Lead Opinion
The appellant, Bernard R. Smith, appeals an August 31, 1994, Board of Veterans’ Appeals (Board or BVA) decision denying entitlement to service connection for a varicocele. (Varicocele is “a varicose enlargement of the veins of the spermatic cord producing a soft compressible tumor mass in the scrotum.” Webster’s Medical Desk Dictionary 751 (1986).) The Board’s decision also denied entitlement to service cоnnection for residuals of a hemorrhoidectomy, but the appellant has not appealed that issue. The appellant has submitted a motion for remand in lieu of a brief. The Secretary has filed a response in opposition of the motion. After consideration of the record on appeal and the pleadings of the parties, the Court will vacate the
I. FACTS
The appellant served in the U.S. Army from June 1944 to April 1946. Record (R.) at 21. He initially claimed entitlement to service connection for a varicocele in January 1978. R. at 24-27. He submitted a diagnosis dated March 1978 of a varicocele above his left testicle. R. at 38. The regional office (RO) discovered that his service medical records had been lost in a fire at the National Personnel Records Center in 1973. R. at 31. The RO denied his claim on Marсh 1, 1978. R. at 34. A couple of weeks later, the appellant submitted a statement explaining that he had been kicked in the groin during basic training at Camp Blanding, after which he was unable to complete basic training due to the injury. R. at 41-42. He reported that he had been treated for this condition by Dr. Paul K. Good, but no treatment records were available. Ibid. The RO sent the appellant a letter requesting that he furnish the dates he was treated at Camp Blanding and any medical evidence which established the continuity of treatment from separation from service to the present. R. at 46. The appellant responded that he had not been able to obtain hospitalization records from Camp Blanding and that he was treated after discharge by Dr. Paul K. Good, but that those records were not available. R. at 48. A May 1978 RO decision referred to the appellant’s claim for servicе connection for a varicocele as an attempt to reopen and stated, ‘Vet[eran]’s claim is a duplicate of that denied by 3-1-78 rating due to not being shown in any service records. No new [and] material evidence submitted. Confirm prior denial.” R. at 51. The RO sent the appellant a letter dated May 24, 1978, stating:
The application which you recently filed for disability benefits is essentially a duplicate of a claim previously filed by you.
Our records show that we notified you on March 9, 1978 that your claim for varicose veins, left testicle was disallowed and that you were permitted to appeal this decision within one year from that time, otherwise that decision would become final unless you could submit new and material evidence. Since you have not presented any new and material evidence, no change in our previous decision is warranted and no actiоn on your duplicate claim will be taken.
R. at 53.
The appellant then wrote the RO a letter stating it had always been his belief that the Army “keep[s] very detailed records,” but that his Camp Blanding records were not available. R. at 56. He attached a form dated May 29, 1945, which informed the commanding officer at Camp Blanding that the appellant was to report for physical examination on June 1, 1945. R. at 58. The RO again decided that the appellаnt had not submitted any new and material evidence. R. at 61, 63.
In May 1985, the appellant submitted another statement reiterating that he had been kicked in the groin and, as a consequence, had not finished basic training. R. at 70-71. The RO determined that no new and material evidence had been submitted to reopen his claim for service connection. R. at 78. In December 1988, the appellant submitted copies of daily sick reports which noted that in August 1944 he hаd undergone treatment for an unspecified condition which preexisted service. R. at 114-19. The RO again found that the appellant had not submitted any new and material evidence to warrant reopening his claim. R. at 124.
In a personal hearing in July 1989, the appellant alleged that after he had been kicked in the groin in August 1944, his service records had been changed to show that the varicocele preexisted service to protect the officer who had kicked him. R. at 149. He also testified that the injury he sustained at that time had persisted over the years and had interfered with his sex life. R. at 151. The hearing officer found that no new and material evidence had been submitted. R. at 157-58. The appellant appealed that decision to the BVA which, in a March 1990 decision, considered the claim on a de novo basis and determined that a varicocele was not incurred in or aggravated by service. R. at 170-74.
