Caluza v. BrownCaluza v. Brown
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The appellant, Mario G. Caluza, appeals a February 25, 1993, Board of Veterans’ Appeals (Board or BVA) decision denying service connection for residuals of a shell-fragment wound (SFW) to his right leg. The appellant filed an informal brief, and the Secretary filed a brief. For the reasons that follow, the Court affirms the Board decision.
I. Background
The pro se appellant, World War II veteran Mario G. Caluza, had qualifying active-duty service (missing status and recognized guerilla service) in the Philippine Army from November 1944 to November 1945. Record (R.) at 5,17,22, 27; Supplemental (Suppl.) R. at 14. A September 1945 service medical record (SMR) did not indicate any musculo-skeletal defects. R. at 1, 18. An August 1947 affidavit signed by the veteran indicated he had received no wounds in service. R. at 24.
In September 1970, the veteran filed with a Veterans’ Administration (now Department *502of Veterans Affairs) (VA) regional office (RO) an application for VA compensation or pension for a 1945 right-foot wound; he stated that he had been treated for the wound in 1945 at the Army hospital at Camp Spencer, Luna, La Union, in the Philippines. Suppl. R. at 2-5. In a 1970 letter to the VARO, the veteran stated that he had been wounded in the “middle part” of his “right foot” during an encounter with the enemy; that he had been treated for a “few months” at the Army clinic at Camp Spencer; and that he was currently experiencing difficulty walking because of his injury. R. at 30. In October 1970, the RO requested the veteran’s SMRs. Suppl. R. at 13. The veteran submitted in January 1971 a December 1970 letter from a private physician, Dr. Acosta, who diagnosed “[r]heumatoid [a]rthritis, knee and ankle joints, right. Hypertension, moderate.” Suppl. R. at 10. A January 1971 RO decision denied service connection for a right-foot injury, noting that the veteran’s induction medical examination report and other SMRs were “not available”; that a September 1945 “discharge examination” had indicated no significant abnormalities; that the veteran had not claimed any wounds or illnesses in his August 1947 “processing affidavit”; and that Dr. Acosta had diagnosed rheumatoid arthritis in December 1970. Suppl. R. at 17. No appeal of the January 1971 RO decision is contained in the record on appeal.
In August 1987, the veteran again filed with the RO an application for service connection for a “1943” shrapnel wound to the “right lower leg”. R. at 32-35. He stated that he had been treated at a “[hjospital on the front line”. Ibid. The veteran submitted to the RO in April 1988 the following documents: (1) an April 1988 notarized “joint affidavit” signed by Cornelio Corpuz and Modesto Nabua, who stated that they were “former comrade[s]-in-arms” of the veteran; that the veteran had received a right-leg wound in an engagement with the enemy at Bessang Pass and had been taken to the “Army Camp Suyo” and later transferred to Camp Spencer; that he had received private medical treatment for the injury following his discharge in 1945; and that he was “still suffering pain sustained during the encounter” (R. at 38); (2) an undated medical certificate from Dr. Vito stating that he had first seen the veteran in May 1985; that the veteran suffered from (inter alia) generalized rheumatoid arthritis, limping gait, persistent pain, and peripheral numbness of the right leg due to a shrapnel wound; and that these conditions were “of long standing” and “may be attributable to wounds or [trauma] experienced during and immediately after” World War II (R. at 39); and (3) an April 1988 x-ray examination report diagnosing “[osteoarthritis [c]hanges [rjight [t]ibio-fibula” (R. at 40).
In a July 1988 decision, the RO determined that the veteran had not submitted new and material evidence to reopen his claim because no medical records had shown a right-leg injury during service and that, “[i]n the absence of complete clinical records showing diagnosis of or treatment during service for the veteran’s claimed conditions, the statements of others are insufficient to substantiate the claim for service incurrence”. R. at 43. In August 1988, the veteran filed with the RO a letter stating that, due to his financial situation, after his discharge he “was only treated by medicinal plants”. R. at 47. The veteran attached the following documents to his August 1988 letter: (1) an August 1988 notarized “joint affidavit” signed by Ceferino Corpuz and Bernardo Llarenas stating that the veteran had been treated only with medicinal plants following his discharge from service; that between 1970 and 1980 the veteran had been treated by a physician who prescribed different medications for the “intense and persistent pain [i]n his right leg”; and that the veteran was “still suffering from pain sustained during World War II” (R. at 48); and (2) a July 1958 medical certificate signed by Dr. Martinez, which diagnosed “[g]eneral debility and [p]ain in the right leg due to an old wound in the left [sic] leg” and indicated that the veteran had suffered right-leg pain and difficulty walking which the veteran had attributed to a shrapnel wound (R. at 49).
The RO apparently reopened the veteran’s claim, and, in a September 1988 decision, denied the claim because of the absence of official records showing a diagnosis of or treatment for a right-leg injury during service. R. at 51, 53. The veteran filed a *503February 1989 Notice of Disagreement. R. at 55. In July 1989, he filed a VA Form 1-9 (Appeal to the BVA) (R. at 63), and attached the following documents: (1) a July 1989 notarized statement by the veteran asserting that he had not carefully read the 1947 “processing affidavit” that he had signed at his discharge from service and that he had been wounded in an encounter with the “Japanese Forces in Bessang Pass” (R. at 67); (2) a July 1989 notarized letter signed by Vincente Galban, who stated that he had served in the same company with the veteran and that “during one of our encounter[s] with Japanese Forces ... in Bessang Pass ... a mortar shell fired by the enemy exploded in our line killing several and wounded several others of our comrades in arms; that Pvt. Mario G. Caluza was among the wounded, who was hit by a shrapnel on his right leg front portion....”; that he had had treatment at the battalion aid station (which never issued official medical records) for a few days before being recalled to the front lines; and that the veteran had often afterward complained of right-leg pain but was “forced to serve[ ] in the front lines until after General Yamashita surrendered” (R. at 68); (3) a July 1989 notarized letter from Pedro Frigillana, who stated that he had been assigned to a company that had joined the veteran’s company in the battle at Bessang Pass; that the veteran had been wounded by shrapnel hitting the front portion of his right leg between the knee and the ankle; and that he had been carried in -a litter to the temporary battalion aid station, “where no official medical records ... were ever prepared and issued to the patient” (R. at 69); (4) a July 1989 partially illegible notarized letter from Dr. Abena, who stated that the veteran had seen him in August 1946 and December 1948 for a right-leg injury caused by shrapnel (R. at 70); (5) a picture of the veteran (R. at 71); and (6) an article about the battle at Bessang Pass, which describes the battalions involved and the first-aid care rendered at battalion aid stations (R. at 72-78). A September 1989 RO decision confirmed and continued the previous denial. R. at 80, 85.
The veteran filed with the RO in October 1989 the following documents: (1) An October 1989 notarized letter from Dr. Abena, who stated that, after having gone through his “old clinical records and personal notes”, he had found that on August 20,1946, he had treated the veteran for a shrapnel wound to the right leg that was “a superficial scar, discolorated, swollen, and adherent with injury to Muscle Group XII on the mid tibio febular [sic] portion of his right leg which injury severely affected his [d]orsiflexion with characteristic severe pain on the knee joint” (R. at 89); (2) an October 1989 notarized letter from Pedro Frigillana, who stated that in early April 1945, during the battle at Bessang Pass, a mortar shell had exploded near his line and “after several minutes I saw [the veteran] limping to his right being aided by a comrade-in-arm[s] as they passed some 2 meters away from my position” (R. at 90); and (3) an October 1989 notarized letter from Vincente Galban, who stated that early in April 1945 a mortar shell had fallen on his line and “immediately after the said explosion I clearly saw [the veteran] fell [sic] and got hold of his right leg and then he limped back to where I am positioned ... [and] I aided him to the temporary Battalion Aid Station” (R. at 91).
In denying the claim in November 1989, the RO stated: “The evidence is insufficient to establish [service connection] ... in the absence of official service records showing diagnosis of or treatment for this condition”. R. at 94. In December 1989, the RO confirmed and continued the rating decisions of September 1988 and September and November 1989. R. at 100. In an April 10, 1990, decision, the BVA denied service connection for SFW residuals in the right leg. R. at 105-06. The veteran appealed to this Court, and in a July 17, 1992, unpublished memorandum decision, the Court vacated the BVA decision and remanded the matter, holding that the Board had provided an inadequate statement of reasons or bases for its decision and had misapplied
In a February 25, 1993, decision following remand, the BVA denied entitlement to service connection for SFW residuals in the *504right leg. R. at 6. The Board stated that the Court had directed the Board to readju-dicate on the basis of all the evidence and material of record, that the claim was well grounded, and that there was no duty to assist the veteran because he had not indicated that there were additional records to be obtained. R. at 6. The Board noted that the 1970 claim was for a wound to the right foot, whereas the veteran’s current claim was for a wound to the “anterior midtibial” area. R. at 7. As for the July 1958 medical certificate from Dr. Martinez, the Board found that it was “not an original document, [did] not contain any clinical findings descriptive or characteristic of residuals of a shrapnel wound”, and was “of little probative value”. Ibid. As to the medical certificate from Dr. Vito, the Board noted that he had stated that the wound might have occurred “after” World War II. R. at 9. Regarding the July and October 1989 affidavits from Dr. Abena stating that he had treated the veteran for a wound in 1946, the Board noted that the 1945 physical, the 1947 affidavit, and the 1970 report from Dr. Acosta made no mention of a shrapnel injury. Ibid.
The Board stated that, unlike conditions such as hearing loss or a psychiatric disorder which may become symptomatic some time after they are incurred, a gunshot wound should have been noted on contemporaneous documents. R. at 10. As to the lay statements, the Board noted that some stated that the veteran had been treated only at the battalion aid station, while others reported that he had later been transferred to Camp Spencer. The Board stated that the veteran had claimed in 1970 that he had been treated at Camp Spencer for a “few months”, and that if the wound had been that severe it would have been noted on the September 1945 examination. Ibid. The Board concluded that the evidence submitted by the veteran was not credible, and therefore was not “satisfactory” under
II. Analysis
A. Generally Applicable Law
Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” The Court has defined a well-grounded claim as follows: “A well[-]grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In addition, the Court held in Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (quoting section 5107(a)), that to be well grounded a claim must be accompanied by supportive evidence and that such evidence “must ‘justify a belief by a fair and impartial individual’ that the claim is plausible.” Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself. See Lathan v. Brown, 7 Vet.App. 359, 365 (Jan. 26, 1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)); see also Magana v. Brown, 7 Vet.App. 224, 227 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Lay evidence may provide sufficient support for a claim of service connection, and it is error for the Board to require medical evidence to support that lay evidence. See Layno v. Brown, 6 Vet.App. 465, 469 (1994) (citing Horowitz v. Brown, 5 Vet.App. 217, 221-22 (1993); Ascherl v. Brown, 4 Vet.App. 371, 376 (1993); Rhodes v. Brown, 4 Vet.App. 124, 126-27 (1993); Cuevas v. Principi, 3 Vet.App. 542, 547-48 (1992); Culver v. Derwinski, 3 Vet.App. 292, 297-98 (1992); Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991)). The truthfulness of evidence is presumed in determining whether a claim is well grounded. See Robinette v. Brown, — Vet.App. -, No. 93-985, slip op. at 10-11, 1994 WL 495078 (Sept. 12, 1994), mot. for recons. granted on other grounds (Oct. 21, 1994); King v. Brown, 5 Vet.App. 19, 21 (1993). The threshold of plausibility to make a claim well grounded is considerably lower than the threshold for new and material evidence to *505justify reopening a claim. See Lathan, 7 Vet.App. at 365 (citing Robinette, supra). A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under
Service connection for VA disability compensation purposes will be awarded to a veteran who served on active duty during a period of war or during a post-December 31, 1946, peacetime period, for any disease or injury that was incurred in or aggravated by a veteran’s active service or for certain diseases that were initially manifested to a degree of 10% or more within a specified presumption period after the date of separation from service. See
Contrary to the RO’s November 1989 statement that seemed to require evidence of service incurrence in “official service records” (R. at 94), the law, in
In the ease of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.
Pursuant to
The BVA 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
Where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial. See
B. Application of Law to Facts
1. Well-grounded Claim
As stated above, in order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), see Brammer and Rabideau, both supra; of incurrence or aggravation of a disease or injury in service (lay or medical evidence), see Layno and Cartright, both supra; and of a nexus between the in-service injury or disease and the current disability (medical evidence), see Lathan and Grottveit, both supra. The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. See Traut and Goodsell, both supra.
Presuming the truthfulness of evidence for the purpose of determining whether the claim is well grounded, as required by Robinette and King, both supra, the statements submitted by the veteran since the 1971 RO decision contain medical evidence of a current right-leg disability (Dr. Martinez’s medical certificate diagnosing general debility and pain in the veteran’s right leg (R. at 49); Dr. Acosta’s December 1970 letter diagnosing right-knee and ankle rheumatoid arthritis (SuppLR. at 10); Dr. Vito’s undated medical certificate that in May 1985 the veteran suffered from generalized rheumatoid arthritis, limping gait, persistent pain, and peripheral numbness of the right leg (R. at 39); and the April 1988 x-ray report diagnosing right “[t]ibio-fibula” osteoarthritic changes (R. at 40)); competent lay statements attesting to an in-service injury (the April and August 1988 “joint affidavits” signed by fellow servicemembers Corpuz and Nabua (R. at 38), and Corpuz and Llarenas (R. at 48); the veteran’s July 1989 statement that he had been wounded in a battle in Bessang Pass (R. at 67); and the July and October 1989 statements from fellow service-members Galban and Frigillana (R. at 68-69, 90-91)); and medical evidence that the current condition was related to the in-service injury (Dr. Abena’s July 1989 notarized letter that he had treated the veteran in August 1946 and December 1948 for a right-leg injury caused by shrapnel (R. at 70); Dr. Martinez’s 1958 diagnosis that the “general débil*507ity and [p]ain in the right leg” was due to an old wound in the left [sic] leg (R. at 49); and Dr. Vito’s undated medical certificate stating that the veteran’s right-leg debility was “of long standing” and “may be attributable to wounds or trauma experienced during and immediately after” World War II (R. at 39)). Presuming the truthfulness of the evidence, the Court holds that it made the claim well grounded. See Lathan and Robinette, both supra. The BVA on remand thus correctly adjudicated the claim on the merits upon consideration of all the evidence, as the Court’s 1992 memorandum decision had directed.
2.
In Smith, the Court noted that
a. Effect of
In any event, after further consideration, the Court concludes today that the effect of
Once this showing has been made, the government has the burden to rebut by clear and convincing proof....
Placing this burden on the government is consistent with the congressional intent to give veterans liberalized methods of proving [service connection and] ... comports with the general rule that where evidence required to prove a fact is peculiarly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward. See Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).
Jensen, 19 F.3d at 1417 (discussing
b. Three adjudication rules: In addition,
(i) “Reasonable doubt” rule: The first, rule (a), relating to resolving “every reasonable doubt” in favor of the veteran, requires some examination.
Moreover, the legislative history of
Against this background,
(ii) Clear and convincing evidence: As stated above, once the veteran has presented evidence which, by application of
(iii) Recording reasons for decision: As to adjudication rule (c), the requirement in the last sentence of
c. Satisfactory evidence: As to the first evidentiary element of
Black’s Law Dictionary defines “satisfactory evidence” as “[s]uch evidence as is sufficient to produce a belief that a thing is true; credible evidence”. Blaok’s Law Dictionary 1342 (1990). A similar test is set forth in Walker v. Collins, 59 F. 70, 74 (8th Cir.1893) (citing Bouvier’s Law Dictionary (14th ed.)), rev’d on other grounds, 167 U.S. 57, 17 S.Ct. 738, 42 L.Ed. 76 (1897). Webster’s defines “satisfactory” as “good enough to fulfill a need, wish, requirement, etc.” Webster’s New World Dictionary 1193 (3d ed. 1988).
In Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court indicated a middle path when it seemed to equate “satisfactory” evidence, in the context of
However, such a definition must not be applied in a way that would deprive
For example, in a case where a veteran presented a lay statement that he had received a particular wound in service, if the Board weighed the contrary evidence under the preponderance standard in analyzing the credibility of that lay statement, none of the rebuttal evidence would have to meet the clear-and-convincing standard. Such a process would improperly render
‘When ‘interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will *511take in connection with it the whole statute’ Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374 (1974) (quoting Brown v. Duchesne, 19 How. 183, 15 L.Ed. 595 (1857)); see also Talley v. Derwinski, 2 Vet.App. 282, 286 (1992) (citing Oakley v. City of Longmont, 890 F.2d 1128, 1132-33 (10th Cir.1989), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990)); Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) (determining “a statute’s plain meaning requires examining the specific language at issue and the overall structure of the statute”) (citing Bethesda Hospital Ass’n v. Bowen, 485 U.S. 399, 403-05, 108 S.Ct. 1255, 1258, 99 L.Ed.2d 460 (1988)). “In expounding a statute, we must ... look to the provisions of the whole law, and to its object and policy.” Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1849)). In order to give meaning to the requirement that the rebuttal evidence must meet the “clear and convincing” standard, the Court must limit the type of evidence that can be considered in the evaluation of credibility to that evidence which Congress must have intended be evaluated under the preponderance standard rather than the clear-and-convineing-evi-dence standard.
Credible testimony is that which is plausible or capable of being believed. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 52 (7th Cir.1971) (citing Lester v. State, 212 Tenn. 338, 370 S.W.2d 405, 408 (1963)); see also Weliska’s Case, 125 Me. 147, 131 A. 860, 862 (1926); Erdmann v. Erdmann, 127 Mont. 252, 261 P.2d 367, 369 (1953) (“A credible witness is one whose statements are within reason and believable....”). The term “credibility” is generally used to refer to the assessment of oral testimony. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) (“only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said”); NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962) (trier of fact “sees the witnesses and hears them testify, while the [NLRB] and the reviewing court look only at cold records”); Jackson v. Veterans Admin., 768 F.2d 1325, 1331 (Fed.Cir.1985) (trier of fact has opportunity to observe “demeanor” of witness in determining credibility).
The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See State v. Asbury, 187 W.Va. 87, 415 S.E.2d 891, 895 (1992); see also Burns v. HHS, 3 F.3d 415, 417 (Fed.Cir.1993) (testimony was impeached by witness’ “inconsistent affidavits” and “expressed recognition of the difficulties of remembering specific dates of events that happened ... long ago”); Mings v. Department of Justice, 813 F.2d 384, 389 (Fed.Cir.1987) (impeachment by testimony which was inconsistent with prior written statements). Although credibility is often defined as determined by the demeanor of a witness, a document may also be credible evidence. See, e.g., Fasolino Foods v. Banca Nazionale del Lavoro, 761 F.Supp. 1010, 1014 (S.D.N.Y.1991); In re National Student Marketing Litigation, 598 F.Supp. 575, 579 (D.D.C.1984).
In light of the general use of the term “credibility”, and its purpose in preserving the value of the unique insights of the trier of fact, and considering the two, disparate standards in
*512In the instant case, the BVA determined that the evidence submitted by the veteran was not credible. The determination of credibility is a finding of fact. See Smith (Brady) v. Derwinski, 1 Vet.App. 235, 237-38 (1991). Findings of fact by the BVA may be overturned by the Court only when they are “clearly erroneous”.
Neither could the 1945 medical examination have been properly reviewed under the preponderance standard as to the second evidentiary element of
On the facts of the current case, the Court holds that the BVA was not clearly erroneous in finding by a preponderance of the evidence that the new lay and medical evidence (submitted more than 40 years after the alleged event) was not credible, and thus not “satisfactory”, in light of its contradiction by the veteran’s 1947 affidavit. The 1947 affidavit was a comparatively contemporaneous statement by the veteran himself and one that is fundamentally at odds with his statements beginning 23 years later, in 1970. Here, the veteran’s own statement indicating that he did not incur a leg wound in service contradicts the gravamen of the newly submitted evidence. Because the 1947 affidavit and the internal inconsistencies in the lay evidence were enough by themselves to sustain the Board’s conclusion that the evidence was not satisfactory, the Board’s consideration of the 1945 medical examination report on the credibility question was not prejudicial error. See
d. Duty to assist: Where a well-grounded claim is submitted, the Secretary has a duty to assist. See Littke, supra. *513The Board stated that Dr. Abena’s October 1989 affidavit referred to old clinical records and personal notes but that copies of those records and notes “were not submitted”. R. at 8. There is no indication in the record that the RO ever sought to obtain Dr. Abe-na’s records and notes. Although the RO should have sought those records and notes, the failure to do so here was not prejudicial to the veteran (see
As to the question of the Board’s compliance with the reasons-or-bases requirement of
III. Conclusion
Upon consideration of the record and the briefs of the parties, the Court holds that the appellant has not demonstrated that the BVA committed error — in its findings of fact, conclusions of law, procedural processes, articulation of reasons or bases, or application of the benefit-of-the-doubt rule — that would warrant remand or reversal under
AFFIRMED.