Veteranclaims’s Blog

December 6, 2010

Competent Lay Evidence of Continuity of Symptomatology, Then No Medical Evidence Required, Savage v. Gober

The quote used here by Judge Kasold, citing Savage, is a very important one stating that “if lay person’s observation of continuity of symptomatology is competent, no medical evidence is required to prove nexus”, especially when considered along with Barr.

===============================
Quote from the Single Judge, Memorandum Decision below:

“The Board failed to assess the credibility of Mr. Richardson’s testimony of continued symptoms since his head injury in service. Although the Board noted a lapse of corroborating evidence for at least 10 years after Mr. Richardson left service, the record reflects that he stated he did not seek medical care during this period because of limited finances, among other factors. See Record (R.) at 463-64, 556. The Board failed to explain why Mr. Richardson’s testimony on this matter was not credible, and if credible, why it did not adequately explain the lack of corroborating medical evidence. See Allday, supra. The Board’s error is significant because, if credible, Mr. Richardson’s testimony could establish continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (lay testimony “may provide sufficient support for a claim of service connection”) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)); Hickson v. West, 12 Vet.App. 247, 253 (1999) (noting that continuity of symptomotology may be shown by medical evidence or lay testimony); Savage v. Gober, 10 Vet.App. 488, 497 (1997) (holding that, if lay person’s observation of continuity of symptomatology is competent, no medical evidence is required to prove nexus).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-1384
ESAU RICHARDSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KASOLD, Chief Judge.

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

KASOLD, Chief Judge: Veteran Esau Richardson appeals through counsel a March 24, 2009,decision of the Board of Veterans’ Appeals (Board) that denied serviceconnection for blackout spells with sudden loss of consciousness, found no current seizure disorder, and remanded for more information regarding headache disorder.1
Mr. Richardson contends that the Board erred by failing to construe his claim as one for benefits for residuals of a traumatic brain injury (TBI), and, alternatively, that it made multiple errors in adjudicating his claim for benefits for blackout spells and loss of consciousness. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the Board’s decision will be set aside and the matters remanded for further adjudication. Whether or not Mr. Richardson’s claim for benefits should be evaluated pursuant to procedures established by the Secretary for TBI is a matter for decision below. Here, the applicability of these procedures is reasonably raised by the record, which reflects that Mr. Richardson suffered a head injury while in service, with resultant episodes of loss of consciousness,

Though Mr. Richardson does not argue that the remand was improper, he does aver that the Board should not have evaluated the headache disorder separately. See infra.
1

headaches, confusion, and two years of duty limitations where sudden loss of consciousness could be dangerous to himself or others. Moreover, the VA medical examination reports relied on by the Board were prepared prior to the TBI procedures established in 2008 by the Secretary. See 38 C.F.R. § 4.124a (2010). The Board’s failure to discuss the possible applicability of the TBI procedures frustrates judicial review and remand is warranted. Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand appropriate “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”); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s 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”); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board must consider and discuss all applicable provisions of law and regulation where they are made “potentially applicable through the
assertions and issues raised in the record”). Because it is possible the Board could determine the TBI procedures do not apply, it is appropriate to address Mr. Richardson’s alternative assertions of error. See Dambach v. Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000) (where it is to the benefit of both parties and the system of claims adjudication, and Board errors are reasonably susceptible of repetition, judicial review may be undertaken to help avoid delay and repetition); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009)
(same).
The record supports Mr. Richardson’s arguments regarding additional Board error. The Board failed to assess the credibility of Mr. Richardson’s testimony of continued symptoms since
his head injury in service. Although the Board noted a lapse of
corroborating evidence for at least 10 years after Mr. Richardson left service, the record reflects that he
stated he did not seek medical
care duringthis period because of limited finances, among otherfactors.
See Record (R.) at 463-64,
556. The Board failed to explain why Mr. Richardson’s testimony on this
matter was not credible, and if credible, why it did not adequately explain the lack of corroborating medical evidence. See Allday, supra. The Board’s error is significant because, if credible, Mr. Richardson’s testimony could establish continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (lay testimony “may provide sufficient support for a claim of service connection”) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)); Hickson v. West, 12 Vet.App. 247, 253 (1999) (noting that continuity of symptomotology may be shown by medical evidence or lay testimony); Savage v.

Gober, 10 Vet.App. 488, 497 (1997) (holding that, if lay person’s
observation of continuity of symptomatology is competent, no medical evidence is required to prove nexus).

The Board also failed to address Mr. Richardson’s argument regarding Dr. Anderson’s qualifications. Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board is required to consider all
issues raised either by the claimant or by the evidence of record). Mr. Richardson raised this issue in his brief to the Board, writing: “Dr. Anderson is a specialist in public health and occupational medicine according to his South Carolina licensing records; he is not expert in neurology or head trauma.” R. at 20. His contention was left unaddressed.
Lastly, the Board failed to provide an adequate statement of reasons or bases for interpreting Dr. Anderson’s opinion as “negative” evidence against service connection for blackout spells. R. at 12. Dr. Anderson concluded that Mr. Richardson “has no current seizure
disorder,” but made no conclusion on service connection for Mr. Richardson’s blackout spells.2 R. at 167. He noted that 1) blackout spells were “never the issue for which he has been evaluated,” 2) recent neurological evaluations have all focused on recurrent headaches, and 3) neurological notes he examined gave “no definitive cause” for the blackout spells. Id. Based on the evidence in the record, the Board failed to adequately explain its reasons or bases for finding that Dr. Anderson’s opinion constituted evidence against service connection for blackout spells.
The Board’s inadequate statement frustrates judicial review. SeeTucker, supra. On remand,
Mr. Harper may present, and the Board must consider, any additional
evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 ( 2002). These matters are to be provided expeditious treatment on remand, in accordance with 38 U.S.C. § 7112.
Accordingly, the March 24, 2009, decision of the Board is SET ASIDE and the matters
REMANDED for further adjudication with the Board remanded matter (headaches).

DATED:
October 22, 2010
Dr. Anderson used the term “syncope” for the blackout spells with sudden loss of consciousness.
“Syncope” is defined as “a temporary suspension of consciousness due to generalized cerebral ischemia; called also faint.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1845 (31st ed. 2007).
2

Copies to:
Amy F. Fletcher, Esq.
VA General Counsel (027)

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