Veteranclaims’s Blog

December 10, 2010

Savage v. Gober, No Medical-Nexus Evidence Required where Lay Person’s Observation is Competent

To followup on the Savage quote“if lay person’s observation of continuity of symptomatology is competent, no medical evidence is required to prove nexus”.

From the Veterans Court Decision in Savage v. Gober, full decision posted below:

“With regard to question (c), if the continuity of symptomatology
provision of 3.303(b) requires that there be medical-nexus evidence
relating the veteran’s present disability to service (see Grottveit and
Moray, supra (medical-nexus evidence of relationship between present
disability and service is generally required for purposes of well
grounding a claim and reopening a previously disallowed claim)), the
continuity of symptomatology provision would simply be a nullity. Thus,
the Court holds that no such medical-nexus evidence is required.

Nevertheless, because it would not necessarily follow that there is a
relationship between any present disability and the continuity of
symptomatology demonstrated, medical evidence (see Epps, Caluza, Heuer
and Grottveit, all supra) is required to demonstrate such a
relationship unless such a relationship is one as to which a lay
person’s observation is competent (see Falzone, Layno, Horowitz, and
Budnik, all supra).”

=================================

UNITED STATES COURT OF VETERANS APPEALS
No. 94-503

Frank B. Savage, Appellant,

v.

Hershel W. Gober,

Acting Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans’ Appeals

(Argued May 19, 1997
Decided November 5,
1997 )

Micha Barach for the appellant.

Rudrendu Sinhamahapatra, with whom Mary Lou Keener, General
Counsel; Ron Garvin, Assistant General Counsel; and R.. Randall
Campbell, Deputy Assistant General Counsel, were on the brief, for
the appellee.

Sean Kendall for the National Organization of Veterans Advocates
as amicus curiae.

Robin Duncan Culbertson, of the National Veterans Legal Services
Program, for the American Legion as amicus curiae.

Before KRAMER, HOLDAWAY, and STEINBERG, Judges.

KRAMER, Judge: The appellant, Frank B. Previous HitSavageNext Hit, appeals a March 16,
1994, decision of the Board of Veterans’ Appeals (BVA or Board) that
denied a claim of service connection for a right hip disability after
determining that new and material evidence had been submitted to reopen
the claim (claim l); denied service connection for arthritis of multiple
joints, other than the right hip (claim 2); and found not well grounded a
claim of secondary service connection due to service-connected malaria
for arthritis of multiple joints other than the right hip (claim 3).
For the reasons that follow, the Court will affirm the Board decision.

