Caluza v. Brown, No. 90-0818

Caluza v. Brown, No. 90-0818

UNITED STATES COURT OF VETERANS APPEALS
No. 90-0818
MARIO G. CALUZA, APPELLANT,
V.
JESSE BROWN,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided April 12, 1995 )
Mario G. Caluza, pro se.
Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General Counsel; Pamela
L. Wood, Deputy Assistant General Counsel; and Craig M. Kabatchnick were on the brief for the
appellee.
Before HOLDAWAY, IVERS, and STEINBERG, Judges.
STEINBERG, Judge: 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 musculoskeletal 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 of
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.2
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 “[h]ospital 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 “[o]steoarthritis [c]hanges [r]ight [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.3
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 February 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.4
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 38 U.S.C. § 1154(b)
and its implementing regulation, 38 C.F.R. § 3.304(d) (1994). The Court retained jurisdiction and
ordered the Secretary to file with the Clerk of the Court a copy of any Board decision on remand.
In a February 25, 1993, decision following remand, the BVA denied entitlement to service
connection for SFW residuals in the right leg. R. at 6. The Board stated that the Court had directed
the Board to readjudicate 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.5
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 section 1154(b), in that the other evidence “clearly rebutted” the incurrence of
any SFW to the right leg during service. R. at 11. A timely appeal to this Court followed.
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, __ Vet.App. __, __, No.
93-62, slip op. at 10 (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 (Sept. 2, 1994), mot. for recons. granted on other grounds (Oct. 11, 1994);
King v. Brown, 5 Vet.App. 19, 21 (1993). The threshold of plausibility to make a claim well.6
grounded is considerably lower than the threshold for new and material evidence to justify reopening
a claim. See Lathan, __ Vet.App. at __, slip op. at 11 (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 38 U.S.C. § 7261(a)(1). See Grivois v. Brown, 6 Vet.App. 136, 139 (1994);
Grottveit, supra.
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 38 U.S.C. §§ 1110, 1112(a), 1131,
1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307 (1994). When a disease is first diagnosed after service,
service connection may nevertheless be established by evidence demonstrating that the disease was
in fact “incurred” during the veteran’s service, or by evidence that a presumption period applied. See
Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (“[p]roof of direct service connection . . .
entails proof that exposure during service caused the malady that appears many years later”); Cosman
v. Principi, 3 Vet.App. 503, 505 (1992) (“even though a veteran may not have had a particular
condition diagnosed in service, or for many years afterwards, service connection can still be
established”); see also 38 C.F.R. § 3.303(d); Traut v. Brown, 6 Vet.App. 495, 497 (1994) (applying
seven-year presumption period for manifestation of multiple sclerosis to a degree of 10% or more);
Goodsell v. Brown, 5 Vet.App. 36, 43 (1993) (applying three-year presumption period for pulmonary
tuberculosis manifested to a degree of 10% or more); Godfrey v. Derwinski, 2 Vet.App. 352, 356
(1992). A service-connection claim must be accompanied by evidence which establishes that the
claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet.App. 141, 144
(1992); see also Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent “proof of a present
disability there can be no valid claim”).
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 38 U.S.C. § 1154(b), specifically allows
combat veterans, in certain circumstances, to use lay evidence to establish service connection of a
disease or injury. See, e.g., Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994); Chipego v.
Brown, 4 Vet.App. 102, 105 (1993); Sheets v. Derwinski, 2 Vet.App. 512, 515 (1992); Smith
(Morgan) v. Derwinski, 2 Vet.App. 137, 140 (1992). Section 1154(b) provides:
In the case 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.7
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.
38 U.S.C. § 1154(b). The regulation implementing section 1154(b) is at 38 C.F.R. § 3.304(d).
Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a well-grounded claim, the
Board is required to assist that claimant in developing the facts pertinent to the claim. See 38 C.F.R.
