (appellant) appeals a February 14,
1992, decision of the Board of Veterans’ Appeals (BVA or Board) finding
that the appellant did not establish service connection for bronchial
asthma. The appellant claims the BVA erred in determining that he did not
present sufficient credible evidence to establish service connection.
However, we hold that the Board erred in finding that the appellant’s
claim was well grounded and therefore vacate the February 14, 1992,
decision of the Board.

I. Factual Background
The appellant served on active duty from July 1946 to March 9, 1949.
He claimed that he incurred bronchial asthma during that time, and
therefore sought service connection for the injury. Having been denied by
the Regional Office (RO), the appellant appealed to the BVA. In its
February 14, 1992, decision, the Board made specific findings of fact
regarding whether the evidence was sufficient to grant the claim, and
whether the appellant’s witnesses were credible.
Regarding the appellant’s evidence in support of his claim for
service connection for bronchial asthma, the Board found that the
appellant had not presented sufficient credible evidence. The Board found
that the appellant’s service medical records had been destroyed in the
1973 fire at the National Personnel Records Center (NPRC). Accordingly,
the NPRC certified that the appellant had “fire-related service,” and
conducted a search of the morning and sick reports for the period
September 1948 through January 1949. The period searched by the NPRC was
that indicated by the appellant as pertinent to his claim. The search
revealed only one sick report entry for the appellant. This entry was
dated December 8, 1948, and indicated no diagnosis, but did note that the
appellant was returned for service the same day.
Additionally, the Board found that the evidence in support of the
appellant’s claim was slim. The appellant presented his own testimony as
to the onset and diagnosis of bronchial asthma prior to his discharge on
March 9, 1949. Specifically, the appellant testified in September 1991,
more than forty years after the fact, that “[i]t was on or about March 8,
1949 [the day before the appellant’s discharge], that the first
manifestations of my asthma was [sic] shown.” He also testified as to the
exact date, January 15, 1950, when he began treatment for bronchial asthma
by a private physician.
He also proffered a written statement from his private physician,
Amador Corpuz, M.D., that he had been treated for “recurrent bronchial
asthma” from January 15, 1950, to March 30, 1955. An additional written
statement from the appellant’s doctor indicated that the appellant’s
treatment records from October 1, 1953, to December 7, 1986, were
available, but that earlier records “must have been misplaced, lost or
destroyed due to the
length of time that have [sic] elapsed since 1950.” The appellant
presented copies of treatment records for the period October 1953 to
December 7, 1986, in support of his claim.
The appellant also presented the joint sworn affidavit of Euletrio
Laeno and Silvestre Madalipay, stating they had personal knowledge of the
appellant’s bronchial asthma “since early March 1949,” its onset, and
treatment by Dr. Corpuz “from January 15, 1950 up to March 30, 1955.” The
affiants stated they had this personal knowledge because they had the
opportunity to observe the appellant on a regular basis. The affiants did
not testify as to their particular observations regarding the appellant’s
symptoms or conditions, only that they had personal knowledge of the
appellant’s bronchial asthma. The affiants also stated that they had
personal knowledge of the appellant’s treatment by Dr. Corpuz because they
had been invited to accompany the appellant when he went for treatment.
The affiants did not state whether they had actually accompanied the
appellant to his appointments with Dr. Corpuz.
The Board also reviewed the live testimony of Silvestre Madalipay,
Cecilia Magbual, and Alejandra Gampong on behalf of the appellant at an RO
hearing in September 1991. Mr. Madalipay testified that he knew the
appellant and had the opportunity to observe him. Mr. Madalipay stated
that the appellant had difficulty breathing “after his arrival at our
place,” and that this was not consistent with the appellant’s preservice
condition. Ms. Magbual testified that she also knew the appellant, and
had the opportunity to observe him “after he arrived from Okinawa.” She
noted that his condition was “very bad.” Finally, Ms. Gampong testified
that she too knew the appellant, and stated that upon his return from
service, the appellant “started complaining about his asthma.”
Finally, the Board noted that the appellant stated that he had been
treated three times in service for bronchial asthma through sick calls.
