Veteranclaims’s Blog

October 24, 2009

Lay Evidence, Continuity of Symptomatology, 3.303, Savage v. Gober

Continuing with our lay evidence series we came across this recent Veterans Court Memorandum decision by, Judge Schoelen. We are presenting this decision because of the way in which Judge Schoelen addressed the issues of lay evidence and continuity of symptomatology provision of § 3.303(b), citing to Savage v. Gober, 10 Vet.App. 488, 497 (1997).

We also recommend, as always, if at all possible seek out and retain an attorney to help with your claim[s].

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“This Court has also found that if the continuity of symptomatology provision of § 3.303(b) requires that there be medical-nexus evidence relating the veteran’s present disability to service . . . , the continuity of symptomatology provision would simply be a nullity. Thus, the Court holds that no such medical-nexus evidence is required. Nevertheless, because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence . . . is required to demonstrate such a relationship, unless such a relationship is one as to which a lay person’s observation is competent. Savage v. Gober, 10 Vet.App. 488, 497 (1997) (emphasis added).”
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U.S. Court of Appeals for Veterans Claims
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-105
CHARLES A. RODGERS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The pro se appellant, Charles A. Rodgers, appeals a
December 21, 2007, Board of Veterans’ Appeals (Board) decision that determined that new
and material evidence had not been received to reopen a finally disallowed claim for entitlement
to service connection for peptic ulcer disease with duodenal ulcer. Record (R.) at 1-7. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§7252(a) and 7266(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision, and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served honorablyin the U.S. Armyfrom December 10, 1965, to
December 14, 1967. R. at 11. The appellant’s service from December 15, 1967, to October
15, 1969, was determined to be under other than honorable conditions, thus precludinghim
fromentitlementto VA benefits based on that period of service. R. at 172-73, 176.
A March 1966 service medical record (SMR) reported that the appellant was
seen for “post-prandial [abdominal] cramps” that he complained to have experienced for
two weeks. R. at 55. The