§ 3.159 (1994); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). The duty to assist may, in an
appropriate case, include the duty to seek to obtain pertinent private medical records. See Masors
v. Derwinski, 2 Vet.App. 181, 186-87 (1992); Littke, supra. Where the record does not adequately
reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of
the statutory duty to assist requires a thorough and contemporaneous medical examination. See
Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124
(1991). “If a diagnosis is not supported by the findings on the examination report or if the report
does not contain sufficient detail, it is incumbent upon the rating board to return the report as
inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1994); see also Schafrath v. Derwinski,
1 Vet.App. 589, 595 (1991).
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 38 U.S.C. § 7104(d)(1); Masors, 2 Vet.App. at 188; Gilbert
v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board’s statement
of reasons or bases must account for the evidence which it finds to be persuasive or unpersuasive,
analyze the credibility and probative value of all material evidence submitted by and on behalf of
a claimant, and provide the reasons for its rejection of any such evidence. See Gabrielson v. Brown,
7 Vet.App. 36, 40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon v. Derwinski,
2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) (Hatlestad I);
Gilbert, supra. The Court reviews BVA factfinding under a “clearly erroneous” standard; “if there
is a ‘plausible’ basis in the record for the factual determinations of the BVA, . . . [the Court] cannot
overturn them”. Gilbert, 1 Vet.App. at 53; 38 U.S.C. § 7261(a)(4).
Where an appellant has not been harmed by an error in a Board determination, the error is
not prejudicial. See 38 U.S.C. § 7261(b) (“[i]n making the determinations under subsection (a) of.8
this section, the Court shall take due account of the rule of prejudicial error”); Yabut v. Brown,
6 Vet.App. 79, 83 (1993); Godwin v. Derwinski, 1 Vet.App. 419, 427 (1991).
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 (Suppl. R. 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 servicemembers 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 debility 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. 38 U.S.C. § 1154(b).9
Section 1154(b) deals with the question whether a particular disease or injury was incurred
or aggravated in service — that is, what happened then — not the questions of either current disability
or nexus to service, as to both of which competent medical evidence is generally required. See
Brammer, Rabideau, Lathan, and Grottveit, all supra. By providing that “lay or other evidence” that
meets the requirements of section 1154(b) shall be accepted as “sufficient proof of
service-connection of any disease or injury alleged to have been incurred in or aggravated by . . .
service”, section 1154(b) relaxes the evidentiary requirements for adjudication of certain
combat-related VA-disability-compensation claims — both as to the evidence that a claimant must
submit in order to make such a claim well grounded and as to the evidence necessary in order to
establish service connection of a disease or injury. The term “service-connection” is used in section
1154(b) to refer to proof of incurrence or aggravation of that disease or injury in service, rather than
to the legal standard for entitlement to payments for disability. See 38 U.S.C. § 101(16) (defining
“service connected” with respect to “disability” as meaning that “such disability was incurred or
aggravated” in service); cf. 38 U.S.C. §§ 1113(a), (b), 1116, 1133, 1154(a).
In Smith, the Court noted that section 1154(b) was enacted in 1941 to enable veterans who
had been engaged in combat with the enemy to use, under certain circumstances, lay evidence to
prove incurrence of a particular disease or injury in service. Smith, 2 Vet.App. at 139. The purpose
of section 1154(b), as noted in the legislative history, was “to overcome the adverse effect of a lack
of official record of incurrence or aggravation of a disease or injury and treatment thereof”. Id. at
140 (citing H.R. Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035).
As the Federal Circuit stated recently: “Section 1154 makes it abundantly clear that special
considerations attend the cases of combat veterans . . . [and] evinces a strong intent to provide
generously for the service-connected disabilities of combat veterans by liberalizing the methods of
proof allowed.” Jensen, 19 F.3d at 1416-17.
a. Effect of section 1154(b): In allowing a combat veteran to use “lay or other evidence” to
prove service incurrence or aggravation of conditions alleged to have been incurred in combat,
section 1154(b) has three evidentiary elements: (1) The evidence must be “satisfactory”; (2) it must
be “consistent with the circumstances, conditions, or hardships of [combat] service”; and (3) it can
prevail “notwithstanding the fact that there is no official record” of the incurrence or aggravation of
the disease or injury during service. There might appear to be some conflict in the Court’s
jurisprudence as to what happens when the three elements of section 1154(b) are satisfied. In Smith,
the Court stated that neither section 1154(b) nor its implementing regulation, § 3.304(d), “create[s]
a presumption in favor of combat veterans in determinations of service connection”. Smith, 2
Vet.App. at 140. In Horvath v. Derwinski, 2 Vet.App. 240, 241 (1992), the Court referred to section.10
1154(b) as establishing a presumption in favor of the veteran when the three statutory elements were
present. In neither case was the characterization of whether there is such a “presumption” necessary
to the Court’s holding, for in each case the Court vacated the BVA decision on appeal because it
failed to apply section 1154(b) properly. See ibid.; Smith, 2 Vet.App. at 141. Also, there may be no
real conflict between the Court’s pronouncements, because Smith can be read as stating no more than
that any presumption established is not conclusive, that is, that it is rebuttable by “clear and
convincing evidence to the contrary”.
