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April 9, 2009

lay evidence, unless sufficiently rebutted, may serve to place the evidence in equipoise, Cartright v. Derwinski, No. 90-28

Filed under: Cartwright v. Derwinski, equipose, lay evidence — veteranclaims @ 2:41 am

“Appellant’s sworn statement, then, unless sufficiently rebutted, may serve to place the evidence in equipoise.”

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U.S. Court of Appeals for Veterans Claims
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. 90-28

No. 90-28

Clyde A. Cartright, Jr., Appellant,


Edward J. Derwinski,
Secretary Of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Submitted September 7, 1990 Decided December 17, 1991)

Rick Surratt (non-attorney practitioner) and Edward R. Heath, Sr.,
were on the brief for appellant.

Raoul L. Carroll, then General Counsel, Barry M. Tapp, Assistant
General Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and
Carolyn F. Washington were on the brief for appellee.

Before NEBEKER, Chief Judge, and KRAMER and IVERS, Associate Judges.

NEBEKER, Chief Judge: Appellant, Clyde A. Cartright, Jr., seeks
review of a September 28, 1989, Board of Veterans’ Appeals (BVA or Board)
decision which denied his reopened claim for service-connected asthma. We
hold that, by indiscriminately rejecting material evidence, the Board
committed error which requires remand. We also note that absent this
error, the case would still require remand since the Board did not provide
an adequate statement of reasons or bases to support its factual findings.
Appellant served in the armed services from August 1943 to March 1946
. In December 1945, he was hospitalized with acute bronchial asthma. R.
at 1. His separation examination, dated March 15, 1946, revealed no lung
or chest abnormalities, but noted that he had asthma since November 1945
and surmised that it would result in a disability. R. at 7. A month
after discharge, he applied for compensation for his asthma, but a
Administration (now Department of Veterans Affairs) (VA) Regional Office (
RO) denied service connection on April 13, 1946.
On March 9, 1988, appellant submitted letters from Dr. Jesus Suero,
his treating physician since 1983, and Leland J. Griffith, his roommate
from 1941 through 1943. Dr. Suero stated that appellant suffered from
asthmatic bronchitis when he began treating him in 1983. Mr. Griffith,
who lived with appellant before the war, maintained that appellant did not
suffer from asthma or other respiratory illness between 1941 and 1943. Mr.
Griffith further claimed that he has visited appellant at least once a
year since 1946 and that appellant has suffered from an asthmatic
condition since that time. Appellant also submitted a number of private
physician and private outpatient clinic records for the period 1960 to
1983. On March 29, 1988, the VA issued a rating determination which
denied appellant service connection for asthma. The Board affirmed
that decision on September 28, 1989. Appellant filed a timely notice of
appeal with this Court.
In its decision, the Board wrote, “[t]he veteran’s contention that he
was treated continuously for asthma from 1946 to 1962 is not sufficient to
establish that which has not been clinically documented.” We surmise from
this statement that the Board believes that lay evidence alone cannot
prove service connection, but that service connection can only be
established through medical records. This constitutes error. Nowhere do
VA regulations provide that a veteran must establish service connection
through medical records alone:

Service connection . . . means that the facts, shown by
evidence, establish that a particular injury or disease
resulting in disability was incurred coincident with service in
the Armed Forces, or if preexisting such service, was
aggravated therein. . . . Determinations as to service
connection will be based on review of the entire evidence of
record . . .

38 C.F.R. ù 3.303(a) (1991) (emphasis added). See 38 U.S.C. ù 1154(a) (
formerly ù 354(a)). The Secretary cannot ignore appellant’s testimony
simply because appellant is an interested party. See Hatlestad v.
Derwinski, U.S. Vet. App. No. 90-103, slip op. at 10, 12 (Mar. 6, 1991) (
BVA cannot treat a veteran’s sworn testimony only as a part of his
contentions; it must account for and explain its reasons for rejecting the
testimony). At common law, a party was generally not considered a
competent witness; this is no longer
true. Interest in the outcome of a proceeding has long since ceased to
be a basis upon which to disqualify witnesses. Although interest may
affect the credibility of testimony, it does not affect competency to
testify. Dixie Ohio Express Co. v. Lowery, 115 F.2d 56, 57 (5th Cir.
1940). In Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 5 (
Oct. 12, 1990), we wrote “when a veteran seeks benefits and the evidence
is in relative equipoise, the law dictates that the veteran prevails.”
See 38 C.F.R. ù 3.303(d) (1991). Appellant’s sworn statement, then,
unless sufficiently rebutted, may serve to place the evidence in equipoise.

This Court’s function is not to make factual determinations, but to
decide whether the BVA’s factual determinations constitute clear error.
Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 5 (Oct. 12,
1990). Such a determination, however, requires a decisional document
which allows for effective judicial review. Consequently, the BVA is
required, under 38 U.S.C. ù 7104(d)(1) (formerly ù 4004), to articulate
reasons or bases for its decision. The BVA decision at hand contains
neither an analysis of the credibility or probative value of the evidence
submitted by the veteran, nor a statement of the reasons or bases for the
Board’s implicit rejection of this evidence and its conclusion that the
doctrine of reasonable doubt was inapplicable. Appellant has never been
provided with a satisfactory explanation by the BVA as to why it did not
find his sworn testimony credible, especially why, under “the benefit of
the doubt” rule in 38 U.S.C. ù 5107(b) (formerly ù 3007), the evidence
was not at least in relative equipoise, in which case “the law dictates
that [the claimant] prevails”. Gilbert, slip op. at 8. The Board
should have weighed and considered appellant’s testimonial evidence and
decided whether his testimony was credible.
Accordingly, the decision of the BVA is REVERSED and the matter is
REMANDED pursuant to 38 U.S.C. ù 7252(a) (formerly ù 4052(a)). The BVA
is directed to comply promptly with the requirement of 38 U.S.C. ù 7104(d)(
1) (formerly ù 4004(d)(1)) that its findings and conclusions be
accompanied by “reasons or bases” adequate to explain to the veteran and,
if review is sought, to this Court, its factual findings, and its
conclusion that the veteran is not entitled to “benefit of the doubt”
under 38 C.F.R. ù 3.102.

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