SMR also indicated that the appellant had pain in his “lower abdomen.” Id.
A March 1967 medical report, which noted that the purpose of the examination was to “replace
lost health record[s],” did not reveal any abdominal complaints. R. at 29. Postservice medical records show that the appellant was seen in 1971 for epigastric pain (R. at 666); that he returned to work after being treated for a bleeding peptic ulcer in 1974 (R. at 492); and that he was treated for a duodenal ulcer with upper gastrointestinal bleeding in April 1984 (R. at 200). The Board denied service connection for peptic ulcer disease in March 1985. R. at 226-30. Since that time, the appellant’s attempts to reopen his claim have been unsuccessful. See R. at 324-28, 432, 590-95, 716-25, 741-51, 873-75.
In support of his requests to reopen his claim, the appellant continued to
submit medical
records to VA to demonstrate his ongoing treatment for peptic ulcer
disease. R. at 273-74, 300, 334-
37, 428, 464, 668-94. In an October 1987 hearing, he testified that he
experienced pain “off and on”
for a year before being treated with antacids in service and that he
experienced symptoms “several
times a month” since his discharge from service. R. at 285. During this
hearing, the appellant’s
representativestatedthat”
itistheveteran’scontentionthatthesymptomsthatmanifestedthemselves
in service were probably signs of this peptic ulcer disease that went
undiagnosed.” R. at 286. VA
treatment records from April and May 2001 show additional diagnoses of
duodenal ulcer and
diverticular disease. R. at 669, 689. In October 2001, the appellant
underwent a VA medical
examination. R. at 701-02. The examiner stated that he only found one
entry in “the military
medical records concerning abdominal complaints” and that the “[s]
ymptomatology is not one
ordinarily associated with peptic ulcer disease.” R. at 701. The examiner
noted that the appellant
experienced”post-prandialabdominal cramps”while in service, not ”
epigastricdistress.”1
R.at702.
His diagnosis was “[p]eptic ulcer disease, status post bleed in April.” Id.
He reported that the
appellant “is symptom free at the present time” and that “the etiology of
the most recent episode in
April appears to be due to H. pylori.”2
Id.
1
“Postprandial pain” is “abdominal pain occurring after eating a meal.” The ”
epigastric region” is the “upper
middle region of the abdomen.” DORLAND’S ONLINE ILLUSTRATED MEDICAL
DICTIONARY (31st ed. 2007), available at
http:// www.dorlands.com/wsearch.jsp
H. pylori – or helicobacter pylori – is a species of bacteria “that
causes gastritis and pyloric ulcers.” Id.
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In an August 2003 decision, the Board found that new and material
evidence had not been
received and denied reopening the appellant’s claim. R. at 741-51. The
appellant requested that VA
reopen his claim again in June 2005, stating that he wanted “to establish
service connection for . . .
H. pylori.” R. at 769. The RO denied his request to reopen, and the
appellant perfected an appeal
to the Board. R. at 873-75, 880, 922-40, 951. In a December 2005
correspondence, the appellant
stated that he was enclosing a letter from his former wife who ”
experienced [his] sickness while
[they] were married,” and who “is now a nurse.” R. at 884. The appellant’s
former spouse wrote that
she and the appellant were married from June 1966 to 1979, during which
time the appellant had
“problems with his stomach” that were “so severe at times he couldn’t eat
or sleep.” R. at 949. The
appellant also submitted a written statement from his mother testifying
that her son had ongoing
stomach problems both during and after service, and that he “was
prescribed [antacids], but [was]
never tested for the cause of his stomach problem” until April 2001. R. at
911. A March 2007
informal conference report stated that the appellant asserted that “he has
upper abdominal pain,” and
that the doctor’s3
reference to “lower abdominal pain . . . is incorrect.” R. at 955.
In its December 21, 2007, decision on appeal, the Board found that “new
and material
evidence [had] not been received to reopen the [appellant’s] claim.” R. at
3-7. The Board discussed
the October 2001 VA medical opinion and noted that the subsequently
received evidence included
VA medical records from 2003 through July 2007 that indicated treatment
for abdominal cramping,
gastroesophageal reflux disease, chronic duodenal ulcer, diverticular
disability, indigestion, and
dyspepsia. R. at 6. The Board found that “none of the newly received
evidence contains a medical
opinion concerning the etiology of the veteran’s peptic ulcer disease with
duodenal ulcer.” R. at 7.
The Board also acknowledged that the appellant had submitted additional
lay statements from
himself, his mother, and his former spouse, but found that “they are
similar to statements previously
ofrecord inthat theyrelateto theveteran’s longstandingcontentionthat his
gastrointestinal problems
were present in service and have persisted ever since.” Id. The Board
found these statements to be
“insufficient to establish a reasonable possibility of substantiating the
claim because lay persons,
The report does not identify the doctor, but a review of the record
