Veteranclaims’s Blog

October 24, 2009

Lay Evidence, Factual Analysis of Lay Evidence

The case we are looking at here is a MEMORANDUM DECISION

Lay evidence, who is responsible for doing the “factual analysis” of lay evidence in VA cases.
Well according Judge Moorman, that is not the job of the Veterans Court or the Secretary when arguing before the Veterans Court. In this Memorandum decision the issue was remanded to the Board.

Can the Board accomplish this without a remand to the RO?

We’ve noticed the large number of remands coming out of the Veterans Court on lay evidence and what symptoms are capable of lay observation and what is a relatively simple condition, that lay testimony is thus sufficient to identify.

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The Court cannot substitute its own factual analysis of the lay evidence or that of the Secretary for a missing analysis by the Board whose obligation it is to decide these factual questions in the first instance.
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However, the U.S. Court of Appeals for the Federal Circuit has held that, in some cases, lay evidence will be competent and credible evidence of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37, 1336 n.1 (Fed. Cir. 2006). In Jandreau, the Federal Circuit rejected as “too broad” the proposition that “competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.” 492 F.3d at 1376-77 (alteration in original). Instead, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) that layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Id. at 1377; see Robinson v. Shinseki, 312 Fed. Appx. 336, 2009 WL 524737, at *3 (Fed. Cir. Mar. 3, 2009) (nonprecedential) (remanding for the Board to determine whether a low-back disability is the type of injury for which lay evidence is competent evidence).
Here, the Board provided no analysis as to whether the low-back disability is a type of medical condition that a lay person is competent to identify or whether the appellant’s statements and the other lay evidence regarding the back condition constitute reports of a contemporaneous medical diagnosis of a back disability or support a later diagnosis of a back disability by a medical professional. Further, the Board failed to discuss whether the appellant’s lay evidence constitutes evidence of a continuity of symptomatology of a back disability from the time of service to the present. See Jandreau, supra; Layno v. Brown, 6 Vet.App. 465, 469 (1994) ( holding that lay evidence in the form of statements or testimony by a claimant is competent to establish evidence of symptomatology where symptoms are capable of lay observation); see also 38 C.F.R. § 3.303(b) (2009) (providing for continuity of symptomatology to support claim); Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); Savage v. Gober, 10 Vet.App. 488, 495-97 (1997) (discussing § 3.303(b) as a way of showing in-service incurrence and medical nexus for purposes of reopening a claim). The Court notes that, in terms of the Board’s discussion on remand as to whether the lay evidence is material on the issue of continuity of symptomatology, the Board in 1997 did not,
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contrary to the Secretary’s assertions on appeal here, find that the evidence had established that the appellant had injured her back in service and had continuous pain after service.
Compare Secretary’s Response at 3-4 (“[T]he fact that Appellant claims to have injured her back in service and to have experienced pain subsequently, was already established in the prior Board decision.”) with R. at 344 (1997 Board decision noting that evidence was “not sufficient to show that her back problems date back to service” and service medical records do not show “complaints referrable to the low back”).
The Court cannot substitute its own factual analysis of the lay evidence or that of the Secretary, see Resp. at 4-5 (“Appellant’s lay evidence is not material because a back disability is not a condition capable of lay diagnosis. Moreover, the new evidence here is not specific enough to establish continuity . . . .”), for a missing analysis by the Board whose obligation it is to decide these factual questions in the first instance.Accordingly, the Court will remand the Board’s denial of reopening for the Board to provide an adequate statement of reasons or bases for its conclusions in this regard.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-2795
LINDA A. CLEMONS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.1

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
Previous HitMOORMANNext Hit, Judge: On April 16, 2009, U.S. Air Force veteran Linda A. Clemons,
through
counsel, filed a motion for reconsideration or, in the alternative, panel
review of a March 26, 2009,
single-judge memorandum decision that affirmed an August 2, 2007, decision
of the Board of
Veterans’ Appeals (Board). On July 7, 2009, in response to a Court order,
the Secretary filed a
response to the motion for reconsideration. The Court will grant the
motion for reconsideration and
withdraw the March 26, 2009, memorandum decision and issue this decision
in its stead.
Ms. Clemons appeals from the August 2, 2007, Board decision that
determined that new and
material evidence had not been submitted to reopen a claim for service
connection for a back
disorder. Both parties filed briefs. This appeal is timely and the Court
has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate when, as here, the issue
is of “relative simplicity” and the outcome is not “reasonably debatable.”
See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
vacate the August 2007
Board decision and remand the matter for readjudication, supported by an
adequate statement of
On April 29, 2009, Judge Previous HitMoormanNext Hit replaced Judge Holdaway, who issued the
March 26, 2009, decision , but
whose period of recall service expired. See 38 U.S.C. § 7257(b)(2) (
providing for period of service for recall-eligible
retired judges).
1