I. BACKGROUND

The appellant had active military service in the U.S. Army from April
1940 to July 1945. Record (R.) at 32, 35, 133, 140. His service medical
records (SMRs) show, inter alia, several bouts of malaria (R. at 36, 38,
41, 53, 59, 61, 63-64, 66-67, 69). In July 1941, his SMRs noted a
strain of the lumbar region as a result of a fall while descending a
companionway. R. at 58. Hospital records from April 1942 reported that
the appellant complained of back pain and was given heat treatments to the
lumbar region. R. at 77, 79. Examinations in April 1942 and June 1943
reported no abnormalities of the bones, joints, or muscular system. R. at
75, 101. In February 1944, the appellant was admitted to the orthopedic
clinic with complaints of back pain of two years’ duration. R. at 120-
21. A history of injury to the back two years earlier and re-injury two
weeks earlier was noted. Id. An x-ray of the lumbar spine was
negative. Id. The appellant’s July 1945 separation examination reported
musculoskeletal defects as “none.” R. at 131.
In February 1947, the appellant filed with a VA regional office (
RO) a claim of service connection for, inter alia, malaria. R. at 136.
The RO granted service connection at 0% disabling for malaria. R. at
146.
A December 1978 x-ray report noted that bones in the right wrist were
mildly osteoporotic. R. at 163. A March 1981 x-ray report noted a
five-year history of a septic right ankle and an impression of severe
degenerative disease in the right ankle. R. at 167. An April 1981 x-
ray report revealed findings consistent with gouty arthritis of the right
elbow. R. at 170. A May 1981 VA hospital report noted that the
appellant had developed bursitis following trauma to the right elbow
approximately five years earlier. R. at 172, 176. In August 1981, the
RO denied an increased rating for the appellant’s service-connected
malaria and denied service connection for a hip injury, although the
record does not reflect that the appellant ever filed a claim with
respect to the latter. R. at 181. An October 1981 x-ray report noted a
history of right hip pain for several months, which was noted to be
possibly post status to an injury in 1947. R. at 185. The x-ray report
noted mild degenerative spurring in the lumbar spine; however, x-rays
of the hip and pelvis were normal. Id. In an August 1984 VA
examination, the examiner reported, inter alia, limited external rotation
of the left hip. R. at 252. A February 1985 x-ray report noted
symmetrical mild degenerative arthritis in both hips. R. at 257. In
August 1985 VA progress notes, the examiner noted that right hip pain had
begun approximately two or three weeks earlier. R. at 263. Later that
same month, an x-ray report of the
right hip noted that “[t]he lateral margin of the ilium is indented
suspicious of possibly some old trauma.” R. at 262. The x-ray report
of the lumbosacral spine noted, inter alia, “an old compression
fracture of the vertebral body of L-2” and “areas of degenerative
spondylosis with some rather prominent bony spurring.” Id. Later
that same month, VA progress notes reported that the appellant had a long
history of low back and right hip pain since an injury in the service. R.
at 265. In December 1985, VA progress notes revealed a long history of
right hip, knee, and foot pain and indicated that there was history of
trauma. R. at 269. The notes described the hip and knee pain as rare and
mild. Id.
In February 1990, the appellant filed a claim of service connection
for arthritis of multiple joints as secondary to his service-connected
malaria, and requested that his claim of service connection for a right
hip disability be reopened. R. at 284. In March 1990, the RO denied
service connection for arthritis of multiple joints, secondary to the
service-connected malaria, and determined that new and material evidence
had not been submitted to reopen the claim of service connection for a
right hip disorder. R. at 288-89. The appellant filed a timely Notice
of Disagreement (R. at 293) and a VA Form 1-9, Appeal to the Board
of Veterans’ Appeals (Form 1-9) (R. at 303-04).
In a January 1991 hearing at the RO, the appellant testified that
during service he had fallen down stairs on a ship, landed on his hip
and back, and was hospitalized for approximately 10 days. R. at 307-08
. He reported that he was limping at the time of his discharge (R. at
309) and had received heat treatments and massages over the years,
although not through the VA system (R. at 311). He further
contended that his multiple-joint problems had developed as a result of
his service-connected malaria. R. at 314-15. In February 1991, a VA
hearing officer confirmed the denial of service connection for arthritis
of multiple joints, secondary to the service-connected malaria, and
determined that no new and material evidence had been submitted to
reopen the claim of service connection for a right hip disorder. R. at
321-23. In an August 1991 decision, the BVA remanded the multiple-joint
arthritis and right hip claims for further evidentiary development and
readjudication and referred a claim of service connection for residuals
of a back injury to the RO for further development. R. at 351-354.
In August 1991, a VA outpatient treatment record noted arthritis
of the right hip, knees, and ankles. R. at 358. In a statement in
support of claim dated March 1992, which referred, inter alia,
to claims for hip and back disabilities, the appellant stated that
he “need[ed] comp exam.” R. at 384. In May 1992, the RO denied,
inter alia, service connection for a back condition, determined that no
new and material evidence had been submitted to reopen the claim of
service connection for a right hip disorder, and confirmed the denial of
service connection for arthritis of multiple joints. R. at 391-92. In
a June 1992 Form 1-9, the appellant noted “[b]ack problem of 2/44 [and]
hip at same time still bothers me and I walk with a limp.” R. at 420-21
.
In a July 1992 statement, Robert G. Haling, a chiropractor,
reported that he had initially seen the appellant in September 1980 for
complaints of low back and hip pain. Dr. Haling noted the appellant’s
history of an injury incurred by the appellant’s falling down steel steps
on a ship in 1941, and he recorded the appellant’s statement that he
had walked with a limp ever since. Supplemental (Suppl.) R. at 1. In
a September 1992 hearing, the appellant and his wife testified that he
had experienced bouts of malaria over the years (R. at 424-28) and
continual hip pain (R. at 428-30). Later that same month, a VA hearing
officer confirmed the denial of service connection for arthritis of
multiple joints, and determined that no new and material evidence had been
submitted to reopen the claim of service connection for a right hip
disorder. R. at 434-36.
On March 16, 1994, in the decision here on appeal, the BVA, after
first finding that all relevant evidence had been obtained by the RO,
determined that (1) new and material evidence had been presented to reopen
the claim of service connection for a right hip disorder but found that
a right hip disorder was not incurred in or aggravated by service; (2)
arthritis of multiple joints other than the right hip was not
incurred in or aggravated by service; and (3) a well-grounded claim had
not been submitted for service connection for arthritis of multiple
joints, secondary to the appellant’s service-connected malaria. The
appellant filed a timely appeal to the Court, arguing, inter alia, that
the BVA had breached the duty to assist by failing to provide a medical
examination and expert opinion as to the relationship between the
appellant’s present disability and his injury in service. Brief (Br.)
at p. 17.
In a March 19, 1996, single-judge memorandum decision, the Court
affirmed the BVA decision, holding that the appellant had not submitted
well-grounded claims for either direct or secondary service connection for
arthritis of multiple joints other than the right hip, that no new and
material evidence had been submitted to reopen a claim of service
connection for a right hip disability, and that, as a consequence, the
duty to assist did not attach. Previous HitSavageNext Hit v. Brown, No. 94-503,
1996 WL 140584 (Vet. App. Mar. 19, 1996). On April 2, 1996, the
appellant filed a timely motion for panel review arguing that both a well-
grounded claim and new and material evidence had been presented.
Appellant’s Motion for Panel Review of Memorandum Decision at 2-4. The
appellant’s motion for panel review did not raise any issue with respect
to or otherwise reference VA Adjudication Procedure Manual, M21-1 [
hereinafter Manual M21-1], Part III, para. 1.03(a), cited infra, which
was issued in February 1996. (The Court notes that the appellant’s brief
was filed on August 18, 1995, his reply brief was filed on December 21,
1995, and paragraph 2.10(f), cited infra, of Part VI of the Manual M21-1
was issued in August 1996.) On June 19, 1996, the Court denied the
appellant’s motion for panel review and entered judgment. On July 3,
1996, the Court recalled its judgment, revoked its June 19, 1996, order,
and granted the appellant’s motion for panel review. In an order dated
July 9, 1996, the Court stated:
The Court granted the motion for panel review in order to determine
what effect the application of 38 C.F.R. 3.303(b) (1995) may have on the
appellant’s claims, including the underlying issues of what constitutes
continuity of symptomatology and what effect that construct has on
presenting evidence sufficient to well ground or to reopen a claim, as
well as subsequently determining entitlement to service connection.
Accordingly, it is