However, the Board found no support for such treatment in the appellant’s
service medical records. The Board also found no documentary evidence to
support the appellant’s claim of private treatment after discharge but
prior to 1953.
The Board additionally found inconsistencies in the evidence
presented by the appellant. The Board found it contradictory that the
appellant initially stated he had been treated for bronchial asthma from
September 1948 to January 1949, but later claimed to
have had bronchial asthma on or about March 8, 1949, one day before his
discharge. Based upon the time that had passed between the initial
observation and time of testimony, the Board found it “extremely suspect
that 4 people remember the exact same date that the appellant began
receiving treatment for bronchial asthma almost 40 years ago, and remember
with such specificity his condition immediately following service.”
Consequently, the Board concluded that due to the inconsistencies in the
record, “The best conclusion . . . is that bronchial asthma was not
incurred [in] or aggravated by service.” This appeal followed.

II. Analysis
The Secretary first contends that this Court need not address any of
the issues regarding the Board’s analysis of the evidence because the
appellant’s claim is not well grounded. The Secretary argues that the
determinative issue in the appellant’s claim is medical causation or
diagnosis, and relies upon Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993),
for the proposition that lay assertion of medical causation or diagnosis
is insufficient to render a claim well grounded. A claim is well grounded
where it is plausible or capable of substantiation. Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). The quality and quantity of evidence required
to satisfy this statutory burden will depend upon the nature of the claim
. Grottveit, 5 Vet.App. at 93.
In the present case, the appellant is seeking service connection for
bronchial asthma. He has “the burden of submitting evidence sufficient to
justify a belief that the claim is well grounded . . . .” Id. at 92.
More than just an allegation is required to present a well-grounded claim;
a claimant must submit evidence that will “justify a belief by a fair and
impartial individual that the claim is plausible.” Tirpak v. Derwinski, 2
Vet.App. 609, 611 (1992). We will therefore conduct a de novo review of
the Board’s legal determination that the appellant has presented
sufficient evidence capable of substantiating a belief that the claim is
well grounded. See Grottveit, 5 Vet.App. 91.
As a general matter, in order for any testimony to be probative of
any fact, the witness must be competent to testify as to the facts under
consideration. See Espiritu v.
Derwinski, 2 Vet.App. 492 (1992); Fed. R. Evid. 601. First, a witness
must have personal knowledge in order to be competent to testify to a
matter. Fed. R. Evid. 602; Jaroslawicz v. Seedman, 528 F.2d 727, 732 (
2d Cir. 1975) (witness not competent to testify about event at which he
was not present). Personal knowledge is that which comes to the witness
through the use of his senses–that which is heard, felt, seen, smelled,
or tasted. United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976) (
witnesses may testify “upon concrete facts within their own observation
and recollection–that is, facts perceived from their own senses, as
distinguished from their opinions or conclusions drawn from such facts”),
cert. denied, 429 U.S. 1100 (1977).
Competency, however, must be
distinguished from weight and credibility. The former is a legal concept
determining whether testimony may be heard and considered by the trier of
fact, while the latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been admitted.
Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) (“Although interest may
affect the credibility of testimony, it does not affect competency to
testify.”); Mason v. United States, 402 F.2d 732, 738 (8th Cir. 1968) (“
While the opportunity of . . . [the] witnesses to observe . . . was
relatively brief, this factor goes to the weight of the evidence, not to
its admissibility.”), cert. denied, 394 U.S. 950 (1969).
In instances such as this case presenting the question as to what
testimony is competent, this Court has held that lay witnesses are
competent to provide testimony that may be sufficient to substantiate a
claim of service connection for an injury. Horowitz v. Brown, 5 Vet.App.
217, 221-22 (1993); Ascherl v. Brown, 4 Vet.App. 371, 376 (1993); Rhodes
v. Brown, 4 Vet.App. 124, 126-27 (1993); Cuevas v. Principi, 3 Vet.App.