reasons or bases.
I. FACTS
Ms. Clemons served on active duty in the U.S. Air Force from June 1976 to
November 1980.
Record (R.) at 11. In December 1993, she filed a claim for service
connection for a back injury.
R. at 165-68. The VA regional office (RO) denied the claim in July 1994,
noting that “[t]he
veteran’s service medical records do not show the veteran suffered a
chronic cervical spine condition
during her military service.” R. at 219. The RO also stated that the ”
private medical records
submitted do not show or tend to show that the veteran’s cervical or
lumbar spine injuries were the
result of her active military service.” R. at 220. Ms. Clemons initiated
and perfected an appeal of
this decision. R. at 225-26, 228-29.
In October 1996, Ms. Clemons testified at a Board hearing. R. at 244-52.
She described her
in-service injury and noted how she attempted to seek treatment but was
told “there were no back
doctors.” R. at 246, 249. A May 1997 Board decision denied the claim. R.
at 339-45. In denying
the claim, the Board found that there was no evidence corroborating Ms.
Clemons’s statements and
that her statements as to why she did not seek treatment in service lacked
credibility. R. at 344. The
Board determined that there was no competent medical evidence relating her
current back disability
to service. R. at 341, 344.
In March 2001, Ms. Clemons requested that her claim for service connection
for a back
condition be reopened. R. at 371-74. In August 2002, the RO determined
that new and material
evidence had not been submitted to reopen the claim. R. at 382-83. She
appealed this decision.
R. at 385-87, 405.
In April 2006, Ms. Clemons submitted lay statements from family members
and friends in
support of her claim. R. at 496-97, 502, 503. A February 2007 Supplemental
Statement of the Case
continued to deny the claim. R. at 569-77. In August 2007, the Board
issued the decision on appeal.
R. at 1-6. This appeal followed.
II. ANALYSIS
The Secretary must reopena previouslyandfinallydisallowedclaimwhen”
newandmaterial
evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c);
38 C.F.R. § 3.156(a)
2

(2009). In order to satisfy these requirements, the evidence “must be
both new and material.” Smith
v. West, 12 Vet.App. 312, 314 (1999). At the time the appellant filed her
claim to reopen, VA
regulation provided that “[n]ew evidence” is evidence “not previously
submitted to agency
decisionmakers . . . [that] is neither cumulative nor redundant.” 38 C.F.R.
§ 3.156(a) (2001); see
66 Fed. Reg. 45,620 (Aug. 29, 2001) (amendments to § 3.156 apply to any
claim for benefits
received by VA on or after August 29, 2001); see also Elkins v. West, 12
Vet.App. 209, 216 (1999)
(en banc). It also provided that new evidence will be considered material
only if it “bears directly
and substantially upon the specific matter under consideration”and”by
itself or in connection with
evidence previously assembled is so significant that it must be considered
in order to fairly decide
the merits of the claim.” 38 C.F.R. § 3.156(a) (2001); see Hodge v. West,
155 F.3d 1356, 1363
(Fed. Cir. 1998) (holding that the materiality requirement of 38 C.F.R. §
3.156(a) (1998) is not
focused on outcome determination but upon importance of complete record
for evaluation of
appellant’s claim). In rendering its decision, the Board is required to
provide 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.” 38 U.S.C. § 7104(d)(1). The statement must be
adequate to enable a
claimant to understand the precise basis for the Board’s decision, as well
as to facilitate review in
this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
The Court generally reviews whether an appellant has submitted new and
material evidence
to reopen a prior claim under the “clearly erroneous” standard of review
set forth in 38 U.S.C.
§ 7261(a)(4). See 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 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.; Gilbert, 1 Vet.App. at 52.
On appeal, the appellant argues that remand is required because the Board
failed to provide
adequate reasons or bases for its determination that lay statements
submitted were not sufficient to
reopen her claim. Appellant’s Brief (Br.) at 7-14; Appellant’s motion for
reconsideration at 1-5. She
maintains that the lay statements corroborated her previous statements and
contained her family’s
3