ORDERED that each party file, within 30 days after the date of this
order, a legal memorandum addressing the following issues: (1) What
evidence of record constitutes evidence of continuity of symptomatology
under section 3.303(b); (2) what effect does section 3.303(b) have on
making evidence sufficient for purposes of well-groundedness under
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), and reopening under Moray v.
Brown, 5 Vet.App. 211, 214 (1993); cf. Falzone v. Brown, 8 Vet.App. 398,
405-06 (1995); (3) what effect does section 3.303(b) have on entitlement
to service connection, see Godfrey v. Brown, 7 Vet.App. 398, 404, 407 (
1995); and (4) whether section 3.303(b) applies only to chronic diseases
as specifically listed in 38 U.S.C. 1101(3); 38 C.F.R. 3.309(a), 3.
307(a)(3) (1995).

The Court invites any other interested person or entity, as amicus
curiae, to submit, within 30 days after the date of this order, legal
memoranda addressing the issues stated above.

Previous HitSavageNext Hit v. Brown, U.S. Vet. App. No. 94-503 (Order July 9, 1996) (
emphasis added).

On November 20, 1996, after reviewing the parties’ responses to its
July 9, 1996, order the Court stated:
The Court granted the motion for panel review in order to determine
what effect the application of 38 C.F.R. 3.303(b) (1995) may have on
the appellant’s claims, including the underlying issues of what
constitutes continuity of symptomatology and what effect that has on
presenting evidence sufficient to well ground or to reopen a claim, as
well as subsequently determining entitlement to service connection. On
July 9, 1996, the Court ordered the parties to submit legal memoranda
addressing a number of issues. After reviewing the parties’ responses,
the Court believes that further briefing is necessary. . . . Accordingly,
it is

ORDERED that each party file, within 30 days after the date of this
order, a legal memorandum addressing the following issues:

(1) If the continuity of symptomatology provisions in section 3.303(b)
are construed as eliminating the need for medical nexus evidence in
certain cases (see Grottveit [, 5 Vet.App. at 93] (generally
requiring “competent medical evidence” where “the determinative issue
involves medical causation or medical diagnosis”)): (a) Must there be a
diagnosis of a current chronic disease; (b) what type of evidence is
required to show that the condition was noted during service; (c) must
continuity of symptomatology be established with evidence that is
contemporaneous to the presence of the symptomatology or can it be
established by present evidence that references past symptomatology; (d)
must the evidence of continuity of symptomatology be documented in medical
records or can it be otherwise documented or presented; (e) must there be
medical-opinion evidence that the symptomatology is continuous and that
the symptoms showed to have continued are related to the current condition
; (f) must there be medical-opinion evidence showing a relationship
between the condition noted in service and the postservice
symptomatology as to which continuity is asserted; and (g) must there be
medical-opinion evidence that the condition noted in service and the
current condition constitute the same disease (although not necessarily
showing that there is a causal relationship between the two)?

