Sunday, October 25, 2009

Duty to Consider ALL Evidence, Pertinent Records

We are using this case to look at the requirement that the VA consider “all” pertinent evidence. The word pertinent, though not described by the FedCir. in this decision, has been addressed by the Veterans Court where it stated:
"Within the non-adversarial process of VA claims adjudication, the word 'pertinent' takes on an even stronger meaning; the Secretary's duty applies to all relevant facts, not just those for or against the claim." Murphy, slip op. at 5 [Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at 5 (Nov. 8, 1990)]
It goes without saying that: “The only way to adjudicate a veteran's claim properly and fairly is to obtain all pertinent records.”

Making sure that the VA obtains all pertinent records is something that you want to check. You also want to make sure that all pertinent records that were before the RO are before the Board, especially given the extent of the recent shredding and removal of records that was identified within the VA, see shredding, amnesty posts.

The FedCir analysis here of the benefit of doubt has some interesting comments which we have highlighted. One of the more interesting is that the benefit of doubt is to be given to each material issue.

Does this mean that each material issue will have its own benefit of doubt adjudication, then they will be lined up for and against the claim as a whole and a final benefit of the doubt adjudication will occur?



Fagan v. Shinseki, No. 2008-7112, DECIDED: July 22, 2009

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In determining whether a veteran has sufficiently supported a claim for benefits, and similarly whether the benefit of the doubt doctrine applies, statutes and regulations require consideration of “the entire evidence of record,” 38 C.F.R. 3.303(a), including “all pertinent medical and lay evidence,” id., and “all procurable and assembled data,” 38 C.F.R. 3.102. See generally 38 U.S.C. § 5107(b). We have repeatedly emphasized that all pertinent evidence must be considered. See, e.g., Hogan, 544 F.3d at 1298 (“A determination regarding service connection requires consideration of ‘all pertinent medical and lay evidence,’ including medical opinions that do not state definitively when a particular disorder or condition began.” (citation omitted)); Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008) (explaining that 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 “explicitly require the consideration of all evidence”); Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008) (determining service connection requires review of the entire evidence of record, including all pertinent medical and lay evidence); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 & n.4 (Fed. Cir. 2007) (ruling that lay evidence, by itself, may be “competent and sufficient” in some circumstances to establish the presence of a condition).
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by statute and regulation, the veteran is given the “benefit of the doubt” “regarding any issue material” to the veteran’s claim “when there is an approximate balance of positive and negative evidence.” 38 U.S.C. § 5107(b).
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The doctrine, however, is not applicable based on “pure speculation or remote possibility” and “is not a means of reconciling actual conflict or a contradiction in the evidence.” 38 C.F.R. § 3.102.2

2 38 C.F.R. § 3.102, the implementing regulation for the “benefit of the doubt” doctrine, provides:
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. 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.


