New Cavc Decision Tells Va To Accept

[Berta]

Extraordinary- and maybe a big push for all of you who do such meticulous medical research for your claims and associate it well to your evidence:

from email from Ray B Davis-

Dear Readers,

The Federal Appeals Court has ruled that "Lay Evidence" can be used

to make a diagnosis of a medical condition in a veterans claim. The

VA and the Veterans Court have ruled in the past that Lay evidence

could not make a medical diagnosis.

From the Court case (copied in it's entirety below my name)

"(1) a layperson is competent to identify the medical condition,(4)

4 Sometimes the layperson will be competent to identify the condition

where the condition is simple, for example a broken leg, and

sometimes not, for example, a form of cancer.

(2) the layperson is reporting a contemporaneous medical diagnosis,

or (3) lay testimony describing symptoms at the time supports a later

diagnosis by a medical professional. Contrary to the Veterans' Court,

the relevance of lay evidence is not limited to the third situation,

but extends to the first two as well."

While the lay evidence presenting testimony will have to be believed,

and will need some knowledge of medical conditions by observing the

veteran; if you VA claim was denied because of lay evidence you may

wish to reopen the claim and cite this case.

Your Editor,

Ray B Davis, Jr

VALaw.org

http://www.valaw.org

--FED CASE ---

United States Court of Appeals for the Federal Circuit

2007-7029

ALVA JANDREAU,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Ronald L. Smith, Disabled American Veterans, of Washington, DC,

argued for claimant-appellant. With him on brief was Zachary M. Stolz.

Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch,

Civil Division, United States Department of Justice, of Washington,

DC, argued for respondent-appellee. With her on the brief were Peter

D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director;

and Mark A. Melnick, Assistant Director. Of counsel on the brief were

Michael J. Timinski, Deputy Assistant General Counsel; and Y. Ken

Lee, Attorney, United States Department of Veterans Affairs, of

Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.

United States Court of Appeals for the Federal Circuit

2007-7029

ALVA JANDREAU,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: July 3, 2007

___________________________

Before MICHEL, Chief Judge, and BRYSON and DYK, Circuit Judges.

DYK, Circuit Judge.

Alva Jandreau ("Jandreau") appeals the judgment of the United States

Court of Appeals for Veterans Claims ("Veterans' Court"). That court

affirmed an earlier decision of the Board of Veterans' Appeals

("Board") that denied service connection for residuals of a right-

shoulder dislocation. We reject appellant's argument that the

evidentiary standard should be relaxed, but hold that the Veterans'

Court improperly held that lay evidence cannot be used to establish a

medical diagnosis. We remand for further proceedings consistent with

this opinion.

BACKGROUND

Jandreau served honorably in the U.S. Army from May 1957 to May 1959.

In

May 1997, Jandreau filed a claim with the Veterans Administration

("VA") for residuals of a right shoulder injury. He asserted that the

injury to his shoulder had occurred during basic training at Fort

Dix, when he had dislocated his shoulder and had been treated for his

injury on the base. The VA attempted to obtain Jandreau's service

medical records, but was unable to do so because those records had

been destroyed in a 1973 fire at the National Personnel Records

Center in St. Louis.

In an effort to provide the necessary evidence as support for his

claim of service connection despite the destruction of the records,

Jandreau submitted a number of documents to the VA. He submitted a

statement from a fellow serviceman, Frederick Burnham, averring: "I

remember Alva [Jandreau] being in great pain after dislocating his

shoulder while in training."1 J.A. at 35. Jandreau also submitted

multiple medical reports, detailing medical examinations conducted in

2000. Those reports stated that Jandreau suffered pain, arthritis and

rotator cuff impingement in his right shoulder. In particular, one

report by Dr. Timothy Snell, M.D., assesses Jandreau's condition

as "[r]ight shoulder pain, most likely sequelae of his dislocation of

the shoulder." Id. at 7. Jandreau also submitted a radiology report

indicating a history of right-shoulder dislocation and pain and

documents indicating treatment for that condition.

The VA denied service connection because "no medical evidence was

received showing continuity of treatment for the right shoulder since

discharge from military service." J.A. at 78. Jandreau appealed to

the Board, which issued its decision on May

1 The VA specifically allows veterans to introduce into evidence

statements of fellow service members when records were destroyed in

the 1973 fire. See Veterans Benefits Administration Adjudication

Procedures Manual M21-1MR, part III, subpart iii, ch. 2, § E.27.b

(2005), available at http://www.warms.vba.va.gov/admin21/

m21_1/mr/part3/subptiii/ch02/ch02_sece.doc, page 2-E-5.