(2) Section 3.303(b) states that continuity of symptomatology is required ”
to support the claim.” Does this language impose a restriction that
service connection cannot be awarded in nonchronic in-service claims
unless there is continuity of symptomatology? If 3.303(b) is construed
as imposing such a restriction, is such a constraint upon the award of
service connection consistent with the terms of 38 U.S.C. 1110?

(3) Are the answers to any of the foregoing questions set forth in or
derived from any publicly available Department of Veterans Affairs
issuances or General Counsel opinions, and, if so, please cite them and
provide copies?

It is further

ORDERED that the Clerk invite interested amici curiae to submit
memoranda on the above questions within the time allowed to the parties.

Previous HitSavageNext Hit v. Brown, U.S. Vet. App. No. 94-503 (Order Nov. 20, 1996) (
emphasis added).
Subsequently, the Clerk of the Court issued an order, dated April
11, 1997, that set oral argument for May 19, 1997. The order was
silent as to the scope of the issues to be considered at oral argument.
Previous HitSavageNext Document v. Brown, U.S. Vet. App. No. 94-503 (Order April 11, 1997).
Both the National Organization of Veterans Advocates and the
American Legion submitted amici filings. The American Legion’s memorandum
of law, inter alia, referenced Manual M21-1, Part III, para. l.03(a
) (Feb. 23, 1996), and Part VI, para. 2.10(f) (Aug. 5, 1996), as
relevant to the disposition of the appeal, arguing for a remand to
fulfill the duty under those provisions to develop the claim, even if
the appellant were not otherwise to prevail in his appeal. Br. at 23-24
. On May 19, 1997, oral argument was held, during which, inter alia,
the appellant abandoned his appeal with respect to claim (3) and both
the appellant and the amicus curiae American Legion reasserted
entitlement to relief under the Manual M21-1.

II. ANALYSIS

A. Claim 3

As a consequence of the appellant’s abandonment of claim 3, the
Court will not review it. See Bucklinger v. Brown, 5 Vet.App. 435,
436 (1993).
B. Claim 1–Without Regard to 38 C.F.R. 3.303(b)

As indicated in part I, supra, in 1981 the RO denied service
connection for a hip injury, even though a review of the record on appeal
indicates that the appellant had not yet filed a claim for this
condition. In 1994, the BVA denied a claim of service connection for
this condition after determining that new and material evidence had been
submitted to reopen the claim. The Court need not decide whether the
appellant’s claim is an initial claim or one to reopen because,
regardless, the result is the same because the appellant has not met
either prerequisite threshold for having his claim decided on the merits.
As to an initial claim, the appellant has the burden of submitting
evidence sufficient to justify a belief that his claims of service
connection are well grounded. See 38 U.S.C. 5107(a); Robinette v.
Brown, 8 Vet.App. 69, 73 (1995). A claim is well grounded if it is ”
plausible.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Where the
determinative issue involves medical etiology or a medical diagnosis,
competent medical evidence that a claim is “plausible” or “possible” is
required for the claim to be well grounded. See Epps v. Gober, __ F.3d __
, __, No. 97-7014, slip op. at 9 (Fed. Cir. Oct. 7, 1997), aff’g 9
Vet.App. 341 (1996) (adopting this Court’s definition of a well-grounded
claim as set forth in Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d,
78 F.3d 604 (Fed. Cir. 1996) (table), and Grottveit, supra, including the
requirement that “[w]here the determinative issue involves medical
causation, competent medical evidence to the effect that the claim is
plausible is required”); Heuer v. Brown, 7 Vet.App. 379, 384 (1995);
Grottveit, supra. This burden may not be met
merely by presenting lay testimony, because lay persons are not competent
to offer medical opinions. See Epps, supra; Grottveit, supra; Espiritu
v. Derwinski, 2 Vet.App. 492, 494 (1992). Service connection generally
requires medical evidence of a current disability; medical or, in certain
circumstances, lay evidence of in-service incurrence or aggravation of a
disease or injury; and medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury. See Epps,
supra; Caluza, supra; see also Heuer and
Grottveit, both supra. Whether a claim is well grounded is a question of
law that this Court determines de novo. See Robinette, 8 Vet.App. at
74.
As to a claim to reopen, the Secretary must reopen a previously and
finally disallowed claim when “new and material” evidence is presented or
secured with respect to that claim. See 38 U.S.C. 5108, 7105(c). “New”
evidence is evidence that is not “merely cumulative” of other evidence of
record. See Evans v. Brown, 9 Vet.App. 273, 283 (1996); Blackburn v.
Brown, 8 Vet.App. 97, 102 (1995); Cox v. Brown, 5 Vet.App. 95, 98 (1993);
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). To be “material,”
evidence must be probative of the issue at hand (i.e., it must tend to
prove the merits of the claim as to each essential element that was a
specified basis for that last final disallowance of the claim), and, if it
is probative, there must be a reasonable possibility that in the context
of all the evidence, both new and old, the outcome of the case would
be changed. See Evans, 9 Vet.App. at 284; see also Justus v.
Principi, 3 Vet.App. 510, 513 (1992) (in determining whether evidence is
new and material, “credibility” of newly presented evidence is to be
presumed). Whether

