Veteranclaims’s Blog

January 10, 2013

Single Judge Application, 3.303(b); Only Requires Consistent Postservice Reoccurrence of the Same Symptoms

Excerpt from decision below:
“Second, the Board’s statement that intermittent but continuous symptoms –i.e., back and hip pain that occurred “off and on” since service–can never establish continuity of symptoms under § 3.303(b) is overbroad. R. at 10. Contrary to the Board’s finding, continuity of symptoms under § 3.303(b) does not require that postservice symptoms be constant; it requires only the consistent postservice reoccurrence of the same symptoms experienced in service. For example, an episodic disability that occurs repeatedly after service may be subject to service connection via continuity of symptoms under § 3.303(b). See, e.g., Vanderpool v. Derwinski, 3 Vet.App. 273, 277-78 (1992)(remanding for the Board to consider whether the veteran’s episodic headaches could be service connected based on, inter alia, continuity of symptomatology). The record in this case contains evidence of such reoccurring, episodic symptoms, which the Board appears to have impermissibly rejected based on its misunderstanding of § 3.303(b). R. at 329 (September 2007 NOD describing “chronic” low back and bilateral hip conditions beginning in May 1986, which “continue[d] throughout [her] military career” and necessitated “continual care and treatment”), 171 (June 2008 report of a history of back and hip pain “off and on since the 1980s,” with episodes lasting one week at a time), 279 (July2008 report of back and hip pain beginning in 2005 that “comes and goes”), 166 (August 2008 report of a “history of low back pain going to both hips since [the] 1980s”), 141-42(August 2008 physical therapy records reflecting “constant”
low back pain that began in 2004),86-93
9

(May2009 Board hearing testimony reflecting back and hip pain since an in-
service incident in 1986 and exacerbated by the birth of her second child in 2005), 41 (December 2009 VA medical examination noting “back pain on and off since 1986″). The Board’s failure to properly consider that
potentially favorable evidence thus constitutes error. See Caluza, 7 Vet.
App. at 506.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3573
TABITHA L. LYLES, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Judge.

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

BARTLEY, Judge: Veteran Tabitha L. Lyles, who is self-represented, appeals
a July 26, 2011, Board of Veterans’ Appeals (Board) decision denying entitlement to
service connection for a
low back strain and a bilateral hip strain.1
Record (R.) at 3-13. 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 in this case. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26
(1990). For the reasons that follow, the Court will set aside the July
2011 Board decision and
remand the matter for further development, if necessary, and
readjudication consistent with this
decision.
I. FACTS
Ms. Lyles served on active duty in the U.S. Navy from December 1985 to
March 2006. R.
at 1117. Her service medical records (SMRs) reflect treatment for hip and
back pain, variously
diagnosed as mild muscle strain and musculoligamentous back pain. R. at
878 (May1986 complaint
The Board also remanded Ms. Lyles’s claimfor service connection for carpal
tunnel syndrome of the left wrist.
Because a remand is not a final decision of the Board subject to judicial
review, the Court does not have jurisdiction to
consider that claim at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (
Fed. Cir. 2000); Breeden v. Principi,
17 Vet.App. 475, 478 (2004); 38 C.F.R. § 20.1100(b) (2012).
1