2007-7029 2

27, 2004. The Board denied service connection for Jandreau's injury,

reasoning that Dr. Snell's report merely recorded Jandreau's

assertion that he had suffered a dislocation but did not diagnose a

dislocation when it occurred. The Board stated that "the Board is not

required to accept evidence that is simply information recorded by a

medical examiner, unenhanced by medical opinion." J.A. at 13. It

further concluded that "[m]edical diagnosis and causation involve

questions that are beyond the range of common experience and common

knowledge, and require the special knowledge and experience of a

trained physician." Id. The Board rejected the testimony of both

Jandreau and his fellow serviceman, because "[w]hile the veteran and

his buddy are arguably competent to present evidence concerning the

occurrence of an injury, they are not competent to present evidence

to establish the etiology of a current disability." Id. The Board

thus found that "there is no competent evidence on file linking the

veteran's current right shoulder disabilities to service or to any

incident therein." Id.

Jandreau appealed to the Veterans' Court, which affirmed the Board's

decision. The court concluded that the Board did not err in rejecting

lay evidence that Jandreau suffered a dislocation during service

and "did not err in discounting Dr. Snell's medical opinion because

it was premised on a fact that Mr. Jandreau was not competent to

establish—that he had dislocated his shoulder during service."

Jandreau v. Nicholson, No. 04-1254, slip op. at *3 (Vet. App. Aug.

24, 2006). The court held that "[w]here the determinative issue

involves either medical etiology or a medical diagnosis, competent

medical evidence is required; however, lay assertions of

symptomatology or injury may suffice where the determinative issue is

not medical in nature." Id. Thus the court held that "whether

[Jandreau] experienced a dislocation of his shoulder requires a

medical

2007-7029 3

diagnosis." Id.

Jandreau timely appealed the decision of the Veterans' Court to this

court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). Cromer

v. Nicholson, 455 F.3d 1346, 134-49 (Fed. Cir. 2006).

DISCUSSION

I

On appeal Jandreau first argues that the destruction of records while

in the government's custody should result in a relaxed evidentiary

standard for veterans. We reject this argument.

The statute provides that "a claimant has the responsibility to

present and support a claim for [VA] benefits." 38 U.S.C. § 5107(a).

In our decision in Cromer, 455 F.3d 1346, we considered and rejected

the argument that service connection should be presumed when a

veteran's medical records are destroyed while in the government's

custody. 455 F.3d at 1350-51. In Cromer, the medical records were

destroyed in the same 1973 fire at the National Personnel Records

Center that resulted in the presumed destruction of Jandreau's

records. See id. at 1347. We reasoned that the veteran has the

evidentiary burden of establishing his claim in veterans' benefits

cases and that Congress and the VA have specifically shifted that

burden in particular cases, but have not done so here. Id. at 1350-

51. We further noted that the VA has eased the evidentiary burden on

veterans whose records were lost in the 1973 fire, but has not

provided for an adverse presumption of service connection. Id. at

1351. 2

2 See Veterans Benefits Administration Adjudication Procedures Manual

M21-1MR, part III, subpart iii, ch. 2, § E.27.b (2005), available at

http://www.warms.vba.va.gov/admin21/m21_1/...tiii/ch02/ch02_

sece.doc,

2007-7029 4

Jandreau on appeal does not deny that our decision in Cromer is

controlling on the issue of burden shifting, but asserts that his

claim is different because he asserts only that his burden of proof

should be "somewhat relaxed." Reply Br. at 1. To the extent Jandreau

seeks a modification of his burden of proof, we see no material

difference between his argument and the argument we rejected in

Cromer. To the extent that Jandreau seeks to invoke traditional

evidentiary adverse inference rules, we find those rules to be

inapplicable, even if we were to agree that they apply in the context

of VA proceedings. The general rules of evidence law create an

adverse inference when evidence has been destroyed and "(1) . . . the

party having control over the evidence had an obligation to preserve

it at the time it was destroyed; (2) . . . the records were destroyed

with a culpable state of mind; and (3) . . . the destroyed evidence

was relevant to the party's claim or defense such that a reasonable

trier of fact could find that it would support that claim or

defense." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d

99, 107 (2d Cir. 2002) (internal citation and quotation marks

omitted); see also 31A C.J.S. Evidence § 168 (2007); 2 Kenneth S.