543, 547-48 (1992); Culver v. Derwinski, 3 Vet.App. 292, 297-98 (1992);
Cartright, 2 Vet.App. at 25; see also 38 C.F.R. ù 3.303(a) (1993). Lay
evidence, then, may provide sufficient support for a claim of service
connection, and it is error for the Board to require medical evidence to
support that lay evidence. Horowitz, 5 Vet.App. at 221-22; Ascherl, 4
Vet.App. at 376; Rhodes, 4 Vet.App. at 126-27; Cuevas, 3 Vet.App. at 547-
48; Culver, 3 Vet.App. at 297-98; Cartright, 2 Vet.App. at 25; see also
38 C.F.R. ù 3.303(a).
In fact, where, as here, the claimant’s service
medical records have been destroyed or lost, the Board is under a duty to
advise the claimant to obtain other forms of evidence, such as lay testimony.
Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992); Garlejo v. Derwinski, 2
Vet.App. 619, 620 (1992). The record clearly indicates that the
appellant’s service records were destroyed, but it does not appear that
the appellant was advised to provide alternate forms of evidence. This
error, however, is not prejudicial to the appellant since he has, of his
own accord, provided lay testimony and other forms of evidence to provide
support for his claim. See 38 U.S.C. ù 7261(b).
Where this Court has deemed lay testimony competent, the witness has
testified to the symptoms or facts that he observed. See, e.g., Horowitz,
5 Vet.App. at 221-22; Ascherl, 4 Vet.App. at 376; Rhodes, 4 Vet.App. at
126-27; Cuevas, 3 Vet.App. at 547-48; Culver, 3 Vet.App. at 297-98;
Cartright, 2 Vet.App. at 25. Competent testimony is thus limited to that
which the witness has actually observed, and is within the realm of his
personal knowledge. See Cartright, 2 Vet.App. at 25.
Thus, each witness
in the present case, Mr. Laeno, Mr. Madalipay, Ms. Magbual, and Ms.
Gampong, having testified that they personally know the appellant and
having had the opportunity to observe him, are generally competent to
testify as to their observations regarding his claim for service
connection. See Jaroslawicz, 528 F.2d at 732.
Lay witness competency, however, is not unlimited, and the fact that
a lay witness may personally know the veteran and may have had the
opportunity to observe him does not render his testimony universally
competent. Generally, lay testimony is not competent to prove that which
would require specialized knowledge or training. Fed. R. Evid. 601, 602,
701, 702; Espiritu, 2 Vet.App. at 494-95; see also Visser v. Packer
Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir. 1991) (lay
assertion cannot be “flights of fancy, speculations, hunches, intuitions,
or rumors about matters remote from [the witness’s] experience;” witness
not competent to describe motive because testimony too much like
psychoanalysis, for which witness not qualified). Specifically, this
Court has held that lay testimony is not competent to prove a matter
requiring medical expertise. Fluker v. Brown, 5 Vet.App. 296, 299 (1993);
Moray v. Brown, 5 Vet.App. 211, 214 (1993); Cox v. Brown, 5 Vet.App. 93,
95 (1993); Grottveit, 5 Vet.App. at 92-93; Clarkson v. Brown,
4 Vet.App. 565, 567 (1993). Thus, “lay assertions of medical causation
cannot constitute evidence to render a claim well grounded . . . .”
Grottveit, 5 Vet.App. at 93.
The appellant, Mr. Laeno, and Mr. Madalipay all testified that the
appellant suffered from bronchial asthma upon return from service. Ms.
Magbual and Ms. Gampong each testified that they agreed with the
appellant’s statement that he suffered from bronchial asthma upon return
from the service. This lay testimony constitutes testimony that the
appellant had a particular injury or illness. It is not testimony about
the symptoms or features that the appellant exhibited upon return from
service, and thus must be excluded as incompetent testimony.
It was
therefore error for the Board to consider this lay testimony, as it should
have properly been excluded. However, this error is harmless as it
resulted in consideration of additional testimony supporting the
appellant’s claim.