of hip and low back pain), 876 (July 1992 complaint of low back pain),
775 (July 1999 report of a
history of low back pain), 739 (October 2004 complaint of postpartum back
pain), 886 (December
2005 report of a history of back spasms for which she did not seek
treatment), 889-90 (December
2005 report of a history of recurrent back pain and back spasms since an
August 2005 cesarean
section). However, no spine or musculoskeletal abnormalities were noted
upon her separation from
service. R. at 820-22.
In February 2007, within one year from separation from service, Ms. Lyles
filed a claim for
service connection for, inter alia, low back strain and bilateral hip pain.
R. at 416-26. She
underwent a VA medical examination for those conditions in April 2007. R.
at 372-77. Ms. Lyles
complained of low back pain, weakness, and stiffness, as well as bilateral
hip pain, weakness, and
instability (R. at 372-73), but x-rays taken at that time revealed a
normal lumbar spine and hips (R.
at 376-77). Based on those x-rays, as well as a physical examination, the
examiner diagnosed Ms.
Lyles with lumbar and bilateral hip strains. R. at 375.
Later that month, a VA regional office (RO) issued a decision denying
entitlement to service
connection for a low back strain and bilateral hip strain. R. at 356-67.
Ms. Lyles filed a timely
Notice of Disagreement (NOD) with that decision in September 2007, in
which she asserted that her
low back and bilateral hip conditions were “chronic and severe in nature,”
began in May 1986 and
“continue[d] throughout [her] military career,” and necessitated ”
continual care and treatment.” R.
at 329. She subsequently perfected her appeal.2
In the meantime, in October 2007, Ms. Lyles sought treatment for bilateral
hip pain of one
year’s duration. R. at 287. X-rays taken at that time revealed “[n]ormal
hips,”and she was diagnosed
with a “chronic sacroiliac sprain.”3
R. at 289-90.
The Court notes that the record of proceedings does not contain the pages
cited in the Secretary’s brief
regarding the filing of a Substantive Appeal. See Secretary’s Brief (Br.)
at 4 (citing R. at 240-45). The Court advises
the Secretary to take greater care in compiling the record of proceedings,
particularly in appeals with self-represented
appellants. See U.S. VET. APP. R. 28.1(a) (requiring the Secretary to
prepare and file the record of proceedings).
“Sacroiliac” “denot[es] the joint or articulation between the sacrum and
ilium and the ligaments associated
therewith.” DORLAND’SILLUSTRATEDMEDICALDICTIONARY1662 (32d ed. 2012) [
hereinafter DORLAND’S]. The sacrum
is “the triangular bone just below the lumbar vertebrae.” Id. The “ilium”
or “iliac bone” is “the expansive superior
portion of the ox coxae (hip bone).” Id. at 1341.
3
2
2

During a June 2008 neurological examination, Ms. Lyles reported a history
of low back pain
“off and on since the 1980s,” which “goes to both hips.” R. at 171. She
was diagnosed with
intermittent cervical spine pain, intermittent low back pain with
radiation to the hips, and a history
of bursitis of both hips. R. at 173.
The following month, Ms. Lyles sought further treatment for bilateral
sacroiliac joint pain
that “comes and goes,” which began after the birth of her second child in
2005. R. at 279. She was
diagnosed with a back strain in the sacroiliac region. R. at 280.
In August 2008, Ms. Lyles underwent another neurological examination,
wherein she
reported a “history of low back pain going to both hips since [the] 1980s.”
R. at 166. A review of
past x-rays revealed a normal cervical and lumbar spine, and Ms. Lyles was
again diagnosed with
intermittent cervical spine pain, intermittent low back pain with
radiation to the hips, and a history
of bursitis of both hips. R. at 167. Later that month, Ms. Lyles began a
physical therapy program
to treat her lumbago, which she described as a “constant” low back pain
that began four years
earlier.4
R. at 141-42.
In May2009, Ms. Lyles was again treated for low back and hip pain. R. at
144. X-rays taken
the following month indicated that her spine was normal. R. at 145.
Later that month, Ms. Lyles testified at a Board hearing. R. at 67-101.
She stated that her
back and hip pain began in service in 1986 after she jumped onto a
refueling probe, and was
exacerbated by lifting and carrying boxes of paper. R. at 86-87. She
further explained that her back
pain became “debilitating” after the birth of her second child in 2005. R.
at 87. Military doctors
initiallycharacterized herincreasedsymptoms aspostpartumpain,
despiteherreports ofhavingbeen
“pricked with a needle during an epidural.” R. at 88. According to Ms.
Lyles, her low back and hip
pain continued after service and she sought treatment for those conditions
as early as September
2006. R. at 88-93.
In November 2009, the Board issued a decision that, in pertinent part,
remanded her claims
for serviceconnection forlowbackandbilateral hip strains for
furtherdevelopment, including a new
VA medical examination addressing the etiology of those conditions. R. at
52-64.
4
Lumbago is “a nonmedical term for any pain in the lower back.” DORLAND’S
at 1076.
3