Brown, McCormick On Evidence § 264 (6th ed. 2006). The burden is on

the party seeking to use the evidence to show the existence of each

criterion. Residential Funding, 306 F.3d at 107. There is no claim

here that the records were willfully or recklessly destroyed. While

some circuits have held that a showing that a party was negligent in

page 2-E-5 (listing alternate documents, such as statements from

service medical personnel, statements of fellow service members,

letters, photographs or prescription records, state or local accident

and police reports, that the veteran can provide to substitute for

documents destroyed in the 1973 fire).

2007-7029 5

the destruction of records creates an adverse inference,3 we need not

decide whether that is the correct rule because Jandreau conceded at

oral argument that there was no evidence of government negligence

leading to the destruction of the records.

II

Jandreau's second argument on appeal is that the Veterans' Court

erred in holding that that lay evidence is insufficient "where the

determinative issue involves either medical etiology or a medical

diagnosis," and that accordingly, "whether [Jandreau] experienced a

dislocation of his shoulder requires a medical diagnosis." Jandreau,

No. 04-1254, slip op. at *3. We agree. The holding of the Veterans'

Court is inconsistent with our decision in Buchanan v. Nicholson, 451

F.3d 1331 (Fed. Cir. 2006), which was decided shortly before the

decision of the Veterans' Court in this case.

Buchanan involved a situation where the veteran claimed service

connection resulting from schizophrenia that allegedly began during

his service. The veteran sought to establish service connection by

submitting affidavits of relatives and his commanding officer

testifying that his symptoms of paranoid schizophrenia first

manifested themselves during service, as well as a medical opinion

from 2001, almost twenty years after the conclusion of his service,

that stated that his symptoms first

3 See Residential Funding, 306 F.3d at 108; Rogers v. T.J. Samson

Cmty. Hosp., 276 F.3d 228, 232 (6th Cir. 2002). Other circuits have

held mere negligence insufficient to apply an adverse presumption.

See, e.g., Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir.

1997); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); Brewer

v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995); Vick

v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975); see

also Med. Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F.3d 806, 824

(9th Cir. 2002); Jackson v. Harvard University, 900 F.2d 464, 469

(1st Cir. 1990).

2007-7029 6

appeared during service. Id. at 1333. The Board determined that lay

evidence without confirmatory documentary evidence cannot be

credible, and the Veterans' Court affirmed. Id. at 1337. We reversed,

holding that numerous veterans' statutes and regulations require

consideration of lay evidence. Id. at 1334-35; see also 38 U.S.C. §§

1154(a), 5107(; 38 C.F.R. §§ 3.303(a), 3.307(B). In other words we

found that the statute makes clear that, in the veterans' context,

traditional requirements for admissibility have been relaxed. See 38

U.S.C. § 5107(B) ("The Secretary shall consider all . . . lay and

medical evidence of record in a case . . . with respect to

benefits."). We concluded that "lay evidence is one type of evidence

that must be considered" and that "competent lay evidence can be

sufficient in and of itself." Buchanan, 451 F.3d at 1335. We noted

that the Board retains discretion to make credibility determinations

and otherwise weigh the evidence submitted, including lay evidence.

Id. at 1336-37. The rule announced in Buchanan is particularly

important when veterans' service medical records have been destroyed.

Unless lay evidence were allowed, it would be virtually impossible

for a veteran to establish his claim to service connection in light

of the destruction of the service medical records.

Under Buchanan the conclusion of the Veterans' Court that "competent

medical evidence is required . . . [when] the determinative issue

involves either medical etiology or a medical diagnosis" is too

broad. Jandreau, No. 04-1254, slip op. at *3. Lay evidence can be

competent and sufficient to establish a diagnosis of a condition when

(1) a layperson is competent to identify the medical condition,4 (2)

the layperson is

4 Sometimes the layperson will be competent to identify the condition

where the condition is simple, for example a broken leg, and

sometimes not, for example, a form of cancer.