indicates that the only doctor to note the
upper-lower abdominal distinction was the October 2001 VA medical examiner.
See R. at 702.
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such as the veteran, his mother[,] and his former spouse, are not
competent to render a medical diagnosis or an opinion concerning medical causation.” Id.
In his informal brief, the appellant argues that the Board failed to
assess the credibility of his lay evidence before making its determination that new and material
evidence had not been received to reopen his claim. Appellant’s Br. at 1. In response to the question as to whether the Board applied the wrong law or regulation in making its decision, the appellant cites Sagainza v. Derwinski, 1 Vet.App. 575 (1991). Id. at 2. The appellant also asserts that the Board improperly based its decision on his “last period of service,” instead of on his “active period of service,” and that the Board should have “received another medical opinion.” Id.
TheSecretary argues that the Board considered the evidence submitted since the August
decision and “found [it] to be duplicative.” Secretary’s Br. at 9. With respect to the Board’s treatment of the appellant’s lay statements, the Secretary acknowledges that the Board did not identify the prior statements of record that were similar to the newly submitted evidence, but asserts that “any error committed by the Board is harmless” because the added
statements were cumulative and that a remand “would [serve] no useful purpose.” Id. at 10-11. In response to the appellant’s remaining arguments, the Secretaryasserts that (1) the appellant’s reliance on Sagainza is misplaced because the Board in the present case “discussed the lay statements and determined that they were cumulative” (id. at 12); (2) “VA is not required to provide Appellant with another examination . . . unless new and material evidence has been presented to reopen Appellant’s claim” (id. at 12-14); and (3) the Board based its decision on the appellant’s active period of service (id. at 14-15).
II. ANALYSIS
The Secretary must reopen a previously and finally disallowed claim when”
new and material evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c);
38 C.F.R. § 3.156(a)(2009). In order to satisfy these requirements, the evidence “must be both
new and material.” Smith v. West, 12 Vet.App. 312, 314 (1999). “New and material evidence” is
defined as follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when
considered with previous evidence of record, relates to an unestablished
fact
necessary to substantiate the claim. New and material evidence can be
neither
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cumulative nor redundant of the evidence of record at the time of the
last prior final
denial of the claim sought to be reopened, and must raise a reasonable
possibility of
substantiating the claim.
38 C.F.R. § 3.156(a). Whether evidence is new and material “depends on
the basis on which the
prior claim was denied.” Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). The
Court reviews the
Board’s determination of whether the appellant has submitted new and
material evidence to reopen
a prior claim under the “clearly erroneous” standard of review. 38 U.S.C. §
7261(a)(4); Suaviso v.
Nicholson, 19 Vet.App. 532, 533 (2006). “A factual finding ‘is “clearly
erroneous” when although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and
firm conviction that a mistake has been committed.'” Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The
Court may not substitute
its judgment for the factual determinations of the Board on issues of
material fact merely because
the Court would have decided those issues differently in the first
instance. Id.
The Board’s decision must include a written statement of the reasons or
bases for its findings
and conclusions on all material issues of fact and law presented on the
record; the statement must
be adequate to enable an appellant to understand the precise basis for the
Board’s decision, and to
facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1);
Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply
with this requirement,
the Board must analyze the credibility and probative value of the evidence,
account for the evidence
it finds persuasive or unpersuasive, and provide the reasons for its
rejection of anymaterial evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
Generally, remand is the
appropriate remedy “where the Board has incorrectly applied the law,
failed to provide an adequate
statement of reasons or bases for its determinations, or where the record
is otherwise inadequate.”
Tucker v. West, 11 Vet.App. 369, 374 (1998).
In the decision on appeal, the Board found that the appellant’s new
evidence was not material
to the reason for the prior denial of service connection because “none of
the newlyreceived evidence
contains a medical opinion concerning the etiology of the veteran’s peptic
ulcer disease with
duodenal ulcer.” R. at 6-7. The Board rejected the appellant’s lay
statements, including the statements from his mother and former spouse, because they were “similar to statements previously of record.” R. at 7. As the Secretary conceded, the Board did not identify the prior statements of