In any event, after further consideration, the Court concludes today that the effect of section
1154(b), whether or not it is labelled as due to a “presumption”, is that when in the case of a combat
veteran the three section 1154(b) elements are satisfied section 1154(b)’s relaxation of adjudication
evidentiary requirements dictates that the veteran’s “lay or other evidence” be accepted as sufficient
proof of service incurrence or aggravation unless there is “clear and convincing evidence” that the
disease or injury was not incurred or aggravated in service or during an applicable presumption
period. This reading comports most logically and clearly with the words of section 1154(b), which
do not include the word “presumption”. The Court notes the following discussion of the section by
the U.S. Court of Appeals for the Federal Circuit in Jensen:
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 . . . (1961).
Jensen, 19 F.3d at 1417 (discussing 38 U.S.C. §§ 1153, 1154; 38 C.F.R. § 3.306). Although the
opinion speaks in terms of a burden of coming forward being shifted to the government, the Court
finds the concept of VA’s adjudication evidentiary requirements being relaxed more in keeping with
the “nonadversarial nature” of the VA adjudication system, see Douglas v. Derwinski, 2 Vet.App.
435, 442-43 (1992) (en banc), in which the Department is not a party trying to disprove a claim;
indeed, VA’s special obligations to assist claimants are the very antithesis of adversarial claims
adjudication. See, e.g., 38 U.S.C. § 5107(a) (once well-grounded claim is submitted, Secretary shall
assist claimant in “developing the facts pertinent to the claim”); § 5107(b) (when there is
approximate balance of positive and negative evidence on merits of claim, benefit of doubt will be
given to claimant); § 7722(c), (d) (Secretary has duty to provide information on VA benefits and
services, and aid and assistance in preparation and presentation of claims); 38 C.F.R. §§ 3.103, 3.159
(1994)..11
b. Three adjudication rules: In addition, section 1154(b) includes three adjudication rules
for the application of section 1154(b) to lay evidence in the case of a veteran who was “engaged in
combat with the enemy”: (a) “[E]very reasonable doubt” is to be resolved “in favor of the veteran”
in determining if the three elements are met; (b) service connection (incurrence or aggravation in
service) “may be rebutted by clear and convincing evidence to the contrary”; and (c) the “reasons for”
the decision on service connection (that is, service incurrence or aggravation of a disease or injury,
as explained above) “shall be recorded in full”.
(i) “Reasonable doubt” rule: The first, rule (a), relating to resolving “every reasonable
doubt” in favor of the veteran, requires some examination. Section 5107(b) provides that, as to any
claim for VA benefits, when the evidence is in equipoise “the benefit of the doubt in resolving each
. . . issue shall be given to the claimant”. See Gilbert, 1 Vet.App. at 54 (unless preponderance of
evidence is against claim, it must be granted). This raises the question whether and, if so, how
section 1154(b) “reasonable doubt” differs from section 5107(b) “benefit of the doubt”. The
requirement that VA resolve reasonable doubt in favor of the veteran seems the same in both
sections. See 38 C.F.R. § 3.102 (1994) (using “reasonable doubt” and codified into law by section
5107(b) according to the legislative history of section 5107(b) discussed below).
Section 1154(b) seems different, however, in not expressly requiring, as does section
5107(b), that the evidence be in equipoise before the benefit of that reasonable doubt is given. The
phrase “reasonable doubt” is defined in 38 C.F.R. § 3.102 as a doubt “which exists because of an
approximate balance of positive and negative evidence”. Hence, § 3.102 defines “reasonable doubt”
as including the section 5107(b) equipoise requirement. That “reasonable doubt” in § 3.102
conditions the “reasonable doubt” rule included in section 1154(b) is made clear by the regulation’s
stating: “The reasonable doubt doctrine is also applicable even in the absence of official records,
particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and
is consistent with the probable results of such known hardships.” 38 C.F.R. § 3.102.