Ms. Lyles attended that examination in December 2009. R. at 41-44. After
reviewing her
claims file, obtaining a subjective medical history, and performing a
physical examination, the
examiner diagnosed Ms. Lyles with a lumbosacral strain, bilateral
sacroiliac joint dysfunction, and
bilateral trochanteric bursitis.5
R. at 41-42. The examiner opined that it was “less likely as not” that
Ms. Lyles’s low back and bilateral hip disabilities were incurred in or
aggravated by service. R. at
43. The examiner provided the following rationale for his opinion:
The service treatment records indicated the veteran complained of back
spasms after
her C-section, but do not necessary [sic] indicate the presence of a
chronic ongoing
problem with her back. There is no medical treatment since 09/07/1992 for
low back
pain during service. The veteran was also seen on one occasion for left
hip pain, on
05/06/1986, and was diagnosed with a mild muscle strain. Thus, there is a
lack of
clinical evidence to support the veteran’s claim that her low back and hip
disabilities
were incurred in or aggravated by service.
R. at 43-44.
In July 2011, the Board issued the decision currently on appeal, which
denied entitlement to
service connection for a low back strain and a bilateral hip strain. R. at
3-13. The Board first found
that “any statements of record made by the Veteran claiming that her
disabilities were the result of
an injury in service are not competent evidence of her disorders’
etiologies as the Veteran is a lay
person without the medical expertise to render such a diagnosis.” R. at 9-
10 (citing Espiritu v.
Derwinski, 2 Vet.App. 492, 494-95 (1992)). The Board therefore afforded
her statements “little
weight,” instead favoring the negative nexus opinion from the December
2009 VA medical
examiner. R. at 10. The Board also found that Ms. Lyles’s statements of
continuing back and hip
pain since service did not establish continuity of symptoms because ”
several treatment records
indicate that her pain was ‘off and on’ rather than continuous since her
discharge from active military
service.” Id. Consequently, the Board found that the preponderance of the
evidence was against her
claims. R. at 10-11. This appeal followed.
5
“Trochanteric” refers to the “hip region.” DORLAND’S at 1618.
4

II. ANALYSIS
A. Claims on Appeal
Asan initial matter, the Court notes that Ms. Lyles’s
informalbriefreferstoclaimsforservice
connection for carpal tunnel syndrome of the right wrist, chronic rhinitis,
and chronic sinusitis, none
of which were the subject of the Board decision currentlyon appeal. See
Appellant’s Br. at 1-2. Ms.
Lyles was awarded service connection for carpal tunnel syndrome of the
right wrist in September
2008 (R. at 207-14) and for chronic rhinitis (also claimed as chronic
sinusitis) in November 2009
(R. at 52-64). The record does not indicate that she disagreed with the
disability evaluations or
effective dates assigned for those conditions and, therefore, those issues
are not in appellate status.
See Holland v. Gober, 10 Vet.App. 433, 436 (1997) (holding that a claimant
must file an NOD
following an award of service connection if he or she wishes to appeal the
downstream elements of
disability evaluation or effective date (citing Grantham v. Brown, 114 F.
3d 1156, 1158 (Fed. Cir.
1997))).
A review of the June 2011 brief that Ms. Lyles’s veterans service
organization
representative submitted to the Board confirms that she did not wish to
appeal any aspect of the
decisions awarding service connection for carpal tunnel syndrome of the
right wrist, chronic rhinitis,
or chronic sinusitis. R. at 16-19 (failing to mention those conditions and
listing the issues on appeal
as “Did the agency of original jurisdiction (AOJ) err when it denied
service connection for low back
strain? Did the AOJ err when it denied service connection for bilateral
hip strain? Did the AOJ err
when it denied service connection for carpal tunnel syndrome of the left
wrist?”); see Fenderson v.
West, 12 Vet.App. 119, 130 (1999) (examining the contents of a brief
submitted to the Board to
discern whether certain issues had been appealed). Absent a final Board
decision addressing the
awards of service connection for carpal tunnel syndrome of the right wrist
and chronic rhinitis (also
claimed as chronic sinusitis), the Court lacks jurisdiction to address Ms.
Lyles’s arguments related
to those claims. See Howard, 220 F.3d at 1344.
Likewise, Ms. Lyles’s informal brief also contains arguments pertaining to
her claim for
service connection for carpal tunnel syndrome of the left wrist, which was
remanded by the Board.
See Appellant’s Br. at 1-2. As explained in footnote 1, supra, a Board
remand is not a final decision
of the Board over which the Court has jurisdiction. See Howard, 220 F.3d
at 1344; Breeden,
5

17 Vet.App. at 478; 38 C.F.R. § 20.1100(b). Therefore, the Court is also
precluded from addressing
arguments related to that claim.
The only claims that the Board finally decided in the July 2011 decision
currently on appeal
are for service connection for low back and bilateral hip strains. R. at 3-
13. The Court therefore has
jurisdiction to review the Board’s decision on those claims.
B. Service Connection for Low Back and Bilateral Hip Strains
Ms. Lyles asserts that the Board’s statement of reasons or bases for its
decision was
inadequate. Specifically, she expresses confusion as to why her back and
hip disabilities were not
consideredchronicdisabilitiesunder38C.F.R.§3.303(b)andwhytheBoard
rejectedherstatements
of continuity of symptoms. See Appellant’s Br. at 1-2. The Court agrees
that the Board failed to
adequately explain its findings on those issues.
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability, (2) incurrence or aggravation of a
disease or injury in service,
and (3) a nexus between the claimed in-service disease or injury and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v.
Principi, 381 F.3d 1163,
1166-67 (Fed. Cir. 2004). However, service connection may also be
established by demonstrating
chronicity or continuity of symptoms. See Rose v. West, 11 Vet.App. 169,
171 (1998); Savage v.
Gober, 10 Vet.App. 488, 495-98 (1997); 38 C.F.R. § 3.303(b) (2012). The
Board’s determination
regarding entitlement to service connection is a finding of fact that the
Court reviews under the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Swann
v. Brown, 5 Vet.App.
229, 232 (1993). “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)).
In rendering its decision, the Board is required to provide a written
statement of 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 Board’s statement of reasons or
bases must be adequate to
enable a claimant to understand the precise basis for the Board’s decision
and to facilitate review in
this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with
this requirement, the
6

Board must analyze the credibilityand probative value of the evidence,
account for the evidence that
it finds to be persuasive or unpersuasive, and provide the reasons for its
rejection of any material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (
1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board is also required to
consider and discuss all
applicable provisions of law and regulation in its decision. 38 U.S.C. §
7104(a); see Schafrath v.
Derwinski, 1 Vet.App. 589, 593 (1991).
1. Chronicity
In the instant case, the Board did not expressly address whether Ms.
Lyles’s back and hip
disabilities were chronic disabilities subject to service connection under
§ 3.303(b), despite her
assertions
thatthosedisabilitieswerechronicanddespiteevidencethatreasonablyraisedthat.
See Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board
is required to consider
all theories of service connection that are reasonably raised by the
claimant or the evidence of
record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
2009). Specifically, in the
NOD that precipitated this appeal, Ms. Lyles described her low back and
bilateral hip disabilities as
“chronic and severe in nature.” R. at 329. The record contains evidence of
back and hip pain
beginning in May 1986 and continuing throughout and after service (R. at
86-93, 141-42, 144, 166-
67, 171, 173, 279-80, 287, 739, 775, 876, 878, 886, 889-90), as well as a
postservice diagnosis of
a “chronic sacroiliac sprain” in October 2007 (R. at 289). See Savage, 10
Vet.App. at 495 (holding
that “evidence contemporaneous with service or the presumption period or
evidence that is post
service or post presumption period may suffice” to establish a chronic
disability). Although a
“diagnosis including the word'[c]hronic'” in and of itself is not
sufficient to establish that a condition
is chronic, such a diagnosis, alongwith repeated
manifestationsofadisabilityin service, is sufficient
to raise the issue of service connection based on a theory of chronicity.
38 C.F.R. § 3.303(b) (“For
the showing of chronic disease in service thereis required a combination
of manifestations sufficient
to identify the disease entity, and sufficient observation to establish
chronicity at the time, as
distinguished from merely isolated findings or a diagnosis including the
word ‘[c]hronic.'”).
The Court is unpersuaded by the Secretary’s contention that “the medical
evidence does not
indicate that [Ms. Lyles]’s conditions could be considered chronic.”
Secretary’s Br. at 12. That
argument is premised on the Secretary’s interpretation of the medical and
lay evidence of record,
7

