Veteranclaims’s Blog

February 23, 2010

Lay Evidence, Giusto v. Shinseki, No. 08-1501, Board Must Analyze Lay Evidence, Not Just List It; Abernathy v. Principi, 3 Vet.App. 461, 465(1992);

This is a Memorandum Decision but ti presents a Lay evidence argument that might be of value:

Mr. Giusto argues that the Board did not address the competency of the lay evidence, instead simply listing evidence rather than analyzing it. Here again, Mr. Giusto is correct.
In its decision, the Board never determined whether the lay testimony regarding diabetes mellitus and onychomycosis was credible or probative. The Board never stated whether it placed greater weight on one piece of evidence over another. Instead, the Board simply listed the evidence in the record.
This method of analysis is improper in light of Abernathy v. Principi, where the Court vacated a Board decision that “merely listed evidence that it had considered in deciding [the]claim under the EVIDENCE section in its decision without discussing most of that evidence.” 3 Vet.App. 461, 465
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(1992). The Board likewise violated the Court’s instructions in Gilbert v. Derwinski, where the Court required the Board to “identify those findings that it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations.” 1 Vet.App. at 57. Because the Board merely listed the evidence, without analyzing it, the Board did not provide an adequate statement of reasons and bases.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1501
LOUIS C. GIUSTO, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.

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

DAVIS, Judge: U.S. Navy veteran Louis C. Giusto appeals through counsel
from a July 24,
2007, Board of Veterans’ Appeals (Board) decision that denied service
connection for diabetes
mellitus, type II; hypertension; onychomycosis of the left fingernails and
both feet; and peripheral
neuropathy of the left and right lower extremities, to include as
secondary to diabetes mellitus, type
II. This 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. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will set aside the Board’s
July 24, 2007, decision and
remand all matters for further development and readjudication consistent
with this decision.

I. ANALYSIS
A. Reasons and Bases
Mr. Giusto first argues that the Board’s statement of reasons and bases
for its decisions regarding his claims for diabetes mellitus and onychomycosis is inadequate.
The Board’s decision must include a written statement of the reasons and bases for its findings and conclusions on all material issues of fact and law presented on the record. That 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 any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Giusto argues that the Board dismissed lay evidence because no other
evidence in the record supported it. In its decision, the Board stated:
The veteran has asserted that he was diagnosed with out of control blood
sugars just prior to service discharge and also that a physician told him that he had nail fungus, but there is no supporting evidence of either in the record. Without any other evidence of continuity of [symptomatology], the record does not support a finding that diabetes mellitus and onychomycosis are related to service.
Record (R.) at 9-10. While this analysis by the Board is somewhat unclear,
it likely runs afoul of the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit) holding in Buchanan v.
Nicholson, where thecourt stated that “the Board cannot determine that
lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.” 451 F.3d 1331, 1337(Fed. Cir. 2006). The Board can consider the lack of contemporaneous medical records and weigh
it against a veteran’s lay evidence, but “the lack of such records does
not, in and of itself, render lay evidence not credible.” Id. at 1336. It appears that the Board dismissed the lay evidence simply because it was not corroborated by contemporaneous medical evidence, which is violative of Buchanan.
Simliarly, Mr. Giusto argues that the Board did not address the competency
of the lay evidence, instead simply listing evidence rather than analyzing it. Here again, Mr. Giusto is correct.
In its decision, the Board never determined whether the lay testimony regarding diabetes mellitus and onychomycosis was credible or probative. The Board never stated whether it placed greater weight on one piece of evidence over another. Instead, the Board simply listed the evidence in the record.
This method of analysis is improper in light of Abernathy v. Principi,
where the Court vacated a Board decision that “merely listed evidence that it had considered in deciding [the]claim under the EVIDENCE section in its decision without discussing most of that evidence.” 3 Vet.App. 461, 465
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(1992). The Board likewise violated the Court’s instructions in Gilbert v.
Derwinski, where the Court required the Board to “identify those findings that it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations.” 1 Vet.App. at 57. Because the Board merely listed the evidence, without analyzing it, the Board did not provide an adequate statement of reasons and bases.
Mr. Giusto further argues that the Board failed to address the competency
of his lay evidence because it found that Mr. Giusto was addressing the etiology of his diabetes. Mr. Giusto argues, however, that he was simply relating information conveyed to him by his treating physicians in 1955.
In his May 24, 2006, hearing before the Board, Mr. Giusto made statements
including the following: I was supposed to get released. They sent me to (inaudible) station, naval station, to be released from service, and I again took a medical [test] and they called me in and they said we can’t discharge you because your blood sugars are too high and [The doctor said] did you serve in the Pacific at any time? I said yes, I did. I was in Korea, I was in Japan for three months, you know, and (inaudible). I was all over the place. And because he said that he saw my teeth, he said you know, that’s why I asked you because a lot of guys that come from the Pacific end up with
this they call this fungus, you know. . . . I remember him asking me that, you know.
(R. at 37, 43, respectively). In Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007), the Federal Circuit held: “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when . . . the layperson is reporting a contemporaneous medical diagnosis.” Therefore the Board should have analyzed the credibility and probative value of Mr. Giusto’s statements regarding
what treating physicians told him regarding diabetes mellitus and nail
fungus in 1955.
Mr. Giusto’s final argument pertaining to reasons and bases is that the
Board did not consider that nail fungus may be capable of lay observation. In fact, the Board did not discuss lay observation at all. Lay testimony is competent to establish the presence of observable symptomatology. See Layno v. Brown, 6 Vet.App. 465, 469 (1994). If the information comes to the layperson through his or her senses, then the layperson has personal knowledge of the information. Id.
The Board did not determine whether nail fungus is a condition capable of
lay observation. See Layno, 6 Vet.App. at 469; see also Jandreau, 492 F.3d at 1377 (stating that “lay evidence may
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be competent and sufficient to establish a diagnosis of a condition when
. . . lay testimony describing symptoms at the time supports a later diagnosis by a medical professional”). For this reason, as well as those discussed above, the Court determines that the Board failed to provide an adequate statement
of reasons and bases for its decisions regarding the claims for diabetes
mellitus and onychomycosis.
The Court will therefore remand the diabetes mellitus and nail fungus
issues for readjudication, to include a more adequate statement of reasons and bases and a determination as to whether nail fungus is capable of lay observation.
On remand, Mr. Giusto will be free to submit additional evidence and
argument in supportof his claims for service connection, and the Board is required to consider any such evidence and argument.1
See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the
Board following the remand herein ordered will constitute a new decision that,
if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not
later than 120 days after
the date on which notice of the Board’s new final decision is mailed to Mr.
Giusto. See Marsh v.
West, 11 Vet.App. 468, 472 (1998).
B. Duty To Assist
Mr. Giusto next argues that the Board erred in determining that VA
fulfilled its duty to assist
him in developing his claims for diabetes mellitus and onychomycosis.
Specifically, Mr. Giusto
argues that VA should have made additional requests for service medical
records when blood tests
from his discharge examination were not included in the records the
National Personnel Records
Center (NPRC) sent to the regional office (RO). Mr. Giusto asserts that
the missing service medical
records can demonstrate that his blood sugar levels were high at his time
of discharge from the Navy.
The Secretary responds that Mr. Giusto has not shown the existence of
prejudicial error.
The Secretary is required to make reasonable efforts to assist a claimant
in obtaining the evidence and information necessary to substantiate the claim unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A(a)(1)-(2). In a
The Court notes that it is unable to consider the June 2, 2006, doctor’s
letter that Mr. Giusto attached to his
Notice of Appeal. The Court is precluded by statute from considering any
material that was not contained in the “record
of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b);
see also Velez v. West, 11 Vet.App. 148, 152
(1998); Brock v. Brown, 10 Vet.App. 155, 159 (1997). Because this newly
presented letter was not in the record before
the Board, the Board committed no error by failing to consider it. Caffrey
v. Brown, 6 Vet.App. 377, 383 (1994).
1
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claim for compensation,such as ,
the assistance includes obtaining relevant records,including
service medical records. See 38 U.S.C. § 5103A(c)(1). The Secretary’s
efforts to obtain federal
records must continue until they are obtained, or it is reasonably certain
that they do not exist, or
further efforts to obtain records would be futile. See 38 U.S.C. § 5103A(
b)(3). VA can conclude that
“no further efforts are required” in situations such as one where “the
Federal department or agency
advises VA that the requested records do not exist or the custodian does
not have them.” 38 C.F.R.
§ 3.159(c)(2) (2009). VA must make “as many request as necessary to
obtain relevant records from
a Federal department or agency.” 38 C.F.R. § 3.159(c)(2).
The blood test records in question were not included in the service
medical records the NPRC
provided to the RO. Mr. Giusto questioned their absence and asked that
they be requested again.
R. at 33, 51, 89. There is no indication that the RO did so or that the RO
took any additional steps
to determine whether the records exist. The Board concluded, “the [NPRC]
did not indicate that any
records were unavailable, and the NPRC is the proper repositoryfor those
records. Accordingly, VA
has met its duty to assist.” R. at 6.
The Board erred in determining that VA had fulfilled its duty to assist.
There is no indication
that VA submitted more than one request for Mr. Giusto’s service medical
records, despite his
repeated requests. Therefore the Board could not have determined that it
was reasonably certain that
the records did not exist or that further efforts to obtain records would
be futile. See 38 U.S.C.
§ 5103A(b)(3). It is true that NPRC is the proper repository for the
records, as the Board stated, but
there is no indication that NPRC determined that the records do not exist
or that NPRC does not have
them. See 38 C.F.R. § 3.159(c)(2). VA did not make “as many requests as
necessary to obtain [the]
relevant records,” as required by 38 C.F.R. § 3.159(c)(2). It was
therefore error for the Board to
determine that VA had met its duty to assist. The Court will therefore
remand the duty to assist issue
for further requests of medical records or a statement of futility.
C. Intertwined Claims
Mr. Giusto asserts that a remand of the diabetes mellitus claim
necessitates a remand for the
claims for peripheral neuropathyand hypertension, both secondaryto
diabetes mellitus, as the claims
areinextricablyintertwined. Mr. Giusto argues that “peripheral
neuropathyandhypertensionarewell
known residuals of diabetes” (Appelleant’s Brief at 12), and that a VA
medical examiner has
5

diagnosed his peripheral neuropathy as secondary to diabetes mellitus (R.
at 101). The Secretary has
not submitted any arguments with respect to this assertion.
Because the claims for peripheral neuropathy and hypertension are
secondary to the claim for
service connection for diabetes mellitus, which the Court is remanding,
judicial economy would be
served by remanding these claims as well. See Smith v. Gober, 236 F.3d
1370, 1372 (Fed. Cir. 2001)
(stating that “because the underlying facts of the two claims are so
intimatelyconnected, we conclude
that, in the interest of judicial economy and avoidance of piecemeal
litigation, they should be
appealed together”).
II. CONCLUSION
Based on consideration of the foregoing, the Court SETS ASIDE the Board’s
July 24, 2007,
decision and REMANDS all matters for further development and
readjudication consistent with this
decision.
DATED: November 30, 2009
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)
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