Lay testimony is competent only when it regards the features or
symptoms of an injury or illness. Horowitz, 5 Vet.App. at 221-22; Culver,
3 Vet.App. at 297-99; Budnik v. Derwinski, 3 Vet.App. 185, 186-87 (1992);
Mohr v. Derwinski, 3 Vet.App. 63, 65 (1992); Fisher v. Derwinski, 2 Vet.
App. 406, 408 (1992). A lay witness may testify as to his or her
observations of the features or symptoms that a claimant exhibited.
Horowitz, 5 Vet.App. at 221-22. Thus, for example, this testimony is
competent to prove that a claimant exhibited certain features or symptoms
of an injury or illness during service, or that the claimant did not
exhibit certain features or symptoms before service that are present after
service, or that the claimant exhibited certain features or symptoms at a
particular point in time following service. Id. It bears repeating that
this type of testimony is competent only so long as it remains centered
upon matters within the knowledge and personal observations of the witness
. Should the testimony stray from this basic principle and begin to
address, for example, medical causation, that portion of the testimony
addressing the issue of medical causation is not competent.
The record shows that the appellant testified:

It was on or about March 8, 1949 that the first manifestations of my
asthma was shown. I observed it and I consulted the B 37 Station
Hospital because we were then at the Camp Filipinas in Okinawa and
they only gave me a tablet to take for the relief of my asthma and that was the time we were sent home.

The appellant provided no testimony or other evidence regarding any
symptoms or features of an illness that he exhibited. Although the
veteran testified under oath that on the day prior to his discharge he was
given “a tablet to take for the relief of my asthma,” his testimony does
not reveal whether the basis for his statement was something told to him
by a medical professional or was, instead, his own belief that the tablet
was to treat his asthma. Thus, under Espiritu, 2 Vet.App. at 494-95, the
appellant’s testimony is competent only insofar as it states that he was
given a tablet, and incompetent to prove that he had or was diagnosed with
asthma.
Similarly, Mr. Laeno and Mr. Madalipay testified in an affidavit that
the appellant had bronchial asthma, and that the appellant was treated for
the condition. Regarding the appellant’s treatment, Messrs. Laeno and
Madalipay testified that they knew of the treatment because they had been
invited to accompany the appellant to the Corpuz clinic. The affiants did
not testify that they did in fact accompany the appellant and observe the
treatment. Plainly, the affiants’ testimony that the appellant had
bronchial asthma must be excluded as incompetent. Id. Furthermore,
their testimony that the appellant had in fact been treated for bronchial
asthma must also be excluded because it lacks personal knowledge. Since
they did not personally observe the treatment, they have no personal
knowledge that the appellant was in fact treated. Accordingly, the
substance of the affidavit must be excluded.
At the oral hearing, Mr. Madalipay also testified that the appellant
had bronchial asthma. For the reasons previously stated, this must be
excluded as incompetent. Mr. Madalipay further testified that “[a]fter
his arrival at our place [following service] he had difficulty in
breathing and I suspect that was asthma and that he was not the way he
used to be. He was very healthy then before his entry into the service.”
This testimony is competent to show that the appellant had difficulty
breathing following service, and that he was healthy prior to service.
The testimony is competent because it is a recitation of information of a
type which the witness is qualified to give and which is within his
personal knowledge. Id.
At the same hearing, Ms. Magbual testified that the appellant’s
condition directly following service was very “bad.” For the reasons
previously noted, this testimony is competent to show that the appellant
was not healthy following service. Id.
Finally, Ms. Gampong testified that upon his return from service, the
appellant “started complaining about his asthma.” While the evidence is
not competent to show that the appellant did in fact have asthma, it is
nonetheless competent for the limited purpose of showing that he began
complaining of what he called asthma upon his return from service.
The Court therefore holds that to the extent the testimony was
considered for probative purposes other than those outlined above, the
Board committed error. However, since the error resulted in greater
consideration of the appellant’s claim, it was harmless. See 38 U.S.C. ù
7261(b). Thus, the only evidence the appellant has presented in support
of his claim is that he was healthy prior to service and that he had
difficulty breathing following service, that his condition following
service was very “bad,” and that he began complaining of what he called
asthma upon his return from service. The appellant, however, has
presented no evidence showing that he incurred asthma during service.