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United States Court of Appeals for the Federal Circuit
2008-7112
TIMOTHY W. FAGAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kathleen A. Daley, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. With her on the brief was J. Michael Jakes.
Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
United States Court of Appeals for the Federal Circuit
2008-7112
TIMOTHY W. FAGAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
No. 06-1327, Judge Mary J. Schoelen.
_________________________
DECIDED: July 22, 2009
_________________________
Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.
SCHALL, Circuit Judge.
Timothy W. Fagan seeks reversal of the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals (“Board’s”) denial of his claim for service connection benefits for bilateral hearing loss. Fagan v. Peake, No. 06-1327, 2008 WL 2130166 (Vet. App. Feb. 29, 2008) (unpublished table decision) (“Veterans Court Decision”). Mr. Fagan argues that the Veterans Court incorrectly interpreted the benefit of the doubt doctrine codified at 38 U.S.C. § 5107(b) and, as a result, improperly failed to consider statements in a medical
examiner’s report as “evidence.” Because the Veterans Court did not misinterpret § 5107(b), we affirm.
BACKGROUND
I.
Mr. Fagan served on active duty in the U.S. Marine Corps from September 1968 to August 1970. Prior to entering service, he was exposed to loud noise from recreational hunting. Upon entering service, Mr. Fagan was given two audiogram tests, both of which revealed that he had “moderately severe” hearing loss in his left ear.1 During his service in Vietnam, Mr. Fagan was further exposed to loud noise, specifically, from explosions, airplanes, helicopters, and wind. There is no evidence, however, that Mr. Fagan complained of hearing problems or requested treatment for hearing loss during service. Upon exiting service, Mr. Fagan was not administered another audiometric hearing test because an audiometer was not available. Rather, he was administered a “whispered voice” test, which indicated that he did not suffer from hearing loss in either ear, even though his pre-service audiogram test indicated preexisting left ear hearing loss.
After discharge in 1970, Mr. Fagan continued to participate in activities involving loud noise, such as hunting, and using weed eaters, leaf blowers, and chainsaws. Although exposed to loud noise during these activities, Mr. Fagan did not wear hearing protection until approximately 2002. Mr. Fagan testified that he failed a hearing test, “in one or both ears,” when he attempted to enter the Connecticut Army National Guard in
1 Because Mr. Fagan’s entrance examination noted hearing loss, it is undisputed that he is not entitled to a presumption of sound condition pursuant to 38 U.S.C. § 1111.
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1971 or 1972. There is no further evidence of this hearing test, however, despite the Veterans’ Administration (“VA”) Regional Office’s (“RO”) attempts to recover the relevant records from the Connecticut Adjutant General’s Office and the National Personnel Records Center. Mr. Fagan further testified that he was tested a second time and was subsequently admitted to the Connecticut Army National Guard. There is no evidence of private treatment records related to Mr. Fagan’s hearing loss. Except for lay statements made in 2004 from friends and relatives about their past recollection of Mr. Fagan’s hearing ability, there is no other evidence related to his hearing loss until 2002, when he underwent a medical examination.
II.
In 2002, Mr. Fagan filed his claim with the RO for service connection relating to bilateral hearing loss. The VA examined Mr. Fagan on October 15, 2003, which confirmed that he has bilateral hearing loss. During Mr. Fagan’s VA medical examination, the medical examiner noted his in-service and post-service noise exposure, as well as testimony from his relatives concerning hearing loss. The examiner also acknowledged that, although Mr. Fagan did not exhibit signs of hearing loss during the “whisper” test at discharge from the military, a “‘whisper’ test does not provide frequency or ear specific information and therefore does not rule out, or confirm, high frequency hearing loss.” The examiner concluded that
[d]ue to the veteran’s history of post-military noise exposure, and without audiometric information obtained at the time of his release from service or shortly thereafter, it is not possible to determine if the further decrease in high frequencies for the left ear and the high frequency hearing loss in the right ear is related to military service.
On December 17, 2003, the VA denied Mr. Fagan’s claim, determining that his further hearing loss was not service connected.
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Mr. Fagan appealed to the Board in February 2004. On January 5, 2006, the Board denied his claim for service connection. Fagan v. Peake, Docket No. 04-34 385 (Bd. Vet. App. Jan. 5, 2006) (“Board Decision”). In its decision, the Board explicitly considered the testimony from Mr. Fagan’s relatives, the occurrences of loud noise exposure during service, and Mr. Fagan’s testimony about failing a Connecticut Army National Guard hearing test shortly after leaving the service. Id., slip op. at 7-8. The Board also took into account, however, (i) that “there is no medical evidence from either his period of service or shortly thereafter showing that [Mr. Fagan] sustained any loss of hearing acuity in service,” (ii) the fact that the earliest post-service record of hearing loss was thirty years after Mr. Fagan’s discharge, and (iii) that Mr. Fagan “had not previously sought treatment for his hearing loss with either the VA or a private medical provider” until 2002. Id. at 8. Ultimately, the Board concluded that, “after considering all the evidence[,] . . . the preponderance of the evidence [was] against [Mr. Fagan’s] claim” and that “the greater weight of the evidence [was] against the conclusion that the criteria to establish service connection [were] met.” Id. at 9.
Mr. Fagan appealed to the Veterans Court, arguing that the positive and negative evidence pertaining to a nexus between his further hearing loss and service was in equipoise and, therefore, the “Board was required to grant Mr. Fagan the benefit of the doubt” pursuant to § 5107(b). See Veterans Court Decision, 2008 WL 2130166, at *2. On February 29, 2008, the Veterans Court rejected Mr. Fagan’s argument and affirmed the decision of the Board. Id. at *1. In doing so, the court first pointed out that, because the Board correctly found that Mr. Fagan’s hearing loss constituted a current compensable disability, the sole issue was whether there was sufficient evidence
2008-7112 4
establishing “a nexus between his current hearing disability and an injury, event, or disease in service.” Id. at *2. In that regard, the court stated that “[t]his appeal presents a single question-the interpretation and application of the benefit of the doubt doctrine codified at 38 U.S.C. § 5107(b).” Id. at *1. The court then enumerated the pertinent evidence, such as Mr. Fagan’s pre- and post-service hearing tests, his pre- and post-service exposure to noise, and the VA medical examiner’s report. Id. at *1-2. Regarding the VA medical examiner’s statements about being unable to determine whether Mr. Fagan’s further hearing loss was related to military service, the court stated that “the examiner did not render an opinion and her remarks constitute what may be characterized as ‘non-evidence.’” Id. at *3 (internal quotations marks omitted) (quoting Perman v. Brown, 5 Vet. App. 237, 241 (1993)). Thus, the Veterans Court did not find sufficient evidence linking Mr. Fagan’s further bilateral hearing loss to service and, consequently, ruled that the evidence regarding a nexus was not in equipoise. Veterans Court Decision, 2008 WL 2130166, at *3. Accordingly, the court held that the benefit-of-the-doubt doctrine was inapplicable. Id.
DISCUSSION
I.
On appeal, Mr. Fagan argues that the Veterans Court “erred as a matter of law in interpreting ‘evidence’ in § 5107(b) too narrowly” and, as a result, improperly excluded the evidence in the VA medical examiner’s report. See Appellant’s Br. 13. Responding, the government contends that the Veterans Court did not interpret § 5107(b) to bar relevant evidence. Rather, it merely found, after considering all pertinent evidence, that
2008-7112 5
the benefit-of-the-doubt doctrine was not applicable because the evidence for and against Mr. Fagan was not in equipoise.
Pursuant to 38 U.S.C. § 7292(c), we have limited jurisdiction to review decisions of the Veterans Court. Boggs v. Peake, 520 F.3d 1330, 1333 (Fed. Cir. 2008). Specifically, we possess “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We also have jurisdiction to review decisions of the Veterans Court on issues of law. Jordan v. Nicholson, 401 F.3d 1296, 1297 (Fed. Cir. 2005). However, “[e]xcept to the extent that an appeal . . . presents a constitutional issue, [we] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). Thus, we only have jurisdiction over Mr. Fagan’s appeal to the extent that it raises issues of law. To the extent that his appeal raises issues of fact or issues of law applied to fact, we do not have jurisdiction to consider his claims.
In considering any issues of law properly raised on appeal, we review de novo the decision of the Veterans Court. See Boggs, 520 F.3d at 1334; Summers v. Gober, 225 F.3d 1293, 1295 (Fed. Cir. 2000). We set aside the Veterans Court’s interpretations of a regulation if they are found to be “(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege, or immunity; (c) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (d) without observance of procedure required by law.” 38 U.S.C. § 7292(d)(1).
2008-7112 6
This appeal does not simply present a challenge to factual findings or to the law as applied to the facts. Rather, at least in part, it challenges the Veterans Court’s interpretation of a statutory provision, 38 U.S.C. § 5107(b). Indeed, the Veterans Court itself acknowledged that “[t]his appeal presents a single question-the interpretation and application of the benefit of the doubt doctrine codified at 38 U.S.C. § 5107(b).” Veterans Court Decision, 2008 WL 2130166, at *1 (emphasis added). Thus, we have jurisdiction to hear Mr. Fagan’s appeal.
II.
We now turn to the merits of Mr. Fagan’s appeal. “[A] claimant has the responsibility to present and support a claim for [VA] benefits . . . .” 38 U.S.C. § 5107(a); see Cromer v. Nicholson, 455 F.3d 1346, 1350 (Fed. Cir. 2006) (“[T]he general evidentiary burden in veterans’ benefit cases . . . requires that ‘a claimant has the responsibility to present and support a claim for [VA] benefits.’” (alteration in original) (quoting 38 U.S.C. § 5107(a))). Generally, “[t]o establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); see, e.g., Hogan v. Peake, 544 F.3d 1295, 1297 (Fed. Cir. 2008) (“[A] veteran must show that the current disability is ‘service connected,’ i.e., that there is a medical nexus between the disability and an ‘in-service precipitating disease, injury or event.’” (quoting Disabled Am. Veterans v. Sec’y of Veterans Affairs, 419 F.3d 1317,
2008-7112 7
1318 (Fed. Cir. 2005)). In this case, the only requisite element for service connection which is disputed is the “so-called nexus requirement.”
It is the veteran’s “general evidentiary burden” to establish all elements of his claim, including the nexus requirement. See, e.g., Holton, 557 F.3d at 1368; Hogan, 544 F.3d at 1297; Cromer, 455 F.3d at 1350. However, by statute and regulation, the veteran is given the “benefit of the doubt” “regarding any issue material” to the veteran’s claim “when there is an approximate balance of positive and negative evidence.” 38 U.S.C. § 5107(b). The “benefit of the doubt” doctrine is codified at 38 U.S.C. § 5107(b), which provides as follows:
The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.
The doctrine, however, is not applicable based on “pure speculation or remote possibility” and “is not a means of reconciling actual conflict or a contradiction in the
2008-7112 8
2 38 C.F.R. § 3.102, the implementing regulation for the “benefit of the doubt” doctrine, provides:
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. 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.
evidence.” 38 C.F.R. § 3.102.2 In addition, the “benefit of the doubt” doctrine has “no application where the Board determines that the preponderance of the evidence weighs against the veteran’s claim” or when the evidence is not in “equipoise.” Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001); see, e.g., Ferguson v. Principi, 273 F.3d 1072, 1075 (Fed. Cir. 2001) (“Thus the evidence was not in equipoise but rather preponderated against [the veteran’s] claim. Therefore, the benefit-of-the-doubt doctrine was not applicable.”). Rather, it applies when the evidence is in “approximate balance” or “almost exactly equal.” Ortiz, 274 F.3d at 1364 (“[E]vidence is in ‘approximate balance’ when the evidence in favor of and opposing the veteran’s claim is found to be ‘almost exact[ly or] nearly’ equal.” (alteration in original)).
In determining whether a veteran has sufficiently supported a claim for benefits, and similarly whether the benefit of the doubt doctrine applies, statutes and regulations
2008-7112 9
require consideration of “the entire evidence of record,” 38 C.F.R. 3.303(a), including “all pertinent medical and lay evidence,” id., and “all procurable and assembled data,” 38 C.F.R. 3.102. See generally 38 U.S.C. § 5107(b). We have repeatedly emphasized that all pertinent evidence must be considered. See, e.g., Hogan, 544 F.3d at 1298 (“A determination regarding service connection requires consideration of ‘all pertinent medical and lay evidence,’ including medical opinions that do not state definitively when a particular disorder or condition began.” (citation omitted)); Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008) (explaining that 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 “explicitly require the consideration of all evidence”); Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008) (determining service connection requires review of the entire evidence of record, including all pertinent medical and lay evidence); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 & n.4 (Fed. Cir. 2007) (ruling that lay evidence, by itself, may be “competent and sufficient” in some circumstances to establish the presence of a condition).
III.
It is in regard to the evidence that was considered in determining whether § 5107(b) should have been applied to the nexus requirement that Mr. Fagan argues the Veterans Court erred. Mr. Fagan contends that the Veterans Court erroneously interpreted “evidence” in § 5107(b) to only include definitive medical opinions and, thus, dismissed the VA medical examiner’s report from relevant evidence because the examiner was unable to come to a definitive medical opinion. As noted, the examiner stated: “[I]t is not possible to determine if” Mr. Fagan’s further hearing loss “is related to military service.” Mr. Fagan also contends that the Veterans Court erred in its
2008-7112 10
interpretation of § 5107(b) by failing to consider any of the evidence he submitted that was discussed in the medical examiner’s report, such as occurrences of in-service noise exposure. Mr. Fagan suggests that, if the Veterans Court had considered the remarks and evidence noted in the examiner’s report, the evidence would have been in “equipoise” and he would have been entitled to veteran’s benefits because § 5107(b) would have applied.
We are unable to agree with Mr. Fagan that the Veterans Court misinterpreted the benefit of the doubt rule of § 5107(b). First, we do not think that the court adopted a rule-either explicitly or implicitly-permitting the exclusion of all submitted evidence that is discussed in a medical examiner’s report, unless that report provides a definitive, conclusive opinion. Significantly, when the Veterans Court referred to the examiner’s “remarks” as “non-evidence,” it merely was referring to the examiner’s statement that
2008-7112 11
3 As seen, in referring to the VA medical examiner’s “remarks” as “non-evidence,” the Veterans Court cited to its decision in Perman. In Perman, the veteran submitted evidence and, thereafter, three medical examiners offered opinions about service connection based upon the evidence. 5 Vet. App. at 239-41. Two of the examiners opined that the evidence supported service connection, but the third examiner could not come to an “absolute opinion.” Id. at 240-41. The Board denied the veteran’s claim, after determining that the only evidence that could possibly be considered “negative”-i.e., the statement by the third examiner that he was incapable of providing an “absolute opinion”-“caused the balance of negative and positive evidence to weigh more heavily against” service connection. Id. at 241. The Veterans Court vacated the Board’s decision. Significantly, it ruled that, in light of the positive evidence submitted by the veteran and the two medical opinions supporting service connection, it was unexplainable how one medical examiner’s inconclusive statement in isolation-a remark that was essentially “non-evidence”-could weigh heavily enough to deny service connection. Id. Thus, because the Veterans Court in Perman considered the entire record evidence, including the material submitted by the veteran, it is clear that the Veterans Court in Perman simply referred to the examiner’s inconclusive statement alone as “non-evidence.”
she was unable to render an opinion. The court was not referring to all of the evidence and “remarks” contained in the report and the record as “non-evidence.”3
The Board assessed the VA medical examiner’s report, as well as the evidence contained therein, but determined that the preponderance of evidence weighed against service connection. This determination took into account that the examiner did not state that Mr. Fagan’s hearing loss likely resulted from service, as well as the extensive evidence that his further hearing loss was not a result of service. Such evidence included his extensive post-service noise exposure without hearing protection and the lack of treatment for hearing loss or complaints of hearing loss until thirty years after service. See, e.g., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (permitting consideration of the “the lengthy period of absence of complaint directed to the condition [the veteran] now raises”). Under these circumstances, the Board found the “benefit of the doubt” doctrine was inapplicable. See, e.g., Ortiz, 274 F.3d at 1365 (“A
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finding that a ‘preponderance of the evidence’ leads to a determination . . . is quite different from the situation in which the contrary evidence is ‘nearly equal’ or ‘too close to call.’”).
Subsequently, in affirming the Board’s decision declining to apply § 5107(b), the Veterans Court took into account the entirety of the evidence submitted by Mr. Fagan. Doing so, it properly decided that Mr. Fagan could not benefit from § 5107(b) because the preponderance of evidence weighed against a nexus. See, e.g., Ferguson, 273 F.3d at 1076 (finding no erroneous interpretation of § 5107(b) where the Veterans Court affirmed the Board, which “considered all the evidence, then determined that the requirement that there be ‘an approximate balance of positive and negative evidence’ was not met”). Tellingly, in its opinion the Veterans Court cited the same evidence upon which the Board relied. That evidence included Mr. Fagan’s hearing tests, his pre- and post-service exposure to noise, and the examiner’s inability to render a decision regarding service connection. See Veterans Court Decision, 2008 WL 2130166, at *1-2. In fact, the court recited all of this evidence despite the fact that it explicitly explained that “the facts [were] undisputed and need only be summarized briefly.” Id. at *1. Thus, although the Veterans Court characterized the VA medical examiner’s remarks as “non-evidence,” it did not fail to consider any relevant evidence on the question of nexus.
Neither do we think that the Veterans Court erred as a matter of law when it treated as “non-evidence” or not pertinent the VA medical examiner’s statement that it was “not possible to determine if the further decrease in high frequencies for the left ear and the high frequency hearing loss in the right ear is related to military service.” The examiner’s statement, which recites the inability to come to an opinion, provides neither
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4 However, we note-as we did in Hogan-that it is “troubling” to refer to statements as “non-evidence.” Hogan, 544 F.3d at 1297 (“the opinion of the Veterans Court contains some troubling language”). Reiterating what we said in Hogan, “[a] determination regarding service connection requires consideration of ‘all pertinent medical and lay evidence.’” Id. at 1298 (quoting 38 C.F.R. § 3.303(a)). Regardless of whether an ultimate opinion is offered in a medical examiner’s report, that report, as well as the facts discussed therein, “regarding the etiology of a claimant’s [disability] must be considered as ‘evidence’ of whether the [disability] was incurred in service.” Id. As explained above, in this case, the Veterans Court neither adopted a restricted view of “evidence” in § 5107(b) nor failed to consider any pertinent evidence.
positive nor negative support for service connection. See 38 U.S.C. § 5107(b) (balancing “positive and negative evidence”). Therefore, it is not pertinent evidence, one way or the other, regarding service connection. Indeed, we considered, and rejected, a similar contention in Hogan. There, the veteran argued that it was error to refer to a medical examiner’s report, which was unable to conclusively provide a medical opinion regarding service connection, as “non-evidence.” 544 F.3d at 1297. We concluded, however, that the Veterans Court did not disregard any pertinent evidence of record when it referred to the medical examiner’s report as “non-evidence.” Id. at 1297-98. Instead, because the report did not state that the veteran’s disability was likely service connected, and because “there was substantial evidence showing that [the veteran’s disability] did not begin until after he left military service,” we stated that the report was “insufficient to establish service connection.”4 Id. at 1298.
CONCLUSION
For the foregoing reasons, we find no error in the Veterans Court’s interpretation of 38 U.S.C. § 5107(b). To the extent Mr. Fagan argues that there is insufficient evidence supporting the denial of his claim, he presents an issue beyond our jurisdiction. See, e.g., Maxson, 230 F.3d at 1333 (“The weighing of this evidence is not within our appellate jurisdiction.”). The decision of the Veterans Court is affirmed.
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COSTS
Each party shall bear its own costs.
AFFIRMED

Lay Evidence, 38 CFR 3.303, RO Denies Existance of Lay Evidence

When some one declare that there is "no" evidence, "no" basis or "no" whatever, your shields should go up because more often than not there will evidence of some sort to counter that "no".
This is of particular importance to VA decision issued before VBA 1989.

We find this decision of interest, in part, because it is a CUE claim.

=======================================================
the appellant challenges the Board finding that the RO in 1969 correctly applied 38 C.F.R. § 3.303(a) and (b).
In the context of this CUE claim, the question is whether the 1969 RO
decision properly applied the applicable regulation, 38 C.F.R. § 3.303, to the lay evidence.
The decision noted some of the lay evidence and mentioned the VA examination, it is therefore clear that the lay evidence was
before the RO, despite the RO's failure to discuss all of it explicitly.
See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (noting that, prior to enactment of Veterans' Benefits Amendments of 1989, Pub. L. No. 101-237, 103 Stat. 2062 (1989), ROs were not required to set forth in detail the factual bases for their decisions); Gonzales v. West, 218 F.3d 1378, 1381 ( Fed. Cir. 2000) ("[A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination of the [sic] service connection must be presumed to have been reviewed . . . and no further proof of such review is needed."). Had the RO not further characterized the state of the evidence, the central issue of this appeal would have been quite different. In this case, however, the appellant has demonstrated that the RO did not correctly apply the law to the evidence. Although the RO in 1969 had the lay evidence before it, it declared that "[t]he veteran has furnished no evidence concerning service incurrence, chronicity and continuity." R. at 137. From the RO's explicit statement, it is clear that the RO gave no weight to the lay evidence. The RO did not say or indicate that the evidence was insufficient to find service incurrence or continuity of symptomatology. Its declaration that there was "no evidence" leaves no doubt that it incorrectly applied § 3.303, giving the lay evidence no consideration at all.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1454
JACK D. SNYDERNext Hit, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, veteran Jack D. Previous HitSnyderNext Hit, through counsel,
appeals a
February 9, 2007, decision of the Board of Veterans' Appeals (Board)
determining that a July 1969
decision of the VA regional office (RO) was not predicated on clear and
unmistakable error (CUE)
and that Mr. Previous HitSnyderNext Hit was, therefore, not entitled to an effective date
earlier than November 20, 1997,
for service connection for solar urticaria. Both parties filed briefs, and
the appellant filed a reply
brief. On appeal, the appellant argues that the Board should have found
CUE in the 1969 RO
decision because the RO failed to properly apply VA regulations,
specifically, 38 C.F.R. § 3.303(b)
and VA Regulation (VAR) 1380, in connection with its consideration of lay
evidence. This appeal
is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(
a) and 7266(a). A single
judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-
26 (1990). For the
reasons set forth below, the Court will reverse the Board's determination
that the 1969 RO did not
commit error in its application of § 3.303 and will remand the matter for
the Board to determine
whether, on the record before the RO in 1969, the evidence established
manifestly that correction
of the error would have changed the outcome–i.e., that an award of
service connection would have
resulted had the RO given weight to the lay evidence of record. Because
the Board failed to discuss
the contention that the RO erred in its application of VAR 1380, the Court
will remand for the


Board's consideration of that matter in the first instance.
I. FACTS
Mr. Previous HitSnyderNext Hit had active duty service from January 1942 to December 1945,
from February
1947 to February 1949, and from May 1949 to November 1952. Record (R.) at
2, 12-14, 83-89. His
May 1949 entrance examination for the U.S. Air Force did not indicate that
he had any abnormality
of the skin or sensitivity to sunlight. R. at 23. During his last period
of service, he had been
assigned duties in Fairbanks, Alaska, and thereafter reported to Hamilton
Air Force Base in
California. R. at 130. His service medical records (SMRs) for his last
period of service in California
included an entry on May 12, 1952, that noted: "Hives when he sits out in
the sun. No hives seen
at present. Rx [illegible]." R. at 76. On Mr. Snyder's November 1952
separation examination
report, the examiner noted that Mr. Previous HitSnyderNext Hit "[h]as occasional mild episodes
of dizziness attributed
to sensitivity to sunlight; no difficulty of this sort until arrival in
California. These episodes are
associated with palpitation, slight nervousness, and slight nausea. Has
been unable to find
satisfactory relief through medical channels." R. at 60, 62.
In January 1969, Mr. Previous HitSnyderNext Hit applied for VA disability compensation for
chronic solar
urticaria. R. at 78-81. Shortly thereafter, he submitted private medical
reports from 1968 from two
physicians who diagnosed chronic solar urticaria and an allergy to
sunlight. R. at 99, 106, 114.
Those reports recorded Mr. Previous HitSnyderNext Hit as noting that the problemdeveloped in
1952 and that, since that
time, he has been very sensitive to sun, reporting that "any exposed area
becomes quite
erythematous." R. at 99, 114. In addition, one of the reports noted that "
he may become quite
nauseated and as understood, on occasion, he vomits." R. at 114.
In April 1969, VA provided Mr. Previous HitSnyderNext Hit with a VA medical examination. R. at
121-25.
Mr. Previous HitSnyderNext Hit informed the examiner that he was "bothered all the time to
some degree with the skin
condition," reporting that the sun "bothers him very badly, it itches
terribly" and that it "[b]egan
around 1950's." R. at 121. The medical report noted that Mr. Previous HitSnyderNext Hit
reported that whenever he is
out in the sun or in very warm weather, he develops hives and that he "
dates the onset of urticaria
to 1952." R. at 124. The report also noted that Mr. Previous HitSnyderNext Hit first received
medical treatment for this
condition in 1968. Id. The examiner noted the presence of urticarial
plaques on both arms and
thickening of the skin of the face and diagnosed Mr. Previous HitSnyderNext Hit as having
solar urticaria. Id. The
2


examiner alsocommentedthat "[t]hedurationoftheconditioncannot beestimated
fromthephysical
examination alone." R. at 125. He did not provide any opinion as to the
duration of Mr. Snyder's
condition. Id.
In a May 1969 statement, Mr. Previous HitSnyderNext Hit stated that his sun allergy occurred
during his time in
service and has continuously grown worse. R. at 130. He noted that he did
not have the allergy to
the sun during his time in the U.S. Air Force prior to the time spent in
Alaska, but did have the
allergy after reporting to Hamilton Air Force Base in California from
Alaska. Id. He stated that the
doctors at Hamilton Air Force Base suggested that he stay out of the sun.
He further stated that this
was impossible to do during his enlistment because he was a crew chief on
an airplane. He received
the impression from the doctors that he had a "gold brick" type of
complaint. He noted that he has
been gradually getting worse, to the point where he must wear a sun screen
make up cream, dark
glasses, hat, and long sleeved clothing when outside during daylight hours.
In July 1969, the RO denied Mr. Snyder's claim. R. at 137. The RO
concluded that
(1)Mr.Previous HitSnyderNext Hit furnished"noevidenceconcerningservice incurrence,
chronicityand continuity"and
(2) the "single isolated entry of 5-12-52 must be considered as acute
manifestation under VAR
1380." R. at 137. The RO decision became final. Thereafter, Mr. Previous HitSnyderNext Hit
attempted to reopen his
claim, which was denied in a final October 1989 Board decision. R. at 253-
63.
In November 1997, Mr. Previous HitSnyderNext Hit filed a claim to reopen the prior
disallowance of his claim.
R. at 267. Following the submission of further evidence, including a July
2001 report from a private
dermatologist who opined that Mr. Snyder's solar urticaria was "[c]learly
and unquestionably
documented dating from 1952 while in military service" (R. at 573-74), the
RO granted service
connection for solar urticaria, assigned a 10% disability rating,
effective from November 20, 1997.
R. at 629 (November 2001 RO decision); see Supplemental (Suppl.) R. at 11-
12 (November 2001
Suppl. Statement of the Case). Thereafter, in a July 2003 RO decision, Mr.
Snyder's initial rating
was increased to 60%, effective from November 1997. R. at 698-702.
In March 2005, Mr. Previous HitSnyderNext Hit filed a claim alleging CUE in the 1969 RO
decision. R. at 704-
08. He argued that the 1969 RO erred in relying on a single episode of
solar urticaria in service and
in concluding that the May 1952 entry in his SMRs demonstrated an acute
manifestation under VAR
1380. R. at 705-08. He also noted that the April 1969 medical examination
diagnosed him with
solar urticaria. R. at 707. He argued that the evidence demonstrated he
had "a chronic, rather than
3


an acute, condition" and that service connection should have been granted.
R. at 707-08. A June
2005 RO denied his CUE claim. R. at 718-22. Later that year, Mr. Previous HitSnyderNext Hit
filed a Notice of
Disagreement in which he argued that, in its 1969 decision, the RO failed
to apply the proper criteria
in denying his claim. R. at 731. In his Substantive Appeal to the Board,
he repeated the arguments
previously made and also stated that the RO failed to consider all the
evidence of record, that the
evidence substantiated that his condition was incurred in service, and
that his disability has been
continuous from 1952 to the present. R. at 726.
In the February 2007 decision here on appeal, the Board determined that
the 1969 RO
decision did not contain CUE and that Mr. Previous HitSnyderNext Document was not entitled to an
earlier effective date for
the award of service connection for his condition. R. at 3. The Board
noted that the RO had applied
the applicable regulation, 38 C.F.R. § 3.303, and interpreted the facts
as not showing solar urticaria
as a chronic disease in service, or continuous from service, or incurred
in service. R. at 7. The
Board then determined that the RO's interpretation "was not unreasonable"
and that the appellant's
CUE claim was ultimately based only upon "a disagreement as to the
interpretation of the facts."
Id.
II. ANALYSIS
A. Parties' Contentions
On appeal, the appellant argues that the 1969 RO decision misapplied 38 C.
F.R. § 3.303,
whichprovides that serviceconnectionmaybeestablished by all pertinent
medical and lay evidence,
when the RO determined that he had "furnished no evidence concerning
service incurrence,
chronicity and continuity" of his claimed solar urticaria. Appellant's
Brief (App. Br.) at 8 (quoting
1969 RO decision, R. at 137), 12-13 (emphasis added). He contends that at
the time of the 1969 RO
decision,thereweremultipleitemsofevidenceconcerningtheserviceincurrence,
symptomatology,
chronicity and continuity of his solar urticaria. Id. at 9, 12. He points
out that at the time of the
1969 decision, there was no evidence of record that contradicted the
evidence that was favorable to
his claim. He argues that the RO erroneously concluded that his lay
statements were not evidence
at all and disregarded his evidence altogether. He further argues that his
allergy to the sun, which
resulted in skin eruptions, was a fact capable of lay observation, was
repeated to a doctor, and his
statements as to his symptoms formed the bases for the diagnosis of
chronic solar urticaria. Id. at
4


9 (citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), and
Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007)).
The second error alleged by the appellant is that the 1969 RO incorrectly
interpreted VAR
1380 (38 C.F.R. § 3.380) as requiring that the "single isolated" SMR
entry on May 12, 1952,
regarding his condition be considered an "acute manifestation under VAR
1380." App. Br. at 13
(quoting 1969 RO decision, R. at 137). He argues that VAR 1380 did not so
require and that the
regulation actually required that, for conditions such as urticaria, a
determination as to service
incurrence or aggravation be made on the "whole evidentiary record." Id. (
quoting VAR 1380).
The appellant maintains that had the alleged legal errors noted above not
been made, the
outcome would have been manifestly changed, and the only permissible view
of the evidence is that
the 1969 RO decision would have granted his claim. App. Br. at 15-16. He
contends that, at the
time of the 1969 RO decision, there was evidence of a continuing condition
in service, evidence of
a continuity of symptoms since service, and a medical opinion that
etiologically linked the
symptoms observed in service with the condition diagnosed in 1969. Id. at
15.
The Secretary's position is that the Board decision should be affirmed
because the RO in
1969 correctly applied § 3.303 and the evidence of record supports the
RO's application of VAR
1380. Secretary's Br. at 8. The Secretary maintains that the appellant's
argument regarding
misapplication of regulations is a mere disagreement with the weighing of
the evidence and does not
rise to the level of CUE. Id. at 10. The Secretary contends that the Board
correctly noted that the
1969 RO considered the lay evidence of record. Id. at 10-11. The Secretary
further argues that
Buchanan and Jandreau are inapplicable because those decisions did not
exist at the time of the
1969 RO decision. Id. at 12.
B. Application of Law
Establishing service connection generally requires (1) medical evidence of
a current
disability; (2) medical or, in certain circumstances, lay evidence of in-
service incurrence or
aggravation of a disease or injury; and (3) medical evidence of a nexus
between the claimed
in-service disease or injury and the present disability. See Hickson v.
West, 12 Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995); 38 C.F.R. §
3.303 (2008). Section
3.303(a) provides that each disabling condition for which a veteran seeks
service connection "must
5


be considered on the basis of . . . all pertinent medical and lay
evidence." 38 C.F.R. § 3.303(a)
(1969 & 2008); see Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008) (
discussing § 3.303 in
connection with a CUE challenge to a March 1982 RO decision that denied
service connection for
paranoidschizophrenia). Under§3.303(b),titled"Chronicityandcontinuity,"
analternativemethod
of establishing the second or third element of service connection is
through a demonstration of
continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495-97 (
1997); see also
Clyburn v. West, 12 Vet.App. 296, 302 (1999). Specifically, § 3.303
provides, in relevant part:
Continuity of symptomatology is required only where the condition noted
during
service (or in the presumptive period) is not, in fact, shown to be
chronic or where
the diagnosis of chronicity may be legitimately questioned. When the fact
of
chronicity in service is not adequately supported, then a showing of
continuity after
discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1969 & 2008); App. Br., Appendix 1 (1969 version of
regulation).1
Continuity of symptomatology may be established if a claimant can
demonstrate (1) that a condition
was "noted" during service; (2) evidence ofpostservice continuity of the
same symptomatology; and
(3) medical or, in certain circumstances, lay evidence of a nexus between
the present disability and
the postservice symptomatology. Savage, 10 Vet.App. at 495-96; see Hickson,
12 Vet.App. at 253
(lay evidence of in-service incurrence sufficient in some circumstances
for purposes of establishing
service connection); 38 C.F.R. § 3.303(b).
An RO decision that has become final may not be reversed or revised in the
absence of CUE.
See 38 U.S.C. § 5109A; Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-
98 (Fed. Cir. 2000)
5111(a). CUE is "a very specific and rare kind of error . . . that when
called to the attention of later
reviewers compels the conclusion, to which reasonable minds could not
differ, that the result would
have been manifestly different but for the error." 38 C.F.R. § 20.1403 (
2006). CUE is established
when the following conditions have been met: First, either (1) the correct
facts contained in, or
constructively contained in, the record were not before the adjudicator,
or (2) the statutory or
regulatory provisions extant at the time were incorrectly applied. See
Damrel v. Brown, 6 Vet.App.
242, 245 (1995). Second, the alleged error must be "undebatable," not
merely a "disagreement as
To support his service-connection claim in 1969, the appellant does not
argue that "chronicity in service" was
adequately supported, 38 C.F.R. § 3.303(b), but rather, relies on
evidence of continuity after discharge and the chronic
nature of his condition shown after discharge. See Reply at 2.
1
6


to how the facts were weighed or evaluated." See Russell v. Principi, 3
Vet.App. 310, 313-14 (1992)
(en banc). Finally, the error must have "manifestly changed the outcome"
of the prior decision.
Russell, 3 Vet.App. at 313-14; see Bustos v. West, 179 F.3d 1378, 1380-81 (
Fed. Cir. 1999)
(expressly adopting the manifestly changed outcome language in Russell,
supra). Errors that cannot
constitute CUE, pursuant to 38 C.F.R. § 20.1403(d) (2007), include (1) a
changed diagnosis, where
"a new medical diagnosis 'corrects' an earlier diagnosis considered in a
Board decision"; (2) VA's
failure to comply with the duty to assist; (3) a disagreement as to how
the facts were weighed; and
(4) a subsequent change in interpretation of the statute or regulation
that was applied in the Board
decision. See Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005);
Damrel, 6 Vet.App.
at 246.
There are two questions, relating to an allegation of CUE, where the Court
applies a de novo
standard of review: (1) Whether the appellant has presented a valid CUE
allegation; and (2) whether
an applicable law or regulation was not applied, or was not applied
correctly. See Andrews v.
Principi, 18 Vet.App. 177, 182 (2004), aff'd sub nom. Andrews v. Nicholson,
421 F.3d 1278 (Fed.
Cir. 2005). The Court's review of a Board decision regarding an allegation
of CUE in a prior
decision is otherwise limited to whether the Board's decision was "
arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law," and whether the
decision is supported by
an adequate statement ofreasons or bases. 38U.S.C.§§7261(a)(3)(A), 7104(
d)(1); see also Livesay
v. Principi, 15 Vet.App. 165, 174 (2001) (en banc). "'The scope of review
under the 'arbitrary and
capricious' standard is narrow and a court is not to substitute its
judgment for that of the [Board].'"
Elkins v. West, 12 Vet.App. 209, 216 (1999) (en banc) (quoting Motor
Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983)). A Board decision is
"arbitrary and capricious if the [Board] has relied on factors which
Congress has not
intended it to consider, entirely failed to consider an important aspect
of the problem,
offered an explanation for its decision that runs counter to the evidence
before the
agency, or is so implausible that it could not be ascribed to a difference
in view or
the product of [the Board's] expertise."
Id. at 217.
The 1969 RO decision denied service connection for solar urticaria. R. at
137. The RO
stated the following:
At VA examination veteran stated that he had onset of solar urticaria in
1952.
7


Service records show "hives when he sits out in the sun" on 5-12-52. The
veteran
has furnished no evidence concerning service incurrence, chronicity and
continuity.
Single isolated entry of 5-12-52 must be considered as acute manifestation
under
VAR 1380.
R. at 137. In the decision on appeal, the Board found that the RO's
interpretation of the facts – that
there was no evidence of a chronic disease, no evidence that his condition
was incurred in service,
and no evidence of continuity – was not unreasonable and that the
appellant's disagreement with the
interpretation of the facts does not constitute CUE. R. at 7. As noted
above, the appellant challenges the Board finding that the RO in 1969 correctly applied 38 C.F.R. § 3.303(a) and (b).
In the context of this CUE claim, the question is whether the 1969 RO
decision properly applied the applicable regulation, 38 C.F.R. § 3.303, to the lay evidence.
The decision noted some of the lay evidence and mentioned the VA examination, it is therefore clear that the lay evidence was
before the RO, despite the RO's failure to discuss all of it explicitly.
See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (noting that, prior to enactment of Veterans' Benefits Amendments of
1989, Pub. L. No. 101-237, 103 Stat. 2062 (1989), ROs were not required to set forth in detail the factual bases for their decisions); Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000) ("[A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination of the [sic] service connection must be presumed to have been reviewed . . . and no further proof of such review is needed."). Had the RO not further characterized the state of the evidence, the central issue of this appeal would have been quite different.
In this case, however, the appellant has demonstrated that the RO did not correctly apply the law to the evidence. Although the RO in 1969 had the lay evidence before it, it declared that "[t]he veteran has furnished no evidence concerning service incurrence, chronicity and continuity." R. at 137. From the RO's explicit statement, it is clear that the RO gave no weight to the lay evidence. The RO did not say or indicate that the evidence was insufficient to find service incurrence or continuity of
symptomatology. Its declaration that there was "no evidence" leaves no
doubt that it incorrectly applied § 3.303, giving the lay evidence no consideration at all.
The Federal Circuit held that § 3.303(a), in addition to other statutory
and regulatory provisions, "make[s] clear" that "lay evidence is one type of evidence that must be considered, if
8


submitted, when a veteran's claim seeks disability benefits." Buchanan,
451 F.3d at 1335. The 1969 RO decision reveals that the RO improperly determined that the lay evidence was not entitled to
consideration when it stated that there was "no evidence" that the
appellant had the onset of urticaria in service and that there was no evidence of continuity of symptomatology.

The Board found that the RO "interpreted the facts as not showing solar urticaria as a chronic disease in service, or continuous from service, or incurred in service." R. at 7. This statement reflects the Board's view
that in 1969 the RO weighed the lay evidence and determined that such
evidence did not show service incurrence or continuity of symptomatology. However, that view is not consistent with the
express language used by the 1969 RO in its statement that there was "no evidence" of service incurrence or continuity. The Board's view of the matter, therefore, reflects a legally untenable interpretation of the RO's consideration of the evidence before it. From the RO's explicit statement, the only interpretation is that the lay evidence did not (could not) constitute evidence. The RO's interpretation of the law as shown by its statement is inconsistent with § 3.303(a), which expressly allows the establishing of service connection based on lay evidence.
Contrary to the Secretary's position, the Federal Circuit's discussion of § 3.303 in Buchanan, explaining that competent lay evidence can be sufficient to establish entitlement to disability benefits, did not announce a new interpretation of the regulation or represent a liberalizing change in VA law. Rather, the Federal Circuit's discussion of the regulation as requiring VA to consider and weigh lay evidence was based on the "clear" language of the provisions in the regulation. Under the
regulation, an RO is required
to consider lay evidence as to both service incurrence and continuity of
symptomatology after discharge from service. 38 C.F.R. § 3.303(a), (b). The appellant's challenge to the validity of the 1969 RO decision is thus far more than a "disagreement as to how the facts were weighed or evaluated," which cannot support an assertion of CUE. Russell, 3 Vet.App. at 313-14. It is a challenge to the RO's failure to consider lay evidence at all. The Court therefore holds that the Board's decision finding no error in the 1969 decision did not comply with the law and was arbitrary and capricious.
The Court will remand to the Board the question whether the error was a "clear and unmistakable error" – i.e., whether, on the full record before the RO in 1969, the evidence establishes manifestly that the correction of the error would have changed the outcome and service
connection would have resulted. Other than the in-service May 1952 SMR entry noting that the
9


appellant gets hives when he sits out in the sun, the evidence before the
RO was (1) the November
1952 separation examination report noting the appellant's sensitivity to
sunlight; (2) the appellant's
May 1969 lay statements; and (3) the appellant's statements to his doctors
and the VA examiner
regarding symptoms and onset. R. at 60, 76, 99, 105, 112-14, 121-25, 130.
The Board must make
this determination in the first instance because it does involve assigning
a weight to the evidence
of record, which includes consideration of the lack of evidence of
treatment for approximately 16
years following service (i.e., 1952 discharge to treatment in 1968) on the
credibility of the evidence
of continuity. See Savage, 10 Vet.App. at 496 (noting that "the lack of
evidence of treatment may
bear on the credibility of the evidence of continuity"). Accordingly, the
Court will remand for the
Board to determine whether the error made by the RO in 1969 was CUE, which
requires revision
of the 1969 RO denial of service connection. See Russell, 3 Vet.App. at
320 (remanding for Board
to determine whether error was CUE that required revision of an earlier RO
decision that denied
service connection).
On remand, the Board must also discuss the appellant's second challenge to
the 1969 RO
decision–whether the RO in 1969 correctly applied VAR 1380, which
requires that the
determination "as to service incurrence or aggravation must be on the
whole evidentiary showing."
The 1969 RO relied on the "single isolated entry" of May 12, 1952, in its
determination that VAR
1380 required the finding that there was an "acute manifestation" of the
condition in service. This
argument was raised to the Board and should be considered by the Board in
the first instance. See
Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000).
With respect to the remanded matters, the appellant is free to submit
additional evidence and
argument, which the Board must consider when readjudicating his claim. See
Kay v. Principi,
16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-
73 (1999) (per curiam
order). These matters are to be provided expeditious treatment on remand.
See 38 U.S.C. § 7112.
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
February 9, 2007,
Board decision is REVERSED as to the Board's finding that the 1969 RO
decision did not contain
error in its application of § 3.303, and the CUE matter is REMANDED for
the Board to determine
whether, on the record before the RO in 1969, the evidence established
manifestly that correction
10


of the error would have changed the outcome–i.e., that an award of
service connection would have
resulted had the RO given weight to the lay evidence of record. Because
the Board failed to discuss
the contention that the RO erred in its application of VAR 1380, that
matter is REMANDED for the
Board's consideration of that matter in the first instance.
DATED: February 3, 2009
Copies to:
Theodore C. Jarvi, Esq.
VA General Counsel (027)
11