Moreover, the legislative history of section 5107(b) indicates that § 3.102 correctly expresses
the intent of Congress in enacting section 5107(b). The final agreement between the Senate and
House of Representatives on the provision that became section 5107(b) was explained as follows in
the explanatory statement on the compromise agreement on the Veterans’ Judicial Review Act
(VJRA), Pub. L. No. 100-687, Div. A, 102 Stat. 4105 (1988): “The Senate bill (section 101) and the
House amendment (section 6) would amend chapter 51 of title 38 to add a section which would
codify the burden of proof and reasonable doubt standards in VA claims adjudication proceedings
currently provided for by regulation (38 C.F.R. [§§] 3.102 and 3.103)”. See EXPLANATORY
STATEMENT ON COMPROMISE AGREEMENT ON DIVISION A, Pub. L. No. 687, 100th Cong., 2d Sess..12
(1988), reprinted in 1988 U.S.C.C.A.N. 5834, 5835. Thus, the Court holds that, although section
1154(b) does not expressly state that the evidence must be in equipoise before the veteran receives
the benefit of the doubt, section 1154(b) adjudication rule (a) is substantively identical to the
benefit-of-the-doubt rule in section 5107(b) and so is applicable only when the evidence is in
equipoise.
Against this background, § 3.102 is a valid exercise by the Secretary of his general
rulemaking authority under 38 U.S.C. § 501(a)(1), (4) to “prescribe all rules and regulations which
are necessary or appropriate to carry out the laws administered by the Department and are consistent
with those laws, including . . . regulations with respect to the nature and extent of proof and evidence
[and] . . . the manner and form of adjudication”. See Sandoval v. Brown, 7 Vet.App. 7, 9 (1994);
Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) (“Secretary has very broad powers to
‘prescribe . . . regulations'”); Duro v. Derwinski, 2 Vet.App. 530, 531 (1992)). Similarly, the
application of the “reasonable doubt” definition under section 5107(b) and § 3.102 to the “reasonable
doubt” provision in section 1154(b) is consistent with the laws pertaining to VA benefits and
adjudication and hence is also a valid rulemaking exercise under sections 501(a), 1154(b), and
5107(b).
(ii) Clear and convincing evidence: As stated above, once the veteran has presented
evidence which, by application of section 1154(b)’s adjudication rule (a), has established the three
elements of section 1154(b), section 1154(b)’s adjudication rule (b) comes into play and relaxes the
adjudication evidentiary requirements, so that the lay evidence prevails unless clear and clear
convincing evidence demonstrates that the disease or injury was not incurred or aggravated in
service. “Clear and convincing evidence” is an intermediate standard of proof between “beyond a
reasonable doubt” (as applied in criminal cases) and a “fair preponderance of the evidence”. See
Olson v. Brown, 5 Vet.App. 430, 434 (1993) (citing Gilbert, 1 Vet.App. at 53-54). In reviewing a
Board determination as to application of the “clear and convincing evidence” burden of proof, the
standard of review in this Court would be the standard for reviewing a Board decision on a mixed
question of law and fact — the application of the “clear and convincing” legal standard to the facts
of the particular case — that is, whether the Board determination is “arbitrary and capricious”. See
Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (holding that selection of a diagnostic code
is a question of application of law to facts and is subject to Court review on arbitrary-and-capricious
standard). But cf. Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991) (whether facts are sufficient to
meet legal standard for “clear and unmistakable evidence” to rebut presumption of soundness is
question of law subject to de novo Court review)..13
(iii) Recording reasons for decision: As to adjudication rule (c), the requirement in the last
sentence of section 1154(b) that the Board shall “record in full” its reasons for granting or denying
service connection in each case was superseded by the later enactment in the VJRA in 1988 of the
substantively identical and global provisions of 38 U.S.C. § 7104(d)(1), which require the Board,
as a general matter, to provide an adequate statement of “reasons or bases” for its decision as to all
material findings of fact and conclusions of law. VJRA, § 205, 102 Stat. at 4111; see Gilbert, 1
Vet.App. at 57 (Board must identify those findings it deems crucial to its decision and account for
the evidence which it finds to be persuasive or unpersuasive); see also Gabrielson, supra.
c. Satisfactory evidence: As to the first evidentiary element of section 1154(b), the Court
must determine the meaning of the term “satisfactory lay or other evidence”. “Satisfactory evidence”
has been interpreted in different contexts to mean everything from evidence which convinces
“beyond a reasonable doubt” or “to a reasonable certainty” (see, e.g., Shriver v. Union Stockyards
Nat’l Bank, 232 P. 1062, 1066 (Kan. 1925); Constantin v. McNeely, 141 So. 2d 684, 688 (La. Ct.
App. 1962); Cole v. McClure, 102 N.E. 264, 266 (Ohio 1913)), to “prima facie evidence” (State v.
Intoxicating Liquors, 4 A. 229, 230 (Vt. 1886)). The Supreme Court has stated that association on
the job is not “satisfactory evidence” of violation of a parole restriction forbidding association with
other ex-convicts. Arciniega v. Freeman, 404 U.S. 4, 4 (1971). The U.S. Court of Customs and
Patent Appeals has defined “satisfactory evidence”, as used in section 489 of the Tariff Act of 1930,
to mean “[p]roof of the circumstances and conditions, and a full and candid explanation thereof”.
B.K. Elliott Co. v. United States, 44 C.C.P.A. 189, 192 (1957) (quoting Linen Thread Co. v. United
States, 13 Ct. Cust. 301 (1925)). In an insurance-contract suit, “satisfactory” evidence of the
insured’s disability was held to be that which “might reasonably inform the company of its insured’s
disability”. Aetna Life Ins. Co. v. Moyer, 113 F.2d 974 (3d Cir. 1940).
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”. BLACK’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 (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 section 1154(b), 38 C.F.R. § 3.304(f), and VA’s
Adjudication and Procedure Manual, M21-1, with “credible” evidence. Zarycki, 6 Vet.App. at 100
(“[i]f the BVA determines that . . . lay testimony is satisfactory, e.g., credible”); see also West.14
(Carleton) v. Brown, 7 Vet.App. 70, 76 (1994). In view of the caselaw discussed above, the Court
holds that “satisfactory evidence” in section 1154(b) means “credible evidence”.
However, such a definition must not be applied in a way that would deprive section 1154(b)
of effect — the benefit to the claimant that once the three evidentiary elements of 1154(b) are met,
the claimant’s lay evidence prevails unless it is rebutted by “clear and convincing evidence to the
contrary”. As pointed out above, clear and convincing evidence is a higher evidentiary standard than
the preponderance-of-the-evidence standard imputed by the benefit-of-the-doubt rule, because the
evidence must be in equipoise before the benefit of the doubt applies. See Olson, supra. If the
Board, in making its assessment of credibility, were to weigh the rebuttal evidence under the
preponderance standard, then the requirement that the rebuttal evidence must meet the higher, “clear
and convincing” evidence standard would be rendered meaningless.
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 section 1154(b)
essentially inoperative.
“When ‘interpreting a statute, the court will not look merely to a particular clause in which
general words may be used, but will take in connection with it the whole statute'”. Kokoszka v.
Belford, 417 U.S. 642, 650 (1974) (quoting Brown v. Duchesne, 19 How. 183 (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 (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 (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 (1975) (quoting United
States v. Heirs of Boisdore, 8 How. 113, 122 (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-convincing-evidence 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, 370 S.W.2d 405, 408
(1963)); see also Weliska’s Case, 131 A. 860, 862 (Me. 1926); Erdmann v. Erdmann, 261 P.2d 367,
369 (Mont. 1953) (“A credible witness is one whose statements are within reason and believable.15
. . . .”). 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 (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 (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, 415 S.E.2d 891, 895 (W. Va.
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 section
1154(b) for weighing evidence — the generally applicable requirement that there be a preponderance
of the evidence against the claim as to each material element of the claim and the requirement that
the Secretary deny the claim only if he finds clear and convincing evidence against the claim — the
Court holds that certain restrictions apply in the determination by the BVA whether a veteran’s “lay
or other evidence” is “satisfactory”, i.e., “credible”. In the case of oral testimony, a hearing officer
may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the
consistency of the witness’ testimony with other testimony and affidavits submitted on behalf of the
veteran. In determining whether documents submitted by a veteran are “satisfactory” evidence under
section 1154(b), a VA adjudicator may properly consider internal consistency, facial plausibility, and
consistency with other evidence submitted on behalf of the veteran.
In 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”. 38 U.S.C. § 7261(a)(4); see Gilbert, supra. Accordingly, we
must review under the “clearly erroneous” standard the Board’s determination in the instant case that
the lay evidence was not credible and, therefore, not satisfactory. The Board cited internal.16
inconsistencies in the lay statements, the fact that the 1945 medical examination did not note any leg
wound, and the statement in the veteran’s 1947 affidavit that he had not received any wounds in
service. Although the Board was correct in considering the veteran’s 1947 affidavit and the
inconsistencies in the lay statements in its determination of credibility, the Board should not have
considered the 1945 medical examination as to this evidentiary element of section 1154(b). That
evidence, because it was submitted by the Secretary and was not an affidavit, document, or testimony
submitted on behalf of the veteran, should not have been reviewed, under the preponderance
standard, to determine credibility.