evidence is “new and material” is a question of law that this Court
determines de novo under 38 U.S.C. 7261(a)(1). See Struck v. Brown, 9
Vet.App. 145, 151 (1996); Masors v. Derwinski, 2 Vet.App. 181, 185 (
1992); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 213 (1991).
Assuming that the appellant’s claim is an initial submission, the
only medical evidence of record etiologically linking his present
hip condition to service is his own testimony. The appellant,
however, is not competent as a lay person to provide a medical opinion
relating his present arthritis to his fall in service. See Epps, supra;
Slater v. Brown, 9 Vet.App. 240, 243 (1996) (medical evidence is needed
to provide causal nexus between veteran’s in-service injury and arthritis
of cervical spine). Because the record contains no competent medical
evidence establishing such a relationship, the claim is not well grounded
. See Epps, supra; Caluza, 7 Vet.App. at 504; Grottveit, supra.
Assuming that the appellant’s claim is one to reopen his previously
denied claim for a hip injury, his testimony indicating that he injured
his hip as a consequence of an in-service fall is new and probative as
to the basis for the 1981 RO denial, which was that the appellant had
not injured his hip in service. Nevertheless, considering this new
evidence with the old evidence of record, in the absence of any medical
evidence etiologically linking the appellant’s present condition to
service there is no reasonable possibility of outcome change, and, thus,
new and material evidence has not been presented. See Evans, 9 Vet.App.
at 283 (1996); Moray, 5 Vet.App. at 213-14 (new and material evidence,
to have reasonable possibility of outcome change, must contain medical
evidence of causation where lay evidence will not suffice); Slater, supra (
medical evidence is required to provide causal nexus between veteran’s in-
service injury and his arthritis).
C. Claim 2–Without Regard to 38 C.F.R. 3.303(b)

In part II.B., supra, the Court set forth the requirements for
a well-grounded claim. Although the record on appeal clearly shows that
during service the appellant fell down steps on a ship and was
thereafter treated for back pain on a number of occasions, there is no
medical evidence of record showing any etiological relationship between
his arthritis of multiple joints, other than the right hip, and
service. Thus, the appellant’s claim is not well grounded. See
Caluza and Grottveit, both supra.
D. Claims 1 and 2–Impact of 38 C.F.R. 3.303(b)

In view of the Court’s analysis in parts II.B. and C., supra, the
question now becomes whether, based on the application of 3.303(b),
there is evidence of record, alternatively, to well
ground or reopen claim 1 or to well ground claim 2.
Section 3.303(b) provides:

Chronicity and continuity. With chronic disease shown as
such in service (or within the presumptive period under 3.
307) so as to permit a finding of service connection,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. This rule does
not mean that any manifestation of joint pain, any abnormality
of heart action or heart sounds, any urinary findings of
casts, or any cough, in service will permit service connection
of arthritis, disease of the heart, nephritis, or pulmonary
disease, first shown as a clearcut clinical entity, at some
later date. For the showing of chronic disease in service
there is 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 “Chronic
.” When the disease identity is established (leprosy,
tuberculosis, multiple sclerosis, etc.), there is no
requirement of evidentiary showing of continuity. 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) (1996).
1. Chronicity