2007-7029 7

2007-7029 8

reporting a contemporaneous medical diagnosis, or (3) lay testimony

describing symptoms at the time supports a later diagnosis by a

medical professional. Contrary to the Veterans' Court, the relevance

of lay evidence is not limited to the third situation, but extends to

the first two as well. Whether lay evidence is competent and

sufficient in a particular case is a fact issue to be addressed by

the Board rather than a legal issue to be addressed by the Veterans'

Court. We do not reach the question whether in the present case the

lay evidence is competent and sufficient to establish shoulder

dislocation, a matter beyond our jurisdiction. We remand to the

Veterans' Court so that it may remand to the Board for further

consideration under the correct legal standard.

CONCLUSION

For the foregoing reasons, the decision below is

REVERSED AND REMANDED

COSTS

No costs.

---end---

http://www.valaw.

[Josephine]

Are they stating, " when my heart is pounding out of my chest and racing 135 beats per minute with perspiration running down my hands to my elbows, sitting beside the road, not able to breathe and wanting to run as far as I can from fear?" That I am competent to diagnosis myself as having an anxiety and panic attack, when I have lived this life for 43 years?

Thanks bunches,

Josephine

[Hoppy]

"Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court. We do not reach the question whether in the present case the lay evidence is competent and sufficient to establish shoulder

dislocation, a matter beyond our jurisdiction."

This is not a situation where they are required to believe everything the veteran or a buddy says. It appears to me that they will be required to base the denial on consideration of the lay evidence rather than a blanket denial of testimony because it is "lay". The board can still use the same arguments against lay evidence they have used for years. I am not sure this decision changes much. Is there any analysis of the impact of this decision that has been written up by the legal beagles?

Edited July 8, 2007 by Hoppy

[Josephine]

Hoppy,

I haven't the foggiest of ideals of what you just said?

I can assume that if both of my C&P doctors state that the Veteran displays " High Levels" of Anxiety with Visibly Wet Hands, this the R.O; Courts and the BVA will believe

I always get written up for getting out of my seat, but I refuse to sit there like a dunce, with my slacks getting wet from my hands and not showing them.

They call " getting out of my seat" inappropriate behavior.

I guess, in this matter, it isn't what I tell them, it is what I show them.

Did I have this condition before service? Absolutely No!

It is a cycle that came from " Fear of Dying in the Swimming Pool" and I have not been able to turn it off since"

Josephine

Edited July 8, 2007 by Josephine

[Hoppy]

Josephine,

If the doctor makes an observation and puts it his report that is not lay testimony. Lay testimony is when a person with no medical training makes a statement of symptoms they saw. The board is now required to base there rejection of lay evidence on consideration rather than a blanket remark that lay evidence is not applicable. That is my take. I do not see that this has much affect on your claim because you have significant in-service and post service history of treatment by doctors.

Edited July 8, 2007 by Hoppy

[Hoppy]

Josephine,

I have always been in agreement with your take on the swimming pool incident. My situation in the barracks was similar in as much as the throat closure caused by the assault resulted in a medical condition called "dry drowning".

To add insult to injury in both of our cases the people around us in our immediate support groups were the people who caused the problem. Thus, a loss of confidence in any support group causes an chronic cycle of behavior which not only applies to the specific incident but to any other situation where support becomes a reality. I started thinking that that no matter what if I hung around in the barracks with these people they would kill me with their stupidity and there was nobody in my loop to undo the problem.

Edited July 8, 2007 by Hoppy

[Josephine]

Hoppy,

Thanks for bringing it down to my level.

I know that I do have much medical information after service, but those psychiatrist records in service state" dis-satisfied with working conditions and living in the barracks" . Has not been satified with service since boot camp. Her values are being fiated due to foul mouth people.

I do like this statement in their records. " No Personaity Conflicts Noted".

If only those two cope out " Psychiatrist" in the military" would just have put down what I was saying to them.

Wouldn't it have sounded better if they had stated" This veteran was forced to constantly go into the deepest water and jump off the high dive with never a swimming lesson and was sure that she was going to die in that pool. No one would assist out of the pool.

The veteran is dis-satifed with working conditions as xxxxx doctor jerked her by the neck until she wet all over herself and she is tired of being cursed by the doctors, so she has put in for a transfer to another " duty station", but this transfer is taking too long and we must discharge her due to her nervous anxiety and headaches.

That wouldn't be the real world now would it?

Josephine

Edited July 8, 2007 by Josephine