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record that were similar to the newly submitted evidence. Secretary’s Br.
at 10-11.
The Board also rejected the appellant’s lay statements as “insufficient to establish a reasonable possibility of substantiating the claim because lay persons . . . are not competent to render a medical diagnosis or an opinion concerning medical causation.” R. at 7. The Court finds that the Board’s rejection of this lay evidence was in error.
Pursuant to 38 C.F.R. § 3.303(b)(2009),VA
may award serviceconnection where a claimant
can demonstrate “(1) that a condition was ‘noted’ during service; (2)
evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain
circumstances, lay evidence of a nexus between the present disability and the postservice
symptomatology.” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (emphasis added).

A claimant may rely on lay evidence “to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.” Jandreau v. Nicholson,
492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). The U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) has also held that “the Board cannot determine
that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.” Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

The Board erred when it categorically rejected the appellant’s lay statements “because lay
persons, such as the veteran, his mother[,] and his former spouse, are not
competent to render a medical diagnosis or opinion concerning medical causation.” R. at 7. The
Federal Circuit recently reiterated its rejection of the view that “competent medical evidence is
required . . . [when] the determinative issue involves either medical etiology or a medical
diagnosis,” and stated that any categorical requirement of “a valid medical opinion” to establish nexus ” is in direct conflict with [the Federal Circuit’s] precedent.” Davidson v. Shinseki, ___ F.3d ___, ___, No. 2009-7075, 2009 WL 2914339, at *3-4 (Fed. Cir. Sept. 14, 2009). The Board’s categorical dismissal of this evidence as incompetent was in error.

Moreover, the Board failed to discuss whether the appellant’s lay evidence
constituted evidence of continuity of symptomatology. See Barr, supra; see also 38 C.F.
R. § 3.303(b). This Court has held that “[l]ay testimony is competent . . . to establish the
presence of observable

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symptomatology and ‘may provide sufficient support for a claim of serviceconnection.'” Id.(quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)); see also Charles v. Principi,
16 Vet.App. 370, 374 (2002) (stating that a lay person is competent to offer testimony
regarding symptoms capable of observation). This Court has also found that
if the continuity of symptomatology provision of § 3.303(b) requires that
there be medical-nexus evidence relating the veteran’s present disability to
service . . . , the continuity of symptomatology provision would simply be a nullity. Thus,
the Court holds that no such medical-nexus evidence is required. Nevertheless,
because it would not necessarily follow that there is a relationship between any
present disability and the continuity of symptomatology demonstrated, medical
evidence . . . is required to demonstrate such a relationship, unless such a relationship
is one as to which a lay person’s observation is competent.
Savage v. Gober, 10 Vet.App. 488, 497 (1997) (emphasis added).
The
appellant’s former spouse, identified by the appellant as a nurse, stated that the appellant had
stomach problems from 1966 to 1979. R. at 949. The Board failed to acknowledge the appellant’s contention that his wife is a nurse, and failed to assess the impact, if any, that this would have on the competency of her statement. See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007) (holding that a nurse practitioner is competent to provide “medical diagnoses, statements, or opinions”) (quoting 38 C.F.R. § 3.159(a)(1) (2006)); but cf. Black v. Brown, 10 Vet.App. 279, 284 (1997) (rejecting the medical opinion of the appellant’s wife – a nurse – because her duties were administrative and she did not have “special knowledge” relating to her husband’s condition). The appellant’s mother also stated that he had ongoing stomach problems both during and after service. R. at 911. The Board erred by failing to discuss whether these lay statements corroborate the appellant’s testimony regarding his continuous symptoms and by failing to assess their probative value instead of dismissing them as incompetent simply because of their lay nature.
The Court finds that the Board did not provide an adequate statement of reasons or bases for its rejection of the appellant’s new evidence because the Board (1) failed to state what evidence in the record the newly submitted evidence was similar to; (2) categorically dismissed the lay statements as incompetent; (3) failed to explain its conclusion that medical evidence is required to establish a link between the appellant’s current condition and service; and (4) failed to consider the lay statements as new evidence of continuity of symptomatology. See Barr, Jandreau, Davidson,
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and Savage, all supra; see also Robinson v. Shinseki, 312 Fed.Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential) (requiring the Board to conduct a two-step analysis of lay evidence in which it must first determine whether the condition in question is the type of condition “for which lay evidence is competent evidence,” and, if so, “the Board must weigh that evidence against the other evidence of record”). Accordingly, the Court will vacate the Board’s finding that no new and material evidence has been submitted to reopen the appellant’s claim, and remand the matter to the Board for further development and adjudication. See Tucker, supra.
Given this disposition, the Court will not at this time address the appellant’s remaining arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him”). On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument.
Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the record, the December 21, 2007, Board decision is VACATED, and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: October 9, 2009
Copies to:
Charles A. Rodgers
VA General Counsel (027)
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