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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

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Jim 501st

Bva Ruling& Lay Evidence

Question

<H1 id=header>I have re-read my decision from the BVA granting Meniere's Disease and right knee.

In both decisions she stated the veteran and his wife's lay opinion do constitute competent evidence and provide probative information. Then she made reference to the case I posted and others. I copied and pasted this CVA case and put in bold print at the top what I think she was referring to in my case. Notice if the lay person's evidence is later substantiated by a professional medical person it holds a lot of credibility.

For instance, in my case I got of the military in September 1963. Our family doctor from 1963 to 1975 died and his records were unobtainable. She used my wife and my testimony for this lapse of time since medical records from 1975 to present were obtainable. I was first treated for my right knee in 1976 after service. The records pick up for vertigo in 1980. I was officially diagnosed with Meniere's Disease in 2005 by a VA ENT. I had my first surgery on my right knee in 1994 (waiting for knee replacement at present).

I made this brief because I have read so many opinions on lay testimony and even though I may have missed it, I have never seen a judge grant under this CVA decision. I hope it helps some other VET.

Jim 501st

Vet.App. 201, 204 (1992).

In certain situations, lay evidence may be used to diagnose a veteran’s

medical condition. See

Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay

evidence may be used to

diagnose a condition when “(1) a layperson is competent to identify the

medical condition, (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

“); Barr v. Nicholson, 21

Vet.App. 303, 307 (2007) (stating that “[l]ay testimony is competent . . .

to establish the presence

of observable symptomatology and ‘may provide sufficient support for a

claim of service

connection’” (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)));

Washington v. Nicholson, 21

Vet.App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is

competent to provide

information regarding visible, or otherwise observable, symptoms of

disability”). Further, lay

evidence maybe competent to show continuity of symptomatology under 38 C.F.

R. § 3.303(:D. See

Davidson, ___F.3d at___, slip op. at 3 (rejecting the view that “competent

medical evidence is

Veteranclaims’s Blog</H1>

December 27, 2009

<H3 class=storytitle>Hypertension, Board Unsubstantiated Medical Conclusion citing Colvin v. Derwinski, Harmon v. Shinseki, No. 07-3778</H3>Filed under: Uncategorized — Tags: Harmon v. Shinseki, No. 07-3778; Colvin v. Derwinski; Unsubstantiated medical conclusion; hypertension; — veteranclaims @ 11:52 pm Building on the Colvin v. Derwinski post of yesterday, we found this October 2009 single judge decision that emphasizes an example where the Veterans Court found that the Board sought to issue it’s own unsubstantiated medical opinion. If you recall this is a specific point that the PVA article drew attention to, something to look for when reviewing Board decisions

++++++++++++++++++++++++++++++++++++++++++

In addition, in determining whether the medical evidence is sufficient to make a decision on the claim, the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that “there is no evidence establishing that the veteran’s hypertension occurred during his military service.” R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.

+++++++++++++++++++++++++++

U.S. Court of Appeals for Veterans Claims

. 07-3778

Harmon-3778.pdf

—————————————————-

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 07-3778

CARL J. HARMON, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

MOORMAN,Judge: Theappellant, CarlJ.Harmon,appealsthroughcounselaSeptember6,

2007, Board of Veterans’ Appeals (Board) decision that denied his claim

for service connection for

hypertension. Record (R.) at 1-12. The appellant filed a brief, and the

Secretary filed a brief.

Claims remanded by the Board are not on appeal. The Court has jurisdiction

pursuant to 38 U.S.C.

§§ 7252(a) and 7266(a) to review the September 6, 2007, Board decision.

A single judge may

conduct that review because the outcome in this case is controlled by the

Court’s precedents and “is

not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (

1990). For the following

reasons, the Court will vacate the Board’s September 2007 decision as to

the claim for service

connection for hypertension and remand the matter for readjudication.

I. FACTS

Mr. Harmon served on active duty in the U.S. Navy from May 1973 to May

1975 and again

from August 1975 to January 1979. R. at 2. During his 1972 enlistment

examination, Mr. Harmon’s

blood pressure (BP) was recorded at 134 over 80. R. at 23. In May 1975, he

suffered an allergic

reaction and was taken to the emergency room. R at 30. At that time, his

BP was 134 over 84. R. at

30. During his May 1975 separation examination, Mr. Harmon’s BP was

recorded at 129 over 92.