Simply, the appellant has presented no evidence relating his current
condition to his military service. “Just as the BVA must point to a
medical basis other than its own unsubstantiated opinion, . . . [the]
appellant cannot meet his initial burden by relying upon his own . . . or
his [friends’] . . . opinions as to medical matters.” Grottveit, 5 Vet.
App. at 93 (citations omitted). Therefore, notwithstanding the Board’s
determination to the contrary, the appellant’s claim for service
connection for bronchial asthma is not well grounded.

III. Conclusion
Upon consideration of the record, the appellant’s informal brief, and
the Secretary’s brief, the appellant has not presented a claim on which,
in contemplation of law, relief could be granted. Id. Accordingly,
there was no claim to adjudicate on the merits, and the RO and Board
erred in not initially denying the claim as lacking a well-grounded basis.
Id.
Therefore, the February 14, 1992, decision of the Board of Veterans’
Appeals is VACATED and REMANDED with instructions to vacate the RO
decision.

STEINBERG, Judge, concurring in part and dissenting in part: I
concur in the result that the bronchial-asthma claim was not well grounded
. However, for the reasons stated separately in Green (John H.) v. Brown,
5 Vet.App. 83, 85-87 (1993) (per curiam order) (Kramer and Steinberg, JJ.,
dissenting separately and jointly to denial of en banc review), I would
not here vacate the February 14, 1992, Board of Veterans Appeals’ (BVA or
Board) decision. Because there are currently two parallel lines of Court
precedent as to the correct remedy for the Court to employ when confronted
with a case in which a claim was improperly not found not well grounded by
the Board or was improperly reopened by the Board,[ Compare Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992) (affirming); Thompson (Charles) v.
Derwinski, 1 Vet.App. 251, 254 (1991) (affirming), with Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993) (vacating); McGinnis v. Brown, 4 Vet.App.
239, 244 (1993) (vacating). ] I would here affirm on the basis that even
though the Board should not have reached the merits on the bronchial-
asthma claim its having done so was not an error prejudicial to the
appellant under 38 U.S.C. ù 7261(b).[ See Green v. Brown, 4 Vet.App.
382, 384 (1993) (Steinberg, J., dissenting); McGinnis, 4 Vet.App. at 244-
47 (Steinberg, J., concurring in part and dissenting in part) (citing, at
page 245, 16 cases affirming on the basis of non-prejudicial error).]
In addition to the concerns stated in the Green dissents about the
vacating approach employed by the majority here, that approach appears to
present the possibility of disparate results for identically situated VA
claimants and, therefore, to produce inequities in the VA adjudication
process. In the instant case, the majority vacates the February 1992 BVA
decision. That means that there will have been no prior determination of
that claim,[ The majority opinion directs the Board to direct the VA
regional office (RO) to vacate its April 1991 decision, which also failed
to find the bronchial-asthma claim not well grounded.] and the next time
the claimant advances that same claim, even if there is no additional
evidence, it would be an original claim and not a claim to reopen.
Contrast that result with a case with identical facts where the Court
affirms the BVA decision that the claim was not well grounded (as was
done, for example, in Selley v. Brown, 6 Vet.App. 196, 199 (1994)), or
where the Court affirms the BVA decision on the merits as nonprejudicial
error, as I would do here. In that situation, the claimant would, as I
read current caselaw, apparently have to produce new and material
evidence to reopen the claim.[ The McGinnis vacating approach as to
claims which the Board incorrectly reopened may present similar
possibilities of disparate treatment among similarly situated VA claimants
in terms of whether a VA claimant seeking to reopen a finally disallowed
claim, on the basis of “new and material evidence”, could use as “new”
evidence all the evidence secured since the last merits disallowance,
including evidence considered and specifically found not to be new and
material in an otherwise unreviewable RO or BVA final decision in the
interim as part of one or more unsuccessful attempts to reopen. See
McGinnis v. Brown, 4 Vet.App. 239, 244 (1992); 38 U.S.C. ùù 7104(b),
7105(c), 5108; Suttmann v. Brown, 5 Vet.App. 127, 135-36 (1993) (applying
to claims finally denied by RO under section 7105(c) the section 5108
provisions for the reopening, on the basis of new and material evidence,
of claims finally denied by BVA). No case has yet so held although the
opportunity has been present for the Court to do so. See Person v. Brown,
5 Vet.App. 449 (1993); Smith (Albert) v. Derwinski, 3 Vet.App. 205 (1992);
Merritt v. Brown, U.S. Vet. App. No. 92-798 (Nov. 30, 1993) (mem. decision
).]