independent observations regarding her back condition. Motion for
reconsideration at 4-5. The
Secretary counters that the Board’s reasons or bases were adequate.
Secretary’s Br. at 9-10. The
Secretary concedes that the lay statements are new but maintains that ”
they are not material in
demonstrating an etiological link between Appellant’s current back
disability and an incurrence or
aggravation during military service.” Resp. at 4. He contends that the
appellant’s lay evidence “is
not material because a back disability is not a condition capable of lay
diagnosis” and that the “new
evidence here is not specific enough to establish continuity and merely
echoes Appellant’s past
assertions that she had an injury during service.” Resp. at 4-5. He
contends that even if the evidence
is corroborative evidence, “the fact that Appellant claims to have injured
her back in service and to
have experiencedpainsubsequently,was alreadyestablished intheprior Board
decision.” Id. at3-4.
Hefurther assertsthat the record in 1997 had”alreadyestablished
Appellant’s claims of an in-service
injury and back pain after discharge” and that the 1997 Board decision ”
did not call into account her
credibility.” Id. at 4. For the reasons set forth below, the Court
concludes that the Board’s statement
of reasons or bases is inadequate to support its conclusion that the lay
statements were not new and
material evidence sufficient to reopen her claim.
In the August 2007 decision on appeal, the Board stated that “[b]ased on
the grounds stated
for the denial in the May 1997 Board decision, new and material evidence
would consist of medical
evidence showing a link between a current back disability and incurrence
or aggravation during
military service.” R. at 5. The Board acknowledged that the evidence
received after the May 1997
Board decision included statements fromthe appellant, her former spouse,
and individuals who have
known her since February 1995 and October 2000 and that this evidence
noted the appellant’s
“complaints of back pain during and after service.” R. at 5-6. The Board
concluded, however, that
the lay evidence was not “new evidence” because the evidence “is
essentially duplicative [and
cumulative] of the previous arguments and contentions offered by and on
behalf of the appellant at
the time of the prior claim.” R. at 6. The Board further concluded that “[
a]s lay persons, . . . they
do not have the medical expertise to offer a medical opinion, nor does
such testimony provide a
sufficient basis for reopening a previously disallowed claim.” R. at 6.
Without explanation, the
Board also stated: “It is also not material because it is not so
significant that it must be considered
in order to fairly decide the merits of the claim.” R. at 6.
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The 1997 Board decision had previously denied the appellant’s claim for
service connection
for a back condition because the evidence was insufficient to show that
the appellant’s back
problems dated back to service. R. at 344. Specifically, the Board stated:
While the medical evidence shows a current back disability, which extends
back to
the mid 1980’s, this evidence is not sufficient to show that her back
problems date
back to service. Notwithstanding the veteran’s contentions that she was
informed
that no physicians were available to treat her back during the time she
served, this
testimony is not sufficient to establish service connection. There is no
evidence
which corroborates her allegations that she sought and was refused
treatment for
her back problems while in the service. The service medical records do
indicate that
she received treatment for a soft tissue injury in the area of the
cervical spine;
however, no complaints referrable to the low back were shown. Moreover,
her
statement that she could not seek treatment for low back problems for fear
of being
discharged from service lacks credibility in light of the service medical
records
which show that she sought and received treatment for various complaints,
including
those involving the musculoskeletal system, throughout service.
R. at 344 (emphasis added). The Board further stated: “The extensive
records of chiropractic and
medical treatment after service contain no medical opinion linking her low
back disabilities to
service or any incident therein. In view of the foregoing, therefore, the
Board finds that the
preponderance of the evidence is against the veteran’s claim for service
connection for a back
disorder.” Id.
The evidence submitted after the 1997 Board decision included lay
statements from family
members and friends in support of her claim. The appellant’s sister
submitted a statement relating
that the appellant complained of neck and back pain constantly upon
returning home from the Air
Force in 1980 and for many years thereafter, that the appellant had
confided in her that she had
injured herself in the military, and that her “back condition worsened as
the years progressed.” R. at
502. Her sister described how the appellant would sleep on the floor to
alleviate her neck and back
pain and that, in 1984, the appellant relocated back to their mother’s
home because she was unable
to find employment because of her back condition. Id. In April 2006, the
appellant’s friend and
co-worker wrote that she had known the appellant since 1995 and worked
together closely for more
than 11 years and that the appellant “has suffered with lower back pain
this entire time.” R. at 503.
The appellant’s ex-husband also submitted a statement in April 2006. R. at
496-97. He stated that
they lived together from August 1977 until April 1980, that the appellant
sought treatment for back
5