R. at 32. His BP was checked three more times, twice on May 8, and again

on May 9. R. at 32. His

BP readings on those days were 112 over 62, 118 over 66, and 110 over 66,

respectively. R. at 32.

In March 1976 another BP reading was taken and was 110 over 64. R. at 276.

A May 1976 BP

reading was 120 over 82. R. at 209. In September of 1978 BP readings were

again taken and

recorded at 116 over 80, 110 over 74, and 118 over 66. R. at 260, 263, 279.

During Mr. Harmon’s

December 1978 separation examination his BP was recorded at 108 over 78. R.

at 40-44. Beginning

in 2000 through 2006, Mr. Harmon was diagnosed and treated for a number of

different conditions,

including hypertension. R. at 139-98, 340-47.

In July 2003, Mr. Harmon submitted an application for service connection,

in part, for

hypertension. R. at 142, 143-54. In February 2004, the VA regional office (

RO) denied Mr.

Harmon’s claim on the basis that there was no medical evidence to

establish the existence of

hypertension during service or within one year of service and there was no

competent medical

evidence to establish a nexus between Mr. Harmon’s current diagnosis of

hypertension and his

military service. R. at 297-302. The rating decision noted that service

connection may be granted

on a presumptive basis under 38 C.F.R. § 3.309, but that Mr. Harmon did

not establish the existence

of hypertension of the requisite severity within the specified period of

time after military service.

R. at 299. He submitted a Notice of Disagreement on April 1, 2004. R. at

304-05. The RO issued

a Statement of the Case in January 2006. R. at 310-29. Mr. Harmon

perfected an appeal. R. at 34,

440.

During a hearing before the Board, Mr. Harmon reported that he had

hypertension prior to

leaving service. R. at 427. He testified that he was “held over” for three

days during his second

discharge examination as a result of high BP readings. R. at 427. He

stated that he did not have

additional

high

BP

readings

again

until

the

1980s.

R.

at

428.

On September 6, 2007, the Board issued the decision here on appeal. R. at

1-12. The Board

denied Mr. Harmon’s claim for service connection for hypertension because

there was no evidence

of hypertension during service or within one year of service and there was

no competent medical

evidence of record to establish a nexus between the Mr. Harmon’s present

diagnosis of hypertension

and his military service. R. at 1-7.

In his brief, Mr. Harmon asserts that the Board’s decision is clearly

erroneous because the

2

Board ignored evidence of record and that the Secretary failed in his

duty to assist by not ordering

a medical nexus examination. Appellant’s Brief (App. Br.) at 14,16. The

appellant asks the Court

to reverse and remand the Board decision on appeal. App. Br. at 1. In his

brief, the Secretary argues

that there is a plausible basis for the Board’s decision and that Mr.

Harmon has not demonstrated that

prejudicial errorhas been committed. Secretary’s Brief (Sec’yBr.) at 4.

The Secretaryasks the Court

to affirm the Board decision. Sec’y Br. at 8.

II. ANALYSIS

A. Service Connection

Establishing service connection generally requires medical or, in certain

circumstances, lay

evidence of (1) a current disability; (2) an in-service incurrence or

aggravation of a disease or injury;

and (3) a nexus between the claimed in-service disease or injury and the

present disability. See

Davidson v. Shinseki, ___F.3d___, No. 2009-7075, 2009 WL 2914339 (Fed. Cir.

Sept. 14, 2009),

Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App.

498, 506 (1995), aff’d

per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown,

7 Vet.App. 379, 384

(1995). A finding of service connection, or no service connection, is a

finding of fact reviewed

under the “clearly erroneous” standard in 38 U.S.C. § 7261(a)(4).

See Swann v. Brown,

5 Vet.App. 229, 232 (1993). “A factual finding ‘is clearlyerroneous 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.’” Herseyv. Derwinski, 2 Vet.App. 91, 94 (

1992) (quoting United

States v. U.S. Gypsum Co., 333 U.S. 364 (1948)). The Court may not

substitute its judgment for the

factual determinations of the Board on issues of material fact merely

because the Court would have

decided those issues differently in the first instance. See id.

Moreover, the Board is required to provide a written statement of the

reasons or bases for its

findings and conclusions on all material issues of fact and law presented

on the record; the 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.