which amounts to nothing more than an impermissible post hoc
rationalization for the Board’s
actions. See Doty v. United States, 53 F.3d 1244, 1251 (Fed. Cir. 1995) (”
‘Courts may not accept
appellate counsel’s post hoc rationalizations for agencyaction. It is well
established that an agency’s
action must be upheld, if at all, on the basis articulated bythe
agencyitself.'” (quoting Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 50 (1983))).
Moreover,theSecretary’s relianceontheDecember2009VAmedicalexaminer’s
conclusion
that Ms. Lyles’s treatment records “did not indicate ‘a chronic ongoing
problem with her back'” is
misplaced because the examiner’s opinion is equivocal as to the presence
of a chronic disability.
Secretary’s Br. at 12 (quoting R. at 44). That opinion states that Ms.
Lyles’s servicetreatment records
“do not necessar[il]y indicate the presence of a chronic ongoing problem
with her back” (R. at 43-44
(emphasis added)), which implies equally that her service treatment
records do not necessarily
preclude a finding that her back disability is chronic. See Obert v. Brown,
5 Vet.App. 30, 33 (1993)
(stating that a medical opinion stating that a claimant “may” have been
showing symptoms implied
that the claimant “may not” have been showing symptoms). Thus, the
December 2009 VA medical
opinion is speculative, and therefore inadequate, with regard to the issue
of the presence of a chronic
low back disability, and the Secretary may not rely on it to support his
argument.6
See Bloom v.
West, 12 Vet.App. 185, 187 (1999) (holding that a medical opinion phrased
in speculative terms is
inadequate); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (same).
Accordingly,theCourt concludes
thattheBoardprovidedaninadequatestatementofreasons
or bases for its decision to deny Ms. Lyles service connection for low
back and bilateral hip strains
because it failed to address the reasonably raised issue of whether those
disabilities were chronic.7
The December 2009 VA medical opiniondoes not contain a similar discussion
of whether Ms. Lyles’s bilateral
hip strain is a chronic disability.
The Court notes that the Board addressed whether Ms. Lyles’s lay
statements established continuity of
symptoms, whichitwould not have been required to do unless it found that
her back and hip disabilities were not chronic.
See 38 C.F.R. § 3.303(b) (“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.”). Evenifthe Board’s discussion of continuityof symptoms
evinces an implicit finding that those disabilities
were not chronic, the Court would nevertheless find the Board’s statement
of reasons or bases inadequate because it did
not provide any explanation for this finding, including why it rejected
the potentially favorable evidence of chronicity
outlined above. See Caluza, 7 Vet.App. at 506.
7
6
8

See Previous DocumentMassieNext Document v. Shinseki, 25 Vet.App. 123, 129 (2011) (citing Robinson, 557
F.3d at 1362); Schafrath,
1 Vet.App. at 593; Gilbert, 1 Vet.App. at 57.
2. Continuity of Symptoms
The Board found that the evidence of record did not establish continuity
of Ms. Lyles’s back
and hip symptoms because she only “sporadically sought treatment for back
and hip pain after
service” and “several treatment records indicate that her pain was ‘off
and on’ rather than continuous
since her discharge from active military service.” R. at 10. The Court
discerns several errors in this
analysis.
First, “symptoms, not treatment, are the essence of any evidence of
continuity of
symptomatology.” Savage, 10 Vet.App. at 496. Therefore, to the extent that
the Board focused on the continuity of Ms. Lyles’s postservice treatment, rather than the continuity of her postservice back and hip pain, it committed error.
Second, the Board’s statement that intermittent but continuous
symptoms–i.e., back and hip pain that occurred “off and on” since service–can never establish continuity of symptoms under § 3.303(b) is overbroad. R. at 10. Contrary to the Board’s finding, continuity of symptoms under § 3.303(b) does not require that postservice symptoms be constant; it requires only the consistent postservice reoccurrence of the same symptoms experienced in service. For example, an episodic disability that occurs repeatedly after service may be subject to service connection via continuity of symptoms under § 3.303(b). See, e.g., Vanderpool v. Derwinski, 3 Vet.App. 273, 277-78 (1992)(remanding for the Board to consider whether the veteran’s episodic headaches could be service connected based on, inter alia, continuity of symptomatology). The record in this case contains evidence of such reoccurring, episodic symptoms, which the Board appears to have impermissibly rejected based on its misunderstanding of § 3.303(b). R. at 329 (September 2007 NOD describing “chronic” low back and bilateral hip conditions beginning in May 1986, which “continue[d] throughout [her] military career” and necessitated “continual care and treatment”), 171 (June 2008 report of a history of back and hip pain “off and on since the 1980s,”with episodes lasting one week at a time), 279 (July 2008 report of back and hip pain beginning in 2005
that “comes and goes”), 166 (August 2008 report of a “history of low back pain going to both hips since [the] 1980s”), 141-42 (August 2008 physical therapy records reflecting “constant” low back pain that beganin 2004),86-93
9

(May2009 Board hearing testimonyreflecting back and hip pain since an in-
service incident in 1986
and exacerbated by the birth of her second child in 2005), 41 (December
2009 VA medical
examination noting “back pain on and off since 1986”). The Board’s failure
to properlyconsider that
potentially favorable evidence thus constitutes error. See Caluza, 7 Vet.
App. at 506.
The Secretary argues that any error in the Board’s continuity-of-symptoms
analysis was
harmless because, “even if [Ms. Lyles] had demonstrated continuity of
symptomatology, she still
needed to present competent, credible evidence of a link between this
symptomatologyand service,”
which she failed to do. Secretary’s Br. at 13 (citing Savage, 10 Vet.App.
at 495-96). The Secretary’s
argument is incorrect for two reasons. First, in order to establish
continuity of symptoms, a claimant
must demonstrate “a nexus between the present disability and the
postservice symptomatology” that
has continued since service, not a nexus between the symptoms and service.
Barr v. Nicholson,
21 Vet.App. 303, 307 (2007) (citing Savage, 10 Vet.App. at 495-96); 38 C.F.
R. § 3.303(b) (when
chronicityin serviceisnotadequatelysupported,continuityofsymptoms
afterdischargeisrequired).
Second, although the Board found that “the record does not contain a
competent medical opinion
linking the disabilities to the Veteran’s military service” (R. at 10-11),
that finding is premised on
the Board’s categorical rejection of Ms. Lyles’s lay statements regarding
the etiology of her current
low back and bilateral hip disabilities. Specifically, the Board
acknowledged Ms. Lyles’s statements
that those disabilities were the result of in-service injuries, but
determined that she was not
competent to provide an etiological opinion solely because she was a lay
person. R. at 9-10 (“[A]ny
statements of record made by the Veteran claiming that her disabilities
were the result of an injury
in service are not competent evidence of her disorders’ etiologies as the
Veteran is a lay person
without the medical expertise to render such a diagnosis.” (citing, inter
alia, Espiritu, 2 Vet.App. at
494-95)); R. at 10 (“Because the Veteran is not professionally qualified
to offer an etiological
opinion, her statements are afforded little weight as to the cause of her
back and hip disabilities.”).
This view, however, has been soundly rejected by this Court and the U.S.
Court of Appeals
for the Federal Circuit. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (
Fed. Cir. 2009) (stating that
a lay person is not categorically incompetent to opine as to a nexus
between a current disability and
service); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (
rejecting as “too broad”
theCourt’sconclusionthatmedicalevidenceis
requiredwhenthedeterminativeissueinvolves either
10

medical etiologyor a medical diagnosis); Kahana v. Shinseki, 24 Vet.App.
428, 435 (2011) (holding
that the Board’s “categorical rejection” of lay evidence as not competent
to establish the cause of a
disability rendered its statement of reasons or bases inadequate). The
Board’s failure to engage in
the proper analysis as to the existence of nexus evidence undermines the
Board’s finding that Ms.
Lyles had not presented evidence sufficient to connect her postservice
back and hip symptoms with
her current back and hip disabilities, see Savage, 10 Vet.App. at 497 (
holding that lay evidence may
be competent to establish the necessary relationship between a current
disability and continuing,
postservice symptoms), and thus prevents the Court from concluding that
the foregoing errors were
harmless, see 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due
account of the rule of
prejudicial error”).
Consequently, the Court concludes that the Board’s erroneous treatment of
Ms. Lyles’s lay
statements regarding continuity of symptoms also rendered its statement of
reasons or bases
inadequate. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
Remand of her claims for
service connection for low back and bilateral hip strains is therefore
warranted. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (“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, a remand is the appropriate remedy.”). Onremand,Ms.
Lylesisfreeto submit additional
argument and evidence in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999)
(per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The
Court reminds the Board
that “[a] remand is meant to entail a critical examination of the
justification for [the Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be
performed in an
expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the July 26, 2011, Board decision is
SET ASIDE and
the matter is REMANDED for furtherdevelopment, if necessary, and
readjudication consistent with
this decision.
DATED: December 13, 2012
11

Copies to:
Tabitha L. Lyles
VA General Counsel (027)
12

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