Under Grottveit, supra, the Court, in vacating where the BVA had
incorrectly found a claim well grounded, stated its purpose to “allow
appellant to begin, if he can, on a clean slate” — that is, without the
need for “new and material evidence [that] would [otherwise] be needed
for reopening the claim” should it be brought again. Grottveit, 5 Vet.App.
at 93. In Grivois v. Brown, 6 Vet.App. 136, 139 (1994), the Court
recently cautioned: “[I]mplausible claims should not consume the limited
resources of the VA and force into even greater backlog and delay those
claims which — as well grounded — require adjudication.” One wonders
whether this Court does not have a concomitant duty to avoid imposing new
adjudication rules and steps that would seem likely to produce greater
confusion and delay in a VA adjudication system that is currently
experiencing exponential growth in backlog and decision time. See 1993
Rep. of the Chairman of the BVA,
pt. 2, at 33.[ The Chairman of the BVA is required to file an annual
report pursuant to 38 U.S.C. ù 7101(d), which provides in part that “[a]
fter the end of each fiscal year, the Chairman shall prepare a report on
the activities of the Board during that fiscal year and the projected
activities of the Board for the fiscal year during which the report is
prepared and the next fiscal year.” According to the latest report as to
BVA adjudications:

Response time (the projected number of days it would take the Board
to decide a pending appeal) increased from 130 days in F[iscal] Y[ear]
1991 to 240 days in FY 1992. In FY 1993, that figure reached an all-
time high of 466 days.

Without any significant changes in the situation, based on current
data, it is projected that BVA’s average response time will be 725
days, essentially two years, in FY 1994 and 945 days, or two years
and seven and one half months, in FY 1995.

1993 Rep. of the Chairman of the BVA, pt. 2, at 33. More recently, the
Chairman of the Senate Veterans’ Affairs Committee, Senator Rockefeller,
stated: “Based on information in the first quarter of fiscal year 1994,
the BVA currently estimates that by the end of this fiscal year, that time [
the 466 days for decision time] will increase to 1,843 days — 5 years.”
140 Cong. Rec. S2504 (daily ed. Mar. 8, 1994) (statement of Sen.
Rockefeller).] I do not understand the basis for rewarding with a
Grottveit “clean slate” a VA claimant who has imposed on the already
overburdened VA adjudication system a frivolous claim. See Black’s Law
Dictionary 668, 843 (6th ed. 1990) (defining “frivolous action” as “[g]
roundless lawsuit with little prospect of success”).
On May 10, 1994, the Court entered an order consolidating Edenfield v.
Brown, No. 92-1263, and Smith (George) v. Brown, No. 92-1369, and
inviting supplemental and amicus memoranda on, inter alia, the question of
the proper remedy with respect to cases in which the BVA had incorrectly
determined that a claim was well grounded or that new and material
evidence for purposes of reopening had been secured. Perhaps the
resolution of those cases will provide satisfactory answers to the
question posed in that May 10 order, this opinion, and the Green dissents
. Since I continue to have serious reservations about the vacating remedy,
I am unable to concur in its application by the Court here. Also, while
agreeing that the claim was not well grounded, I do not join in the
lengthy rules-of-evidence essay attempting to amplify the Court’s
altogether satisfactory analysis and holding in Espiritu v. Derwinski, 2
Vet.App. 492, 494-95 (1992), as to the competency of lay testimony
depending on the purpose for which such testimony is presented.

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