Section 3.303(b) provides that a veteran may utilize the ”
chronic disease shown as such in service” provision when the
evidence demonstrates: (1) that the veteran had a chronic disease in
service, or during an applicable presumption period [hereinafter element 1
]; and (2) that the veteran presently has the same condition [
hereinafter element 2].
With respect to element 1, two questions are posed: (a) is
medical evidence needed to demonstrate the existence in service or in
the presumption period of such a chronic disease, or will lay
evidence suffice; and (b) must such evidence be contemporaneous with
the time period to which it refers, or can post-service or post-
presumption-period evidence address existence in service?
With respect to question (a), the answer depends on whether the
disability is of a type that requires medical expertise to demonstrate
its existence (see Epps, supra; Caluza, 7 Vet.App. at 506; Heuer,
7 Vet.App. at 384; Grottveit, supra) or whether the disability is of
the type as to which lay observation is competent to identify its
existence (see Falzone, 8 Vet.App. at 403 (citing Harvey
v. Brown, 6 Vet.App. 390, 393 (1994) for the proposition that
medical causation evidence may not be necessary for conditions that lend
themselves to lay observation such as flat feet); Layno v. Brown
, 6 Vet.App. 465, 470 (1994); Horowitz v. Brown, 5 Vet.App. 217, 221-22 (
1993); Budnik v. Derwinski, 3 Vet.App. 185, 186-87 (1992)).
With respect to question (b), either evidence contemporaneous
with service or the presumption period or evidence that is post
service or post presumption period may suffice. In so holding, the Court
notes the following. First, the language of the regulation (“first
shown as a clear-cut clinical entity, at some later date” (emphasis
added)) appears to contemplate the use of post-service or post-
presumption-period evidence of in-service or presumption-period disease
. Second, to the extent that the language of the regulation is
ambiguous, “interpretive doubt is to be construed in the veteran’s
favor.” Brown v. Gardner, 513 U.S. 115, 117-18 (1994) (citing King v.
St. Vincent’s Hosp., 502 U.S., 215, 220-21 n. 9 (1991)). Third,
limitations on the dating of evidence have been found only where there
has been clear regulatory guidance to that effect. See Russell v.
Principi, 3 Vet.App. 310, 313-14 (1992) (en banc) (interpreting 38 C.F.
R. 3.105(a) and holding that a “determination that there was a clear
and unmistakable error must be based on the record and the law that
existed at the time of the prior [adjudication in question]”).
With respect to element 2, again the question becomes whether
medical evidence is needed to demonstrate that a veteran presently has
the same condition he or she had in service or during a presumption
period or whether lay evidence will suffice. Again, the answer
depends on the nature of the veteran’s present condition, i.e., whether
it is of a type that requires medical expertise to identify it as the
same condition as that in service or during a presumption period, or
whether it can be so identified by lay observation. See Epps, Caluza,
Heuer, Grottveit, Falzone, and Harvey, all supra.
The Court proceeds now to apply the preceding analysis to claims 1
and 2. Although the appellant was treated for a back condition in
service, there is no medical evidence that demonstrates that either the
appellant’s back condition or hip condition were chronic in service or
during the one-year presumption period for arthritis. 38 C.F.R. 3.307(
a)(3), 3.309(a) (1996). Medical evidence is needed to provide a causal
nexus between the veteran’s in-service injury and his arthritis. See
Slater, supra. Because the record contains no such evidence, element 1
cannot be satisfied. Because element 1 cannot be satisfied, element 2,
by definition, cannot be satisfied either.
2. Continuity of Symptomatology