pain during her military service and was told that she would have to get
medical attention from an
“outside source” because there were no back doctors on base. R. at 496. He
stated that during this
time she complained of having severe lower back pain, was “always
uncomfortable with a lower
backache,” and took pain medicine “on a consistent basis.” Id.
The Court agrees with the appellant’s position. The lay statements
submitted subsequent to
theMay1997Boarddecisionassertedthat the appellant sought treatment
duringserviceforher back
condition, recounted what the appellant had stated as to why she did not
receive treatment for her
back during service, and noted that she continued to have back pain after
service. R. at 496, 502-03.
Although the Board found these lay statements to be cumulative, the Board
did not provide an
adequate statement explaining whether the lay statements were
corroborative, rather than
cumulative, of the evidence before the Board in 1997. This is significant
in light of the finding by
the Board in 1997 that “[t]here is no evidence which corroborates her
allegations that she sought and
was refused treatment for her back problems while in the service.” R. at
344.
Although the
Secretary offers an explanation as to why the evidence should not be
considered corroborative, it
is the obligation of the Board, not the Secretary on appeal, to provide
the reasons for the Board’s
decision. Secretary’s Response at 3 (arguing that the lay statements were
cumulative because the
evidence “merely make[s] the same evidentiary point in greater volume” and
had the same “quality”
and “character” as the pre-1997 evidence). The Board also did not discuss
whether the lay evidence
was material in terms of the appellant’s credibility, which was an issue
of concern for the Board in
1997. Contrary to the Secretary’s contentions, in its 1997 decision, the
Board had questioned the
appellant’s credibility. Compare Secretary’s Response at 4 (stating that
the record in 1997 had
“already established Appellant’s claims of an in-service injury and back
pain after discharge” and
that the 1997 Board decision “did not call into account her credibility”)
with R. at 344 (1997 Board
decision finding that the appellant’s statement of reason for not
receiving treatment in service lacked
credibility).
Furthermore, in its decision, the Board stated that medical evidence did
not establish a link between the current back disability and service and that the lay persons
did not have medical expertise to offer a medical opinion. R. at 5-6. The Court holds that the
Board did not provide an adequate statement of reasons or bases for its conclusion that medical evidence was required to establish the link between the appellant’s current back disability and service. Based on the Board’s
6

statements, the Court concludes that the Board believed that an etiology
determination can only be supported by a person with “medical expertise.” The Board dismissed, at least in part, the lay assertions based upon the erroneous legal conclusion that medical expertise was required and, therefore, that the lay evidence was not competent to provide etiology evidence. However, the U.S. Court of Appeals for the Federal Circuit has held that, in some cases, lay evidence will be competent and credible evidence of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37, 1336 n.1 (Fed. Cir. 2006). In Jandreau, the Federal Circuit rejected as “too broad” the proposition that “competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.” 492 F.3d at 1376-77 (alteration in original). Instead, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) that layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Id. at 1377; see Robinson v. Shinseki, 312 Fed. Appx. 336, 2009 WL 524737, at *3 (Fed. Cir. Mar. 3, 2009) (nonprecedential) (remanding for the Board to determine whether a low-back disability is the type of injury for which lay evidence is competent evidence).
Here, the Board provided no analysis as to whether the low-back disability
is a type of medical condition that a lay person is competent to identify or whether
the appellant’s statements and the other lay evidence regarding the back condition constitute reports of a contemporaneous medical diagnosis of a back disability or support a later diagnosis of a back disability by a medical professional. Further, the Board failed to discuss whether the appellant’s lay evidence constitutes evidence of a continuity of symptomatology of a back disability from the time of service to the present. See Jandreau, supra; Layno v. Brown, 6 Vet.App. 465, 469 (1994) (holding that lay evidence in the form of statements or testimony by a claimant is competent to establish evidence of symptomatology where symptoms are capable of lay observation); see also 38 C.F.R. § 3.303(b) (2009) (providing for continuity of symptomatology to support claim); Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); Savage v. Gober, 10 Vet.App. 488, 495-97 ( 1997) (discussing § 3.303(b) as a way of showing in-service incurrence and medical nexus for purposes of reopening a claim). The Court notes that, in terms of the Board’s discussion on remand as to whether the lay evidence is material on the issue of continuity of symptomatology, the Board in 1997 did not,
7

contrary to the Secretary’s assertions on appeal here, find that the evidence had established that the appellant had injured her back in service and had continuous pain after service.
Compare Secretary’s Response at 3-4 (“[T]he fact that Appellant claims to have injured her
back in service and to have experienced pain subsequently, was already established in the prior Board decision.”) with R. at 344 (1997 Board decision noting that evidence was “not sufficient to show that her back problems date back to service” and service medical records do not show “complaints referrable to the low back”).
The Court cannot substitute its own factual analysis of the lay evidence or that of the Secretary, see Resp. at 4-5 (“Appellant’s lay evidence is not material because a back disability is not a condition capable of lay diagnosis. Moreover, the new evidence here is not specific enough to establish continuity . . . .”), for a missing analysis by the Board whose obligation it is to decide these factual questions in the first instance. Accordingly, the Court will remand the Board’s denial of reopening for the Board to provide an adequate statement of reasons or bases for its conclusions in this regard.
On remand, the appellant is free to submit additional evidence and argument on the remanded matters, which the Board must consider when readjudicating his claim. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B, 7112.

III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Court’s March 26, 2009, decision is WITHDRAWN, and this decision is issued in its stead. The
August 2, 2007,
Board decision is VACATED, and the matter of whether new and material
evidence has been submitted to reopen the claim for service connection for a back disorder
is REMANDED for further proceedings consistent with this decision.
DATED: August 20, 2009
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Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
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