On remand, the appellant submitted a sworn statement from his wife in which she stated:
I am intimately familiar with the physical capacity of my husband, being married to him prior to him entering into the service. Upon his discharge, I truly affirm, that my husband suffеred from a service related disability which interfered with sexual activity for the past 48 years; that I have personally witnessed discomfort, pain, anxiety, and occasional dysfunction as a result of such injury; that there is no treating physician, friend or person knowledgeable with the condition who is any longer alive.
R. at 266. On June 9, 1994, the BVA sent the appellant’s attorney a letter explaining that the BVA proposed to rely on “ ‘evidence developed or obtained by it subsequent to the issuance of the most recent’ Statement of the Case.... ” R. at 270. The letter went on to state:
A period of 60 days from the date of this letter is allowed for you to submit any additional argument or comment____
The Board will consider additional .evidence in this appeal only on written motion for good cause for its submission at this time and if the evidence is accompanied by a waiver of consideration by the agency of original jurisdiсtion.
R. at 270-71. Attached were a statement of the reliance the Board proposed to place on the evidence and excerpts from the pertinent treatises. R. at 272-92. No response was received to the invitation to submit within 60 days additional argument or comment, although apparently the White House forwarded to VA a copy of a letter the appellant had written to President Clinton regarding his quest for benefits. See R. at 294, 296. The Bоard’s decision now on appeal followed.
II. ANALYSIS
The appellant argues in his motion for remand that the BVA relied on medical treatises to support its denial of the appellant’s claim without providing the appellant with an opportunity to submit additional evidence as required by Thurber, supra, and Austin v. Brown,
In the interim, the Court of Appeals for the Federal Circuit upheld this Court’s decision in Barnett v. Brown,
In its decision, the Board stated:
The Board’s review of several surgical and neurological texts does not show that blunt trauma of the scrotum or groin causes or helps to cause a varicocele.... Those texts show that the left testicle is affected 90 percent of the time (the veteran’s varicocele is on the left) and that the cаuse is idiopathic or due to incompetent valves in the testicular veins____ The Board finds that these authorities are probative as the etiology [of] this varicocele. As a matter of law, as a lay person, the veteran’s testimony as to the cause of his condition is not competent evidence of causation. Gowen v. Derwinski,3 Vet.App. 286 , 288-89 (1992). [This is a memorandum decision and therefore of no precedential value. See Bethea v. Derwinski2 Vet.App. 252 , 254 (1992); but see Espiritu v. Derwinski2 Vet.App. 492 (1992).] Moreover, the veterаn has not cited any medical texts or authorities to support his theory. Since there is no medical authority to support his position, the incidental evidence showing that he was treated for an unspecified preexisting disorder in August 1944 and that his basic training was abbreviated is not relevant as those circumstances are germane to the issue of service incurrence only if one accepts his medically unsupported position that trauma caused the varicocele.
R. at 11-12. The Board also found that the preponderance of the evidence was against the appellant’s alternative claim that any preexisting varicocele was aggravated by service. R. at 12.
Thurber,5 Vet.App. at 126 , requires that before the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [Statement of the Case] or [Supplemental Statement of the Case] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence ... and a reasonable opportunity for the claimant to respond to it.
In Austin, this Court dealt with the same issue — a letter advising the appellant of the BVA’s intended reliance on evidence developed after the issuance of the last Statement of the Cаse and its requirement that good cause be shown to submit additional evidence. As this Court explained in Austin, the appellant’s right to submit evidence under Thurber cannot be premised on a preliminary showing of “good cause.” Austin,
The Board suggests in its decision that the appellant’s testimony regarding in-service onset of his condition is not credible because he has not suppоrted that testimony with medical documentation.
Since there is no medical authority to support his position, the incidental evidence showing that he was treated for an unspecified pre-existing disorder in August 1944 and that his basic training was abbreviated is not relevant as those circumstances are germane to the issue of service incurrence only if one accepts his medically unsupported position that trauma caused the vаricocele.
R. at 12. Regarding the appellant’s alternative claim that, if his varicocele did preexist service, it was aggravated thereby, the Board stated it did “not find that the veteran’s testimony is particularly credible in view of the absence of records of treatment during the more than three decades which elapsed during the time after his discharge from service and his initial claim for service connection.” R. at 12. “Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone.” Cartright v. Derwinski,
Finally, as the appellant points out in his motion for remand, VA failed to follow the VA Adjudication Manual, (M21-1) Part III, para. 4.22(c)(2), which requires that
If benefits were denied prior to May 18, 1990, and a case for which [the Army Surgeon General’s office (SGO) ] records may exist (Army veteran with service during the periods 1942-1945 or 1950-54) is encountered during normal processing, the regional office will reopen the claim on its own initiative to obtain any SGO records.
The record on appeal does not show that VA attempted to obtain any SGO records. Also, where, as here, service medical records have been destroyed or lost, the Bоard has a duty to advise the claimant to obtain other forms of evidence. Dixon v. Derwinski,
III. CONCLUSION
Accordingly, the Board’s decision regarding denial of service connеction for a varicocele is VACATED and the matter REMANDED for further adjudication. On remand, the appellant will be free to submit additional evidence and argument, and the Board must seek any other evidence it thinks is necessary to the resolution of the appellant’s claim. Quarles v. Derwinski,
ORDER ON RECONSIDERATION
Jan. 17, 1997
On consideration of the motion of the Secretary for reconsideration by the panel, it is by the panel
ORDERED that the motion for recоnsideration is otherwise denied. It is further by the full Court
ORDERED that the motion for review by the full Court is denied.
Dissenting Opinion
with whom KRAMER, Judge, joined, dissenting:
We voted for the Secretary’s motion for en banc review of this two-judge opinion because we believe that the Secretary is correct that the Court’s holding that the claim here is well grounded is essentially inconsistent with the court’s easelaw requiring medical-nexus evidence where the question at issue is of a medical nature (for example, etiology, causation, or diagnosis). See Caluza v. Brown,
As the Secretary points out there is no “competent evidence establishing
In contrast, the Board concluded:
Since there is no medical authority to support [the appellant’s] position [that a kick in the groin caused his varicocele], the incidental evidence showing that he was treated for an unspecified pre-existing disordеr in August 1944 and that his basic training was abbreviated is not relevant as those circumstances are germane to the issue of service incurrence only if one accepts his medically unsupported position that trauma caused the varicocele.
R. at 12. We believe that the Board is correct that lay evidence cannot be competent evidence of medical causation and that such evidence is required to well ground this claim. See Stadin v. Brown,
Although the Court in its opinion does not cite 38 C.F.R. § 3.303(b) (1995), regarding continuity of symptomatology, the Secretary seems to suggest in his motion that the Court’s opinion is implicitly relying on continuity of symptomatology to well ground the claim and that the conditions under which that might be permissible are not present because this case does not involve a potentially chronic condition that arose in service. On November 20, this Court issued a briefing order in Savage v. Brown,
In Caluza, the Court reiterated that medical evidence of nexus to service was generally required in order to well ground a service-connection claim. Caluza, supra (citing Grottveit, supra). As the Secretary’s motion indicates, the Court’s opinion in Smith will add confusion to the Court’s easelaw on the question of the nature and quality of the evidence needed to well ground a claim. Compare Tirpak v. Derwinski,
Notes
. Indeed, there is no competent medical evidence even suggesting such causation; evidence less definitive than that which establishes a fact meets the degree of certitude necessary to well ground a claim, see Meyer v. Brown, 9 Vet.App. 425, 432 (1996) ("[t]he amount of evidence sufficient to make a claim well grounded differs from the amount sufficient for an award of service connection”); Robinette v. Brown,
Concurrence Opinion
concurring:
I agree with the dissenting members. The Board, correctly, based on the precedent from this Court that was cited and relied upon in its decision, found the ease not well grounded. That finding, if correct, would obviate consideration of the issues upon which remand was based. Nonetheless I vote to deny en bane consideration. This case provides no precedent except in a very narrow range of eases that are factually identical. As such it is not a case of “exceptional importance” nor does it purport to vitiate our general rule that requires medical nexus. In short this case is an aberration. This judge, at least, will continue to apply the precedents cited in the dissent that preclude lay persons from supplying medical nexus to “well ground” a claim.