If the evidence fails to demonstrate the applicability of the
chronicity provision of 3.303(b), a VA claimant may still obtain
the benefit of 3.303(b) (that is, providing a substitute way of
showing in-service incurrence and medical nexus for purposes of well
grounding or reopening a claim, as set forth in part II.B., supra) if
continuity of symptomatology is demonstrated. The questions raised by the
regulation with respect to establishing continuity of symptomatology are
: (a) how is the existence of continuity of symptomatology determined; (b)
does a condition “noted during service” require a noting
contemporaneous to service or through any special documentation; and (
c) is any medical evidence of nexus needed in order to obtain the benefit
of this provision?
With respect to question (a), whether there is continuity of
symptomatology in connection with well-grounding a claim, see Caluza, 7
Vet.App. at 504; Grottveit, 5 Vet.App. at 93, or reopening a finally
denied claim, see Evans, 9 Vet.App. at 283; Moray, 5 Vet.App. at 213-14
, is a question that the Court determines de novo. See 38 U.S.C.
7261(a)(1); see also Robinette, 8 Vet.App. at 76 (evidence presumed
credible for purpose of determining whether claim is well grounded);
Justus, 3 Vet.App. at 513 (evidence presumed credible for purpose of
determining whether evidence is new and material). If the Court is
reviewing a BVA decision on the merits, a determination by the BVA as to
continuity of symptomatology would be one of fact that the Court would
review under the clearly erroneous standard. See 38 U.S.C. 7261(a)(4) (
review by the Court is as to BVA “finding of material fact made in
reaching a decision in a case before the Department with respect to
benefits under laws administered by the Secretary”); Gilbert v. Derwinski,
l Vet.App. 49, 53 (1990) (“if there is a ‘plausible’ basis in the record
for the factual determinations of the BVA . . . [the Court] cannot
overturn them”).
Regardless of context, the Court notes that symptoms, not
treatment, are the essence of any evidence of continuity of
symptomatology. See Wilson v. Derwinski, 2 Vet.App 16, 19 (1991) (”
regulation requires continuity of symptomatology, not continuity of
treatment”). As to threshold determinations of well groundedness or
the existence of new and material evidence, such evidence is generally
presumed credible and is not subject to weighing. See King (Roderick)
v. Brown, 5 Vet.App. 19, 21 (1993); Justus, supra (in determining whether
evidence is new and material, “credibility” of newly presented evidence is
to be presumed unless evidence is inherently incredible or beyond
competence of witness). (However, the Court notes that in a merits
context the lack of
evidence of treatment may bear on the credibility of the evidence of
continuity.)
With respect to question (b), the Secretary asserts that the
noting requirements of 3.304(b) (“[o]nly such conditions as are
recorded in examination reports are to considered as noted”) are to be
superimposed on 3.303(b). The Court rejects the Secretary’s
assertion and holds that as long as the condition is noted at the time
the veteran was in service such noting need not be reflected in
any written documentation (other than as required to be in a format
sufficient for inclusion as part of the record and proceedings before the
Secretary and the Board (see Rogozinski v. Derwinski, l Vet.App. 93,
94 (1990))), either contemporaneous to service or otherwise. In so
holding, the Court notes the following. First, nothing in the language
of 3.303(b) suggests that “being noted” is limited to recordation in
examination reports. Second, the recordation-in-examination report
requirement of 3.304(b) is for the veteran’s benefit rather than to
his or her detriment, as would be the case if it were superimposed on
3.303(b). Third, the Secretary’s argument contains the seeds of
its own defeat; the very fact that the Secretary has required in 3.304(b)
written documentation for the notation of a preexisting condition strongly
suggests that reading such a documentation requirement into 3.303(b),
where the Secretary did not elect to include one specifically, would be
unwarranted. See Russello v. United States, 464 U.S. 16, 23 (1983) (”
where Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion
or exclusion”) (quoting United States v. Wong Kim Bo, 472 F.2d 720,
722 (5th Cir. 1972)) (internal quotation marks omitted); Smith v. Brown,
35 F.3d 1516, 1523 (Fed. Cir. 1994) (“canons of construction of course
apply equally to any legal text and not merely to statutes”). Fourth, the
principal definition of “noted” does not require a writing,
Webster’s New World Dictionary 927 (3d College ed. 1991) (defining “noted”
as “1 to pay close attention to; heed; notice; observe[;] 2 to set down in
writing; make a note of”). Fifth, to the extent that the language of
the regulation is ambiguous, “interpretive doubt is to be construed in
the veteran’s favor.” Gardner, 513 U.S. at 117-18. Sixth, if
service records have been lost through no fault of the veteran, it would
be unfair to require that a writing be contained in a service record.
Seventh, limitations on dating and type of evidence have been found
in only the few instances where there has been clear regulatory guidance
to that effect. See Russell, supra and Tubianosa v. Derwinski, 3 Vet.
App. 181, 184 (1992) (interpreting 38 C.F.R. 3.374(c) and holding that
private physician’s diagnosis of tuberculosis
being manifest during the presumption period must be corroborated by ”
acceptable clinical, x-ray or laboratory studies”); Espiritu, 2 Vet.App.
at 494-95 (expert evidence required where subject matter necessitates
expert opinion). Of course, as to type of evidence, unless the
condition is of a type as to which a lay person’s observation is
competent, medical evidence of noting will be required. See Caluza,
supra.
With regard to question (c), if the continuity of symptomatology
provision of 3.303(b) requires that there be medical-nexus evidence
