Veteranclaims’s Blog

October 25, 2009

Lay Evidence, 38 CFR 3.303, RO Denies Existance of Lay Evidence

Filed under: Uncategorized — Tags: — veteranclaims @ 5:01 pm

When some one declare that there is “no” evidence, “no” basis or “no” whatever, your shields should go up because more often than not there will evidence of some sort to counter that “no”.
This is of particular importance to VA decision issued before VBA 1989.

We find this decision of interest, in part, because it is a CUE claim.

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the appellant challenges the Board finding that the RO in 1969 correctly applied 38 C.F.R. § 3.303(a) and (b).
In the context of this CUE claim, the question is whether the 1969 RO
decision properly applied the applicable regulation, 38 C.F.R. § 3.303, to the lay evidence.
The decision noted some of the lay evidence and mentioned the VA examination, it is therefore clear that the lay evidence was
before the RO, despite the RO’s failure to discuss all of it explicitly.
See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (noting that, prior to enactment of Veterans’ Benefits Amendments of 1989, Pub. L. No. 101-237, 103 Stat. 2062 (1989), ROs were not required to set forth in detail the factual bases for their decisions); Gonzales v. West, 218 F.3d 1378, 1381 ( Fed. Cir. 2000) (“[A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO’s determination of the [sic] service connection must be presumed to have been reviewed . . . and no further proof of such review is needed.”). Had the RO not further characterized the state of the evidence, the central issue of this appeal would have been quite different. In this case, however, the appellant has demonstrated that the RO did not correctly apply the law to the evidence. Although the RO in 1969 had the lay evidence before it, it declared that “[t]he veteran has furnished no evidence concerning service incurrence, chronicity and continuity.” R. at 137. From the RO’s explicit statement, it is clear that the RO gave no weight to the lay evidence. The RO did not say or indicate that the evidence was insufficient to find service incurrence or continuity of symptomatology. Its declaration that there was “no evidence” leaves no doubt that it incorrectly applied § 3.303, giving the lay evidence no consideration at all.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1454
JACK D. SNYDERNext Hit, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, veteran Jack D. Previous HitSnyderNext Hit, through counsel,
appeals a
February 9, 2007, decision of the Board of Veterans’ Appeals (Board)
determining that a July 1969
decision of the VA regional office (RO) was not predicated on clear and
unmistakable error (CUE)
and that Mr. Previous HitSnyderNext Hit was, therefore, not entitled to an effective date
earlier than November 20, 1997,
for service connection for solar urticaria. Both parties filed briefs, and
the appellant filed a reply
brief. On appeal, the appellant argues that the Board should have found
CUE in the 1969 RO
decision because the RO failed to properly apply VA regulations,
specifically, 38 C.F.R. § 3.303(b)
and VA Regulation (VAR) 1380, in connection with its consideration of lay
evidence. This appeal
is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(
a) and 7266(a). A single
judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-
26 (1990). For the
reasons set forth below, the Court will reverse the Board’s determination
that the 1969 RO did not
commit error in its application of § 3.303 and will remand the matter for
the Board to determine
whether, on the record before the RO in 1969, the evidence established
manifestly that correction
of the error would have changed the outcome–i.e., that an award of
service connection would have
resulted had the RO given weight to the lay evidence of record. Because
the Board failed to discuss
the contention that the RO erred in its application of VAR 1380, the Court
will remand for the

Board’s consideration of that matter in the first instance.
I. FACTS
Mr. Previous HitSnyderNext Hit had active duty service from January 1942 to December 1945,
from February
1947 to February 1949, and from May 1949 to November 1952. Record (R.) at
2, 12-14, 83-89. His
May 1949 entrance examination for the U.S. Air Force did not indicate that
he had any abnormality
of the skin or sensitivity to sunlight. R. at 23. During his last period
of service, he had been
assigned duties in Fairbanks, Alaska, and thereafter reported to Hamilton
Air Force Base in
California. R. at 130. His service medical records (SMRs) for his last
period of service in California
included an entry on May 12, 1952, that noted: “Hives when he sits out in
the sun. No hives seen
at present. Rx [illegible].” R. at 76. On Mr. Snyder’s November 1952
separation examination
report, the examiner noted that Mr. Previous HitSnyderNext Hit “[h]as occasional mild episodes
of dizziness attributed
to sensitivity to sunlight; no difficulty of this sort until arrival in
California. These episodes are
associated with palpitation, slight nervousness, and slight nausea. Has
been unable to find
satisfactory relief through medical channels.” R. at 60, 62.
In January 1969, Mr. Previous HitSnyderNext Hit applied for VA disability compensation for
chronic solar
urticaria. R. at 78-81. Shortly thereafter, he submitted private medical
reports from 1968 from two
physicians who diagnosed chronic solar urticaria and an allergy to
sunlight. R. at 99, 106, 114.
Those reports recorded Mr. Previous HitSnyderNext Hit as noting that the problemdeveloped in
1952 and that, since that
time, he has been very sensitive to sun, reporting that “any exposed area
becomes quite
erythematous.” R. at 99, 114. In addition, one of the reports noted that ”
he may become quite
nauseated and as understood, on occasion, he vomits.” R. at 114.
In April 1969, VA provided Mr. Previous HitSnyderNext Hit with a VA medical examination. R. at
121-25.
Mr. Previous HitSnyderNext Hit informed the examiner that he was “bothered all the time to
some degree with the skin
condition,” reporting that the sun “bothers him very badly, it itches
terribly” and that it “[b]egan
around 1950’s.” R. at 121. The medical report noted that Mr. Previous HitSnyderNext Hit
reported that whenever he is
out in the sun or in very warm weather, he develops hives and that he ”
dates the onset of urticaria
to 1952.” R. at 124. The report also noted that Mr. Previous HitSnyderNext Hit first received
medical treatment for this
condition in 1968. Id. The examiner noted the presence of urticarial
plaques on both arms and
thickening of the skin of the face and diagnosed Mr. Previous HitSnyderNext Hit as having
solar urticaria. Id. The
2

examiner alsocommentedthat “[t]hedurationoftheconditioncannot beestimated
fromthephysical
examination alone.” R. at 125. He did not provide any opinion as to the
duration of Mr. Snyder’s
condition. Id.
In a May 1969 statement, Mr. Previous HitSnyderNext Hit stated that his sun allergy occurred
during his time in
service and has continuously grown worse. R. at 130. He noted that he did
not have the allergy to
the sun during his time in the U.S. Air Force prior to the time spent in
Alaska, but did have the
allergy after reporting to Hamilton Air Force Base in California from
Alaska. Id. He stated that the
doctors at Hamilton Air Force Base suggested that he stay out of the sun.
He further stated that this
was impossible to do during his enlistment because he was a crew chief on
an airplane. He received
the impression from the doctors that he had a “gold brick” type of
complaint. He noted that he has
been gradually getting worse, to the point where he must wear a sun screen
make up cream, dark
glasses, hat, and long sleeved clothing when outside during daylight hours.
In July 1969, the RO denied Mr. Snyder’s claim. R. at 137. The RO
concluded that
(1)Mr.Previous HitSnyderNext Hit furnished”noevidenceconcerningservice incurrence,
chronicityand continuity”and
(2) the “single isolated entry of 5-12-52 must be considered as acute
manifestation under VAR
1380.” R. at 137. The RO decision became final. Thereafter, Mr. Previous HitSnyderNext Hit
attempted to reopen his
claim, which was denied in a final October 1989 Board decision. R. at 253-
63.
In November 1997, Mr. Previous HitSnyderNext Hit filed a claim to reopen the prior
disallowance of his claim.
R. at 267. Following the submission of further evidence, including a July
2001 report from a private
dermatologist who opined that Mr. Snyder’s solar urticaria was “[c]learly
and unquestionably
documented dating from 1952 while in military service” (R. at 573-74), the
RO granted service
connection for solar urticaria, assigned a 10% disability rating,
effective from November 20, 1997.
R. at 629 (November 2001 RO decision); see Supplemental (Suppl.) R. at 11-
12 (November 2001
Suppl. Statement of the Case). Thereafter, in a July 2003 RO decision, Mr.
Snyder’s initial rating
was increased to 60%, effective from November 1997. R. at 698-702.
In March 2005, Mr. Previous HitSnyderNext Hit filed a claim alleging CUE in the 1969 RO
decision. R. at 704-
08. He argued that the 1969 RO erred in relying on a single episode of
solar urticaria in service and
in concluding that the May 1952 entry in his SMRs demonstrated an acute
manifestation under VAR
1380. R. at 705-08. He also noted that the April 1969 medical examination
diagnosed him with
solar urticaria. R. at 707. He argued that the evidence demonstrated he
had “a chronic, rather than
3

an acute, condition” and that service connection should have been granted.
R. at 707-08. A June
2005 RO denied his CUE claim. R. at 718-22. Later that year, Mr. Previous HitSnyderNext Hit
filed a Notice of
Disagreement in which he argued that, in its 1969 decision, the RO failed
to apply the proper criteria
in denying his claim. R. at 731. In his Substantive Appeal to the Board,
he repeated the arguments
previously made and also stated that the RO failed to consider all the
evidence of record, that the
evidence substantiated that his condition was incurred in service, and
that his disability has been
continuous from 1952 to the present. R. at 726.
In the February 2007 decision here on appeal, the Board determined that
the 1969 RO
decision did not contain CUE and that Mr. Previous HitSnyderNext Document was not entitled to an
earlier effective date for
the award of service connection for his condition. R. at 3. The Board
noted that the RO had applied
the applicable regulation, 38 C.F.R. § 3.303, and interpreted the facts
as not showing solar urticaria
as a chronic disease in service, or continuous from service, or incurred
in service. R. at 7. The
Board then determined that the RO’s interpretation “was not unreasonable”
and that the appellant’s
CUE claim was ultimately based only upon “a disagreement as to the
interpretation of the facts.”
Id.
II. ANALYSIS
A. Parties’ Contentions
On appeal, the appellant argues that the 1969 RO decision misapplied 38 C.
F.R. § 3.303,
whichprovides that serviceconnectionmaybeestablished by all pertinent
medical and lay evidence,
when the RO determined that he had “furnished no evidence concerning
service incurrence,
chronicity and continuity” of his claimed solar urticaria. Appellant’s
Brief (App. Br.) at 8 (quoting
1969 RO decision, R. at 137), 12-13 (emphasis added). He contends that at
the time of the 1969 RO
decision,thereweremultipleitemsofevidenceconcerningtheserviceincurrence,
symptomatology,
chronicity and continuity of his solar urticaria. Id. at 9, 12. He points
out that at the time of the
1969 decision, there was no evidence of record that contradicted the
evidence that was favorable to
his claim. He argues that the RO erroneously concluded that his lay
statements were not evidence
at all and disregarded his evidence altogether. He further argues that his
allergy to the sun, which
resulted in skin eruptions, was a fact capable of lay observation, was
repeated to a doctor, and his
statements as to his symptoms formed the bases for the diagnosis of
chronic solar urticaria. Id. at
4

9 (citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), and
Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007)).
The second error alleged by the appellant is that the 1969 RO incorrectly
interpreted VAR
1380 (38 C.F.R. § 3.380) as requiring that the “single isolated” SMR
entry on May 12, 1952,
regarding his condition be considered an “acute manifestation under VAR
1380.” App. Br. at 13
(quoting 1969 RO decision, R. at 137). He argues that VAR 1380 did not so
require and that the
regulation actually required that, for conditions such as urticaria, a
determination as to service
incurrence or aggravation be made on the “whole evidentiary record.” Id. (
quoting VAR 1380).
The appellant maintains that had the alleged legal errors noted above not
been made, the
outcome would have been manifestly changed, and the only permissible view
of the evidence is that
the 1969 RO decision would have granted his claim. App. Br. at 15-16. He
contends that, at the
time of the 1969 RO decision, there was evidence of a continuing condition
in service, evidence of
a continuity of symptoms since service, and a medical opinion that
etiologically linked the
symptoms observed in service with the condition diagnosed in 1969. Id. at
15.
The Secretary’s position is that the Board decision should be affirmed
because the RO in
1969 correctly applied § 3.303 and the evidence of record supports the
RO’s application of VAR
1380. Secretary’s Br. at 8. The Secretary maintains that the appellant’s
argument regarding
misapplication of regulations is a mere disagreement with the weighing of
the evidence and does not
rise to the level of CUE. Id. at 10. The Secretary contends that the Board
correctly noted that the
1969 RO considered the lay evidence of record. Id. at 10-11. The Secretary
further argues that
Buchanan and Jandreau are inapplicable because those decisions did not
exist at the time of the
1969 RO decision. Id. at 12.
B. Application of Law
Establishing service connection generally requires (1) medical evidence of
a current
disability; (2) medical or, in certain circumstances, lay evidence of in-
service incurrence or
aggravation of a disease or injury; and (3) medical evidence of a nexus
between the claimed
in-service disease or injury and the present disability. See Hickson v.
West, 12 Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995); 38 C.F.R. §
3.303 (2008). Section
3.303(a) provides that each disabling condition for which a veteran seeks
service connection “must
5

be considered on the basis of . . . all pertinent medical and lay
evidence.” 38 C.F.R. § 3.303(a)
(1969 & 2008); see Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008) (
discussing § 3.303 in
connection with a CUE challenge to a March 1982 RO decision that denied
service connection for
paranoidschizophrenia). Under§3.303(b),titled”Chronicityandcontinuity,”
analternativemethod
of establishing the second or third element of service connection is
through a demonstration of
continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (
1997); see also
Clyburn v. West, 12 Vet.App. 296, 302 (1999). Specifically, § 3.303
provides, in relevant part:
Continuity of symptomatology is required only where the condition noted
during
service (or in the presumptive period) is not, in fact, shown to be
chronic or where
the diagnosis of chronicity may be legitimately questioned. When the fact
of
chronicity in service is not adequately supported, then a showing of
continuity after
discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1969 & 2008); App. Br., Appendix 1 (1969 version of
regulation).1
Continuity of symptomatology may be established if a claimant can
demonstrate (1) that a condition
was “noted” during service; (2) evidence ofpostservice 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. Savage, 10 Vet.App. at 495-96; see Hickson,
12 Vet.App. at 253
(lay evidence of in-service incurrence sufficient in some circumstances
for purposes of establishing
service connection); 38 C.F.R. § 3.303(b).
An RO decision that has become final may not be reversed or revised in the
absence of CUE.
See 38 U.S.C. § 5109A; Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-
98 (Fed. Cir. 2000)
5111(a). CUE is “a very specific and rare kind of error . . . that when
called to the attention of later
reviewers compels the conclusion, to which reasonable minds could not
differ, that the result would
have been manifestly different but for the error.” 38 C.F.R. § 20.1403 (
2006). CUE is established
when the following conditions have been met: First, either (1) the correct
facts contained in, or
constructively contained in, the record were not before the adjudicator,
or (2) the statutory or
regulatory provisions extant at the time were incorrectly applied. See
Damrel v. Brown, 6 Vet.App.
242, 245 (1995). Second, the alleged error must be “undebatable,” not
merely a “disagreement as
To support his service-connection claim in 1969, the appellant does not
argue that “chronicity in service” was
adequately supported, 38 C.F.R. § 3.303(b), but rather, relies on
evidence of continuity after discharge and the chronic
nature of his condition shown after discharge. See Reply at 2.
1
6

to how the facts were weighed or evaluated.” See Russell v. Principi, 3
Vet.App. 310, 313-14 (1992)
(en banc). Finally, the error must have “manifestly changed the outcome”
of the prior decision.
Russell, 3 Vet.App. at 313-14; see Bustos v. West, 179 F.3d 1378, 1380-81 (
Fed. Cir. 1999)
(expressly adopting the manifestly changed outcome language in Russell,
supra). Errors that cannot
constitute CUE, pursuant to 38 C.F.R. § 20.1403(d) (2007), include (1) a
changed diagnosis, where
“a new medical diagnosis ‘corrects’ an earlier diagnosis considered in a
Board decision”; (2) VA’s
failure to comply with the duty to assist; (3) a disagreement as to how
the facts were weighed; and
(4) a subsequent change in interpretation of the statute or regulation
that was applied in the Board
decision. See Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005);
Damrel, 6 Vet.App.
at 246.
There are two questions, relating to an allegation of CUE, where the Court
applies a de novo
standard of review: (1) Whether the appellant has presented a valid CUE
allegation; and (2) whether
an applicable law or regulation was not applied, or was not applied
correctly. See Andrews v.
Principi, 18 Vet.App. 177, 182 (2004), aff’d sub nom. Andrews v. Nicholson,
421 F.3d 1278 (Fed.
Cir. 2005). The Court’s review of a Board decision regarding an allegation
of CUE in a prior
decision is otherwise limited to whether the Board’s decision was ”
arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,” and whether the
decision is supported by
an adequate statement ofreasons or bases. 38U.S.C.§§7261(a)(3)(A), 7104(
d)(1); see also Livesay
v. Principi, 15 Vet.App. 165, 174 (2001) (en banc). “‘The scope of review
under the ‘arbitrary and
capricious’ standard is narrow and a court is not to substitute its
judgment for that of the [Board].'”
Elkins v. West, 12 Vet.App. 209, 216 (1999) (en banc) (quoting Motor
Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983)). A Board decision is
“arbitrary and capricious if the [Board] has relied on factors which
Congress has not
intended it to consider, entirely failed to consider an important aspect
of the problem,
offered an explanation for its decision that runs counter to the evidence
before the
agency, or is so implausible that it could not be ascribed to a difference
in view or
the product of [the Board’s] expertise.”
Id. at 217.
The 1969 RO decision denied service connection for solar urticaria. R. at
137. The RO
stated the following:
At VA examination veteran stated that he had onset of solar urticaria in
1952.
7

Service records show “hives when he sits out in the sun” on 5-12-52. The
veteran
has furnished no evidence concerning service incurrence, chronicity and
continuity.
Single isolated entry of 5-12-52 must be considered as acute manifestation
under
VAR 1380.
R. at 137. In the decision on appeal, the Board found that the RO’s
interpretation of the facts – that
there was no evidence of a chronic disease, no evidence that his condition
was incurred in service,
and no evidence of continuity – was not unreasonable and that the
appellant’s disagreement with the
interpretation of the facts does not constitute CUE. R. at 7. As noted
above, the appellant challenges the Board finding that the RO in 1969 correctly applied 38 C.F.R. § 3.303(a) and (b).
In the context of this CUE claim, the question is whether the 1969 RO
decision properly applied the applicable regulation, 38 C.F.R. § 3.303, to the lay evidence.
The decision noted some of the lay evidence and mentioned the VA examination, it is therefore clear that the lay evidence was
before the RO, despite the RO’s failure to discuss all of it explicitly.
See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (noting that, prior to enactment of Veterans’ Benefits Amendments of
1989, Pub. L. No. 101-237, 103 Stat. 2062 (1989), ROs were not required to set forth in detail the factual bases for their decisions); Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000) (“[A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO’s determination of the [sic] service connection must be presumed to have been reviewed . . . and no further proof of such review is needed.”). Had the RO not further characterized the state of the evidence, the central issue of this appeal would have been quite different.
In this case, however, the appellant has demonstrated that the RO did not correctly apply the law to the evidence. Although the RO in 1969 had the lay evidence before it, it declared that “[t]he veteran has furnished no evidence concerning service incurrence, chronicity and continuity.” R. at 137. From the RO’s explicit statement, it is clear that the RO gave no weight to the lay evidence. The RO did not say or indicate that the evidence was insufficient to find service incurrence or continuity of
symptomatology. Its declaration that there was “no evidence” leaves no
doubt that it incorrectly applied § 3.303, giving the lay evidence no consideration at all.
The Federal Circuit held that § 3.303(a), in addition to other statutory
and regulatory provisions, “make[s] clear” that “lay evidence is one type of evidence that must be considered, if
8

submitted, when a veteran’s claim seeks disability benefits.” Buchanan,
451 F.3d at 1335. The 1969 RO decision reveals that the RO improperly determined that the lay evidence was not entitled to
consideration when it stated that there was “no evidence” that the
appellant had the onset of urticaria in service and that there was no evidence of continuity of symptomatology.

The Board found that the RO “interpreted the facts as not showing solar urticaria as a chronic disease in service, or continuous from service, or incurred in service.” R. at 7. This statement reflects the Board’s view
that in 1969 the RO weighed the lay evidence and determined that such
evidence did not show service incurrence or continuity of symptomatology. However, that view is not consistent with the
express language used by the 1969 RO in its statement that there was “no evidence” of service incurrence or continuity. The Board’s view of the matter, therefore, reflects a legally untenable interpretation of the RO’s consideration of the evidence before it. From the RO’s explicit statement, the only interpretation is that the lay evidence did not (could not) constitute evidence. The RO’s interpretation of the law as shown by its statement is inconsistent with § 3.303(a), which expressly allows the establishing of service connection based on lay evidence.
Contrary to the Secretary’s position, the Federal Circuit’s discussion of § 3.303 in Buchanan, explaining that competent lay evidence can be sufficient to establish entitlement to disability benefits, did not announce a new interpretation of the regulation or represent a liberalizing change in VA law. Rather, the Federal Circuit’s discussion of the regulation as requiring VA to consider and weigh lay evidence was based on the “clear” language of the provisions in the regulation. Under the
regulation, an RO is required
to consider lay evidence as to both service incurrence and continuity of
symptomatology after discharge from service. 38 C.F.R. § 3.303(a), (b). The appellant’s challenge to the validity of the 1969 RO decision is thus far more than a “disagreement as to how the facts were weighed or evaluated,” which cannot support an assertion of CUE. Russell, 3 Vet.App. at 313-14. It is a challenge to the RO’s failure to consider lay evidence at all. The Court therefore holds that the Board’s decision finding no error in the 1969 decision did not comply with the law and was arbitrary and capricious.
The Court will remand to the Board the question whether the error was a “clear and unmistakable error” – i.e., whether, on the full record before the RO in 1969, the evidence establishes manifestly that the correction of the error would have changed the outcome and service
connection would have resulted. Other than the in-service May 1952 SMR entry noting that the
9

appellant gets hives when he sits out in the sun, the evidence before the
RO was (1) the November
1952 separation examination report noting the appellant’s sensitivity to
sunlight; (2) the appellant’s
May 1969 lay statements; and (3) the appellant’s statements to his doctors
and the VA examiner
regarding symptoms and onset. R. at 60, 76, 99, 105, 112-14, 121-25, 130.
The Board must make
this determination in the first instance because it does involve assigning
a weight to the evidence
of record, which includes consideration of the lack of evidence of
treatment for approximately 16
years following service (i.e., 1952 discharge to treatment in 1968) on the
credibility of the evidence
of continuity. See Savage, 10 Vet.App. at 496 (noting that “the lack of
evidence of treatment may
bear on the credibility of the evidence of continuity”). Accordingly, the
Court will remand for the
Board to determine whether the error made by the RO in 1969 was CUE, which
requires revision
of the 1969 RO denial of service connection. See Russell, 3 Vet.App. at
320 (remanding for Board
to determine whether error was CUE that required revision of an earlier RO
decision that denied
service connection).
On remand, the Board must also discuss the appellant’s second challenge to
the 1969 RO
decision–whether the RO in 1969 correctly applied VAR 1380, which
requires that the
determination “as to service incurrence or aggravation must be on the
whole evidentiary showing.”
The 1969 RO relied on the “single isolated entry” of May 12, 1952, in its
determination that VAR
1380 required the finding that there was an “acute manifestation” of the
condition in service. This
argument was raised to the Board and should be considered by the Board in
the first instance. See
Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000).
With respect to the remanded matters, the appellant is free to submit
additional evidence and
argument, 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). These matters are to be provided expeditious treatment on remand.
See 38 U.S.C. § 7112.
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
February 9, 2007,
Board decision is REVERSED as to the Board’s finding that the 1969 RO
decision did not contain
error in its application of § 3.303, and the CUE matter is REMANDED for
the Board to determine
whether, on the record before the RO in 1969, the evidence established
manifestly that correction
10

of the error would have changed the outcome–i.e., that an award of
service connection would have
resulted had the RO given weight to the lay evidence of record. Because
the Board failed to discuss
the contention that the RO erred in its application of VAR 1380, that
matter is REMANDED for the
Board’s consideration of that matter in the first instance.
DATED: February 3, 2009
Copies to:
Theodore C. Jarvi, Esq.
VA General Counsel (027)
11

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