See 38 U.S.C. § 7104(d)(1); Allday v. Brown,

7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992);

Gilbert v. Derwinski,

1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must

analyze the credibility

3

and 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. See Caluza, 7 Vet.App at 506; Gabrielson v. Brown, 7 Vet.App. 36,

39-40 (1994).

InthiscasetheBoardfound that there wasno

nexusbetweentheappellant’scurrentcondition

and his military service. R. at 7. As a basis for that determination the

Board cites a lack of medical

evidence indicating that the appellant suffered from hypertension while in

service. R. at 5-7. The

Board decision indicates that the lay evidence offered by the appellant to

support his claim was

excluded from the Board’s consideration of this case. R. at 6-7.

Specifically, the Board stated that

“thereis no indication that [theappellant] or his representativepossess

therequisiteknowledge, skill,

experience, training, or education to qualify as medical experts for his

statements to be considered

competent evidence.” R. at 6-7 (citing Espiritu v. Derwinski, 2 Vet.App.

492 (1992)). The Board

also stated that lay persons are not competent to offer testimony

regarding diagnosis or causation.

R. at 6-7. The Board committed error by categorically excluding the

appellant’s lay testimony

without further analysis.

In its role as factfinder, the Board must first “determin[e] whether lay

evidence is credible

in and of itself, i.e., because of possible bias, conflicting statements,

etc.” Buchanan v. Nicholson,

451 F.3d 1331, 1334-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3

Vet.App. 201, 204 (1992).

In certain situations, lay evidence may be used to diagnose a veteran’s

medical condition. See

Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay

evidence may be used to

diagnose a condition when “(1) a layperson is competent to identify the

medical condition, (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

“); Barr v. Nicholson, 21

Vet.App. 303, 307 (2007) (stating that “[l]ay testimony is competent . . .

to establish the presence

of observable symptomatology and ‘may provide sufficient support for a

claim of service

connection’” (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)));

Washington v. Nicholson, 21

Vet.App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is

competent to provide

information regarding visible, or otherwise observable, symptoms of

disability”). Further, lay

evidence maybe competent to show continuity of symptomatology under 38 C.F.

R. § 3.303(:). See

Davidson, ___F.3d at___, slip op. at 3 (rejecting the view that “competent

medical evidence is

4

required . . . [when] the determinative issue involves either medical

etiologyor a medical diagnosis.”

(citing Jandreau, 492 F.3d at 1376-77)); Savage v. Gober, 10 Vet.App. 488,

497 (1997). When

considering lay evidence, the Board should determine whether the veteran’s

disability is the type of

disability for which lay evidence is competent. See Jandreau, 492 F.3d at

1377, (cited in Robinson

v. Shinseki, 312 F. App’x. 336, 339, 2009 WL 524737 (Fed. Cir. 2009). If

the disability is of the type

for which lay evidence is competent, the Board must weigh that evidence

against the other evidence

of record in making its determination regarding the existence of service

connection. See Buchanan,

451 F.3d at1334-37.

The Board indicated in its analysis that it did not consider the lay

testimony of the appellant

because such evidence is categorically incompetent when offered for

purposes of determining

medical causation or diagnosis. R. at 6-7. This is an incorrect

application of law. See Jandreau, 492

F.2d at 1377, Buchanan, 451 F.3d at 1335. Accordingly, a remand is

necessary to allow the Board

to correctly consider the lay evidence and appropriately weigh the

evidence in accordance with law.

B. Duty To Assist – Medical Nexus Examination

Pursuant to 38 U.S.C. § 5103A, the Secretary’s duty to assist includes,

in appropriate cases,

the dutyto conduct a thorough and contemporaneous medical examination. See

Green v. Derwinski,

1 Vet.App. 121, 124 (1991). The Secretary’s duty to assist requires that

he provide a VA medical

examination to a claimant when there is (1) competent evidence of a

current disability or persistent

or recurrent symptoms of a disability; (2) evidence establishing that an

event, injury, or disease

occurred in service or, for certain diseases, manifestation of the disease

during an applicable

presumptive period for which the claimant qualifies; and (3) an indication

that the disability or

persistent orrecurrent symptomsofthedisabilitymaybeassociated

withtheveteran’s serviceorwith

another service-connected disability; but (4) insufficient competent

medical evidence on file for the

Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d);

Paralyzed Veterans of Am.

v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003);

Wells v. Principi, 326 F.3d

1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (

2006); 38 C.F.R.

§3.159©(4)(i)(2009). TheBoard’s”

ultimateconclusionthatamedicalexaminationisnot necessary

pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary,

capricious, an abuse of discretion,

or otherwise not in accordance with law’ standard of review.” McLendon, 20

Vet.App. at 81; see

5

Haas v. Shinseki, 22 Vet.App. 385, 388 (2009). The Board’s underlying

determinations whether the

appellant has a current disability and whether the appellant suffered an

in-service event, injury, or

disease are findings of fact subject to the “clearly erroneous” standard

of review. Id. at 82; see also

38 U.S.C. § 7261(a)(4).

The categorical exclusion of the lay evidence of record in this case from

the Board’s analysis

of the appellant’s claim necessarily indicates that the Board did not

properly analyze the third prong

of 38 U.S.C. § 5103A(d) when it determined that a VA medical examination

was not warranted. R.

at 6. The Board has the authority to determine whether lay evidence is

competent and to

appropriately weigh such evidence, but it must make those determinations

based upon the standard

articulated in Buchanan, Jandreau, and Davidson as discussed above. If

there is competent lay

evidence, such evidence must be considered when determining whether or not

to order a medical

nexus examination. This Court has held that 38 U.S.C. § 5103A(d)(2)(B)

establishes a “low

threshold” requirement for determining whether or not a medical nexus

examination is warranted.

McLendon, 20 Vet.App. at 83. Consequently, in order for the Secretary to

fulfill his duty to assist

the veteran, the Board must make a determination under the appropriate

legal standard as to whether

or not the offered layevidence is competent, and, if the evidence is

competent, whether that evidence

meets the low threshold described in McLendon for ordering a medical nexus

examination. In addition, in determining whether the medical evidence is sufficient to make a decision on the claim,

the Board must ensure that it does not rely on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (holding that the Board must point to medical basis other than its own unsubstantiated opinion to support its decision), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (1998). Although the Board noted that the appellant

had elevated BP readings of 128 over 92 and 132 over 84 during service (R. at 5), the Board concluded, without support, that “there is no evidence establishing that the veteran’s hypertension occurred during his military service.” R. at 6 (emphasis added). Whether the in-service BP readings were indicative of hypertension appears to be a medical question, especiallyin the absence of any reasons or bases from the Board as to how it determined that the in-service readings revealed normal BP. See Colvin, 1 Vet.App. at 175.

6

III. CONCLUSION

After consideration of the appellant’s and the Secretary’s briefs, and a

review of the record,

the Board’s September 6, 2007, decision is VACATED as to the claim for

service connection for

hypertension and the matter is REMANDED to the Board for further

proceedings consistent with

this decision.

DATED: October 14, 2009

Copies to:

Kenneth L. LaVan

General Counsel (027)

7

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I won FTCA tort , Section 1151 claim, accrued claim , and some other stuff with competent lay evidence.

When I re-opened the VA would not even consider my lay evidence.

How did I get medically dumb and lay incompetent in a short period of years?

In 2003 re-opened and I obtained 3 IMOs that basically laid out the exact same medical evidence and argument to the VA that I had made.

The IMO docs considered my evidence as well as their findings-

After over 6 years finally someone read the evidence ( at the BVA) and they awarded months ago.

You raise good points-

Lay evidence is competent when it can support symtomalogy and numerous other aspects of a claim.

It should be considered competent when the lay evidence refers to a strong medical treatise that can support the claim.

It doesnt happen often these days that VA fully considers lay evidence.

There is a widow's DIC claim awarded by BVA that at first glance one would consider an almost impossble claim to award.

She got the DIC with only one single piece of evidence-from the internet-along with the veteran's death certifcate and autopsy results.

I already detailed that case here at hadit before as to the evidence she found on the net- but it supports your point.

It all depends however on the nature of the disability as sometimes lay statements do not help at all.

Congrats to you for getting this award!

Edited by Berta

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Jim,

Apparently you had a judge that gave a whoop.

Some judges don't half listen ask no questions

and have their sub BVA attorneys research, write the decision

and just sign off on it.

I feel my second BVA judge cared about veterans benefits

but my first one just showed caring about catching his plane home on time.

jmho,

carlie

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