relating the veteran’s present disability to service (see Grottveit and
Moray, supra (medical-nexus evidence of relationship between present
disability and service is generally required for purposes of well
grounding a claim and reopening a previously disallowed claim)), the
continuity of symptomatology provision would simply be a nullity. Thus,
the Court holds that no such medical-nexus evidence is required.
Nevertheless, because it would not necessarily follow that there is a
relationship between any present disability and the continuity of
symptomatology demonstrated, medical evidence (see Epps, Caluza, Heuer
and Grottveit, all supra) is required to demonstrate such a
relationship unless such a relationship is one as to which a lay
person’s observation is competent (see Falzone, Layno, Horowitz, and
Budnik, all supra).
The Court will now apply the preceding analysis to claims 1 and 2
. As indicated in part I., supra, the appellant testified at his
January 1991 hearing that while in service he fell down steel steps,
landed on his hip and back, and was hospitalized for approximately ten
days. R. at 307-08. He reported that he was limping at the time of
discharge (R. at 309), that he had walked with a limp ever since (Suppl.
R. at 1), and that he had received heat treatments and massages over the
years, although not through the VA system (R. at 311). This testimony,
for purposes of well-groundedness and reopening determinations, is
presumed credible because it is not inherently incredible or beyond the
competence of the appellant, as a lay person, to observe. See Justus
and King, both supra. Thus, even if the record did not contain service
medical records showing treatment in service for a back problem,
continuity of symptomatology has been demonstrated because a noting during
service requires that the evidence show only that a condition was observed
during service, or during the presumption period, but does not require
that such observation be recorded, either in special d
ocumentation or during the time of service or during the presumption
period.
Furthermore, for the purposes of determining whether the hip claim is
well grounded or, alternatively, whether new and material evidence has
been presented to reopen the previously
disallowed hip claim, and whether the back claim is well grounded, the
appellant’s statements outlined in the preceding paragraph are, in and of
themselves, sufficient to show continuity of symptomatology. (Because of
the Court’s determination regarding these statements, it need not address
whether the August and December 1985 VA progress notes indicating a long
history of back and hip problems are sufficient to demonstrate continuity
of symptomatology.)
Finally, notwithstanding the appellant’s showing of post-service
continuity of symptomatology and noting during service with respect to
both the hip and back conditions, medical expertise is required to relate
the appellant’s present arthritis etiologically to his post-service
symptoms. See Epps, supra; Slater, 9 Vet.App. at 243. Because the
record is devoid of any such evidence, the appellant has not submitted
evidence sufficient to well ground or, alternatively, reopen his hip
condition claim or to well ground his back condition claim, and, as a
consequence, the duty to provide a medical examination and opinion was not
triggered under 38 U.S.C. 5107(a). See Epps, __ F.3d at __, slip op. at
9-10; Caluza, 7 Vet.App. at 504; Grottveit, 5 Vet.App at 93. Hence, with
respect to all issues considered in parts II.B.-D., supra, the Court will
affirm as to the BVA’s disallowance of the hip condition and back
condition claims. See Sutton v. Brown, 9 Vet.App. 553, 563 (1996) (Court
affirmed BVA denial of claim on merits where Court concluded that
appellant not entitled to merits adjudication because no new and material
evidence to reopen); Edenfield v. Brown, 8 Vet.App. 384, 390 (
1995) (en banc) (holding that Board’s incorrectly reaching merits w
here claim was not well grounded was nonprejudicial error).
In sum, then, the rule here established is as follows: The
chronicity provision of 3.303(b) is applicable where evidence,
regardless of its date, shows that a veteran had a chronic condition in
service or during an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates to a condition
as to which, under the Court’s case law, lay observation is competent.
If the chronicity provision is not applicable, a claim may still be well
grounded or reopened on the basis of 3.303(b) if the condition is
observed during service or any applicable presumption period, continuity
of symptomatology is demonstrated thereafter, and competent evidence
relates the present condition to that symptomatology.
E. Issue of Manual M21-1

The Court declines to review any issue raised by the appellant and by
the American Legion, as amicus curiae, regarding the Manual M21-1. See U.
S. Vet. App. R. 35(e) (“A motion for reconsideration or review must state the points of law or fact which the party believes the Court has overlooked or misunderstood, and must contain an argument in support of the party’s position.”). The appellant, in his motion for panel review, made no reference to paragraph 1.03(a) of part III of Manual M21-1, which was in effect at the time that his motion
was filed, see Appellant’s Motion for Panel Review of Memorandum Decision, and the two briefing orders, applicable to the parties as well as amici curiae, issued by the panel, on July 9, 1996, and November 20, 1996, specifically raised questions only pertaining to 3.303(b), see ante at , slip op. at 5 – 7. Compare Tubianosa, 3 Vet.App. at 184 (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a
practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.”), with Gilbert, 1 Vet.App. at 63 (
Nebeker, C.J., concurring) (“That we considered the arguments belatedly
raised by the Secretary in Fugere is best characterized as the exception
rather than the rule.”).

III. CONCLUSION
The March 16, 1994, decision of the BVA is AFFIRMED.

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: