Excerpt from decision below:
"The appellant argues that the Board failed to make a determination "as to
the credibility of the veteran's evidence standing alone," but rather weighed his evidence against "contrary evidence," specifically the lack of a notation of a blood transfusion in the service medical records. The central purpose of section 1154(b) is to relax the evidentiary standard for proving that an injury occurred in combat service because the very nature of combat service precludes thorough and accurate documentation of all injuries and events occurring during such service. Appellant's Brief (Br.) at 13.
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"While the Board appeared to come to this conclusion by comparing statements made by the appellant at various times through the course of the claims and appeals process, the Board did not engage in the three-step analysis noted in Collette, a process put in place specifically to take into account the difficulties of
corroborating evidence of a service-connected injury sustained in combat.
In addition, in its weighing of the evidence, the Board discounted the
appellant's statement that he received blood transfusions during service, particularly his statement that he received a
3
transfusion while beingevacuated byhelicopter from the field where he suffered his gunshot wound, because the service medical record did not contain any such indications. R. at 8. This finding is directly contrary to the purpose of section 1154, which specifically states that the Secretary is to accept testimony from veterans regarding incidents or injuries occurring during combat even though
there is no official record of the events. As the Board inappropriately discounted the appellant's testimony regarding blood transfusion occurring during combat and failed to apply the three-step analysis noted in Collette, it is impossible for the Court to determine whether the Board arrived at its factual conclusion that the appellant's law evidence was not credible in accordance with applicable law."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3986
LEO J. MOORE, 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, Leo J. Moore, appeals through counsel an
August 3, 2009, Board of Veterans' Appeals (Board) decision that denied his claims
for service connection for hepatitis C and for secondary cirrhosis of the liver. Record (R.) at R. at 3-16. The appellant and Secretary both filed a brief and the appellant filed a reply brief. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the August 2009 Board decision. A single judge may conduct that review because the outcome in this case is controlled by the Court's precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's August 2009 decision and remand the matter for readjudication.
Mr. Moore served on active duty in the U.S. Marine Corps from March 1963
to May 1967 and served in combat. R. at 558. In February 2004, the appellant filed
claims for, inter alia, entitlement to service connection for hepatitis C and for secondary liver cirrhosis. R. at 506-525.
A March 2005 rating decision denied the appellant's claims. R. at 349-57.
The appellant filed a Notice of Disagreement in September 2005 and the regional office (RO) issued a Statement of the Case (SOC) in January 2007. R. at 135-59, 338. In November 2008 the Board remanded the appellant's claims so that further investigation into the nature and etiology of his hepatitis C and liver
cirrhosis could be undertaken. R. at 56-59. In February 2009, the RO issued a Supplemental SOC. R. at 38-42. The Board issued its decision currently on appeal in August 2009. R. at 3-16. In his brief before this Court, the appellant asserts that the Board failed to properly apply 38 U.S.C. § 1154(b) and to provide an adequate statement of reasons and bases for its decision.
For veterans who have served in combat, 38 U.S.C. § 1154(b) provides that the Secretary shall accept lay testimony as sufficient proof of service incurrence
provided that such evidence is found "satisfactory" and "consistent with the circumstances, conditions or hardships of such service," and there is an absence of "clear and convincing evidence to the contrary." See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996); 38 C.F.R. 3.304(d) (2010). In other words, section 1154(b) relaxes the evidentiary requirements for establishing in-service incurrence or aggravation of a disease or injury for certain combat-related compensation claims. See 38 U.S.C. § 1154(b); Caluza v. Brown, 7 Vet.App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir 1996) (table). However, the provisions of section 1154(b) do not provide a substitute for proof of either a current diagnosed disability or medical nexus evidence. See Brock v. Brown, 10 Vet.App. 155, 162 (1997) ("[T]he reduced evidentiary burden provided for combat veterans by 38 U.S.C. 1154(b) relate[s] only to the question of service incurrence, '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.'"(quoting Caluza, 7 Vet.App. at 507)). Section 1154(b) "sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute." Collette, 82 F.3d at 392-93.
As the first step, it must be determined whether the veteran has proffered
"satisfactory lay or other evidence of service incurrence or aggravation of
such injury or disease." As the second step, it must be determined whether the
proffered evidence is "consistent with the circumstances, conditions, or hardships
of such service." The statute provides that if these two inquiries are met, the
Secretary "shall accept" the veteran's evidence as "sufficient proof of service-connection," even if no official record of such incurrence exists. Thus, if a veteran satisfies both of these inquiries mandated by the statute, a factual presumption arises that the alleged injury or disease is service-connected.
Id., quoting 38 U.S.C. § 1154(b).
A Board decision must consider all relevant evidence of record, and
discuss all "potentially
2
applicable" laws and regulations. 38 U.S.C. § 7104; Majeed v. Principi,
16 Vet.App. 421, 431 (2002); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). Under 38 U.S.C. § 7104(d)(1), a decision of the Board shall include a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Gilbert v. Derwinski, 1 Vet.App. 49, 56 (1990). Further, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
The appellant argues that the Board failed to make a determination "as to
the credibility of the veteran's evidence standing alone," but rather weighed his evidence against "contrary evidence," specifically the lack of a notation of a blood transfusion in the service medical records. The central purpose of section 1154(b) is to relax the evidentiary standard for proving that an injury occurred in combat service because the very nature of combat service precludes thorough and accurate documentation of all injuries and events occurring during such service. Appellant's Brief (Br.) at 13.
The Secretary argues that the Board only considered and weighed his
credibility against the lack of supporting evidence and his own inconsistent statements. Secretary's Br. at 11.
In this case, it is undisputed that the appellant is a combat veteran.
Accordingly, 38 U.S.C. § 1154(b) is applicable. However, the Board determined that the appellant was not a "credible historian" and that, accordingly, his lay testimony was not credible. R. at 9-10. While the Board appeared to come to this conclusion by comparing statements made by the appellant at various times through the course of the claims and appeals process, the Board did not engage in the three-step analysis noted in Collette, a process put in place specifically to take into account the difficulties of corroborating evidence of a service-connected injury sustained in combat.
In addition, in its weighing of the evidence, the Board discounted the
appellant's statement that he received blood transfusions during service, particularly his statement that he received a
3
transfusion while being evacuated by helicopter from the field where he
suffered his gunshot wound, because the service medical record did not contain any such indications. R. at 8. This finding is directly contrary to the purpose of section 1154, which specifically states that the Secretary is to accept testimony from veterans regarding incidents or injuries occurring during combat even though
there is no official record of the events. As the Board inappropriately
discounted the appellant's testimony regarding blood transfusion occurring during combat and failed to apply the three-step analysis noted in Collette, it is impossible for the Court to determine whether the Board arrived at
its factual conclusion that the appellant's law evidence was not credible
in accordance with applicable law.
Further, the appellant argues that the Board failed to address the probative value of the evidence that revealed he was treated for gonorrhea during service which
is a "high-risk sexual activity." Appellant's Br. at 20. Review of the Board decision reveals that, although the Board mentioned that "high-risk sexual activity" was among the risk factors for hepatitis C infection and noted the evidence of the appellant's sexually transmitted disease in service, the Board did not actually state what weight was assigned to this risk factor in its determination that the risk factors that "most likely" caused his disabilities began after his service. R. at 6, 10. The Secretary does not address this argument.
Review of the Board decision reveals that the Board simply stated that "
based on a review of the record, the risk factors that most likely caused the veteran's disabilities began after the veteran's service more than 40 years ago." R. at 10. The Board provided no explanation of what probative value it placed, if any, on the appellant's treatment for a sexually transmitted disease while
in service. Accordingly, the Board failed to provide adequate reasons or
bases for the determination that the appellant's treatment for gonorrhea while in service was a risk factor for hepatitis C. See Allday and Gilbert, both supra. Thus, the Court will vacate the Board's decision and remand the matters so that the Board may readjudicate these matters in accordance with the standard for analysis
set forth in Collette.
The Court notes that the appellant has raised other arguments regarding
the Board's reasons and bases in the August 2009 decision. In light of the Court decision to vacate and remand the Board decision, the Court does not reach those arguments here and the appellant is free to raise them on
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remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) ("A narrow
decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at
readjudication, and, of course, before this Court in an appeal, should the Board rule against him.").
Upon consideration of the forgoing analysis and of the appellant's and the
Secretary's briefs, and a review of the record, the Board's August 3, 2009, decision denying service connection for hepatitis C and secondary cirrhosis of the liver is VACATED and the matters REMANDED.
DATED: May 27, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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