Neither could the 1945 medical examination have been properly reviewed under the
preponderance standard as to the second evidentiary element of section 1154(b), which provides that
evidence must be “consistent with the circumstances, conditions, or hardships of [combat] service”.
To allow such a medical report to be used to establish the second evidentiary element would violate
the third evidentiary element, which provides that the veteran’s “lay or other evidence” can prevail
“notwithstanding the fact that there is no official record” of service incurrence. The 1945 medical
record did not affirmatively establish that the veteran had no residuals of a shrapnel wound, but
merely stated “OK” as to “musculo-skeleton defects”. R. at 18. A notation of “OK” could be
consistent with the veteran’s having residuals of a wound but being functional (i.e., ambulatory) at
the time of the examination. As the legislative history of section 1154(b) states, the purpose of the
statute is “to overcome the adverse effect of the lack of official record of incurrence or aggravation
of a disease or injury and treatment thereof”. H.R. REP. NO. 1157, 77th Cong., 1st Sess. (1941),
reprinted in 1941 U.S.C.C.A.N. 1035. Therefore, a medical record should generally be weighed
under the clear-and-convincing-evidence standard, after the adjudication evidentiary requirements
have been relaxed, rather than under the preponderance standard in the application of the second
evidentiary element. If a contemporaneous medical record had affirmatively indicated that combat
“circumstances, conditions, or hardships” did not exist (for example, by suggesting that a veteran had
been hospitalized at a time he asserted he was in battle), such a medical report could be used to show
that the second evidentiary element (consistency with the circumstances, conditions, or hardships
of combat service) had not been met.
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..17
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 38 U.S.C. § 7261(b); Yabut and Godwin, both supra. Having found that the new evidence
was “clearly” not credible, the Board quite properly never reached whether that evidence was
rebutted by “clear and convincing evidence to the contrary” (adjudication rule (b) in section 1154(b)).
d. Duty to assist: Where a well-grounded claim is submitted, the Secretary has a duty to
assist. See Littke, supra. The 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. Abena’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 38 U.S.C. § 7261(b); Yabut and Godwin, both supra), because
the earliest asserted date of treatment by Dr. Abena was August 20, 1946. Any record of treatment
of a leg wound on August 20, 1946, could not be dispositive on the issue of service connection under
the facts of this case, because as of August 1946 the veteran’s creditable service had been concluded
nine months earlier. Also, complete fulfillment of the duty to assist might have required that VA
provide a contemporaneous examination. See Suttmann, supra. However, it seems the remotest
possibility that such an examination could reveal more than the presence of current residuals of a leg
wound, and not that that wound occurred between November 1944 and November 1945, 50 years
ago. Hence, any failure in the Secretary’s duty to assist in that regard also was not prejudicial to the
veteran.
As to the question of the Board’s compliance with the reasons-or-bases requirement of
38 U.S.C. § 7104(d)(1), which subsumes the section 1154(b) adjudication requirement to provide
full reasons for its decision, the Board found that “‘satisfactory’ lay or other evidence of service
incurrence has not been presented” because the other evidence “clearly rebuts” the veteran’s claim
that he sustained a leg wound in service. In finding the veteran’s new evidence not credible, the
Board did not refer specifically, as it should have, to section 1154(b)’s requirement of resolving every
“reasonable doubt” in favor of the veteran when the evidence was in equipoise; however, the
decision did state that the new evidence was “clearly” not credible. The Court holds that such a
statement was the equivalent of the Board’s stating that the preponderance of the evidence was
against the credibility of the lay testimony submitted on behalf of the veteran, and thus satisfied the
requirement to provide an adequate statement of reasons or bases. “Although the BVA decision is
not a model of draftsmanship, we find that it contains a plausible basis for the BVA’s factual.18
determination[s] in this case”. Hillyard v. Derwinski, 1 Vet.App. 349, 352 (1991); see also Smith
(Clifford) v. Brown, 5 Vet.App. 300, 302 (1993); Stegman v. Derwinski, 3 Vet.App. 228, 230 (1992).
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 38 U.S.C. §§ 1154(b), 7252, 5107(a), (b),
5108, 7104(d)(1), 7105(c), and 7261, and the analysis in Gilbert, supra. The Court affirms the
February 25, 1993, BVA decision.
AFFIRMED.