United States Court of Appeals
for the Federal Circuit
__________________________
QUARENO COLANTONIO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2009-7067
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 07-0749, Judge John J. Farley, III.
___________________________
Decided: June 1, 2010
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SEAN A. RAVIN, Attorney at Law, of Washington, DC,
argued for claimant-appellant.
MEREDYTH COHEN HAVASY, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
COLANTONIO v. DVA 2
Assistant General Counsel, and JANE C. KANG, Attorney,
Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before BRYSON, GAJARSA, and PROST, Circuit Judges.
BRYSON, Circuit Judge.
Quareno Colantonio, a veteran who is seeking com-
pensation for a service-connected disability, appeals from
an adverse decision of the United States Court of Appeals
for Veterans Claims (“the Veterans Court”). Based on the
record in this case, the Veterans Court held that Mr.
Colantonio was not entitled to a free medical examination
in connection with his claim. Because it appears that the
Veterans Court may have applied an erroneous interpre-
tation of 38 U.S.C. § 5103A(d)(2), we vacate the judgment
and remand to provide the Veterans Court an opportunity
to address the issues before it under the proper interpre-
tation of the statute.
I
Mr. Colantonio served in the United States Army
from 1942 to 1945. More than 50 years later, in June
1999, he filed a claim with the Department of Veterans
Affairs (“DVA”) for compensation for a service-connected
back injury. In support of that claim, Mr. Colantonio
submitted a letter stating that he had been hospitalized
in 1943 and 1947 for the same back injury, which “was
never cured.” A regional office of the DVA denied the
claim, finding that it was not well grounded because there
was no record of any in-service treatment for a back
injury.
Mr. Colantonio appealed to the Board of Veterans’
Appeals. In his written statement, he explained that he
3 COLANTONIO v. DVA
injured his back during an in-service exercise requiring
him to jump up and down, and that he was admitted to
the hospital at that time. At the hearing before the
Board, however, Mr. Colantonio testified that he injured
his back when he missed a step while getting off an
airplane, at some point between 1942 and 1944, and that
he spent a week in the hospital as a result. He stated
that he twisted his back again during the same period,
but that he did not go to the hospital following that inci-
dent. He added that after he left the service he was
hospitalized for a back injury in 1947 or 1948. Thereaf-
ter, Mr. Colantonio worked at a desk job for 27 years
before he hurt his back again and retired on disability.
The Board denied service connection, finding that the only
evidence of any back injury that was incurred in service
was from Mr. Colantonio’s own statements, and that he
lacked “competence to give a medical opinion on diagnosis
or etiology of a condition.”
Mr. Colantonio appealed to the Veterans Court, which
granted a joint motion to remand in order to allow the
DVA to obtain Mr. Colantonio’s Social Security records
and any additional medical records that might be avail-
able. That remand resulted in a finding that Mr. Colan-
tonio’s medical records had been destroyed or were
otherwise unavailable. Because no new evidence was
discovered, the DVA again denied service connection, and
the Board affirmed that decision.
Mr. Colantonio appealed again to the Veterans Court,
asserting that the DVA had improperly failed to order a
medical examination pursuant to 38 U.S.C. § 5103A(d)(2)
and 38 C.F.R. § 3.159(c)(4), and that the Board had failed
to provide an adequate statement of its reasons for not
ordering a medical examination. The Veterans Court
agreed that the Board had erred in failing to consider
those provisions and failing to “articulate a basis for its
COLANTONIO v. DVA 4
finding that the appellant was not entitled to a medical
examination or opinion.” Nevertheless, the court found
that error to be harmless because
the evidence of record does not indicate that his
current disability may be associated with an
event, injury, or disease occurring in service. . . .
Even assuming that the appellant’s lay testimony
is sufficient to establish the occurrence of an inci-
dent or incidents during service, it cannot provide
the requisite medical nexus between service and
the appellant’s current back disability. . . . [T]he
appellant’s statements do not speak to matters
that are capable of lay observation, but rather
opine on the etiology of his back disability. . . . A
lay person is not competent to opine on matters
requiring medical knowledge, such as etiology of a
condition or nexus.
Moreover, the court found that Mr. Colantonio’s testi-
mony made clear that his back condition was intermittent
and not continuous, thus undermining the likelihood that
it was associated with an event, injury, or disease that
occurred during his military service. Accordingly, the
Veterans Court affirmed the denial of service connection.
II
On appeal, Mr. Colantonio argues that the Veterans
Court erred in its interpretation of section 5103A(d)(2).
That statute requires the Secretary to provide a medical
examination or obtain a medical opinion on behalf of the
veteran if the evidence of record
(A) contains competent evidence that the claimant
has a current disability, or persistent or recurrent
symptoms of disability; and
5 COLANTONIO v. DVA
(B) indicates that the disability or symptoms may
be associated with the claimant’s active military,
naval, or air service; but
(C) does not contain sufficient medical evidence
for the Secretary to make a decision on the claim.
38 U.S.C. § 5103A(d)(2).
Mr. Colantonio contends that Congress required
“competent evidence” to show current disability in sub-
paragraph A, but pointedly did not require “competent
evidence” to show service nexus in subparagraph B. For
purposes of subparagraph B, Congress required only that
the evidence “indicate[]” that the veteran’s symptoms or
injury “may be associated with service,” a low standard
that does not require the claimant to produce medically
competent evidence. Therefore, Mr. Colantonio argues,
his lay testimony regarding service connection for his
back injury should have been sufficient to establish the
nexus required by subparagraph B.
We recently addressed the same question of statutory
interpretation in Waters v. Shinseki, 601 F.3d 1274 (Fed
Cir. 2010). In that case, the appellant was diagnosed
with hypertension, depression, and diabetes after leaving
the service. He testified before the Board that those
conditions were caused by antipsychotic drugs adminis-
tered to him during service to treat schizophrenia. The
Board found that the appellant’s lay testimony was not
“competent evidence of a nexus” between his claimed
condition and his military service. On appeal from the
Board’s decision, the Veterans Court upheld the Board’s
ruling that a remand for a medical examination or opinion
was not required.
COLANTONIO v. DVA 6
On appeal to this court, Mr. Waters argued that sec-
tion 5103A(d)(2) sets forth different standards for sub-
paragraph A and subparagraph B, and that the Board
had improperly applied the stricter standard of subpara-
graph A to the nexus determination under subparagraph
B. We agreed and held that because those subparagraphs
within the same statutory provision “contain different
evidentiary standards . . . it would seem that Congress
intended them to provide for separate, although perhaps
related, evidentiary guidelines.” Waters, 601 F.3d at
1277. Nevertheless, we held that any possible error by
the Board in applying the wrong standard was harmless
because, notwithstanding the Board’s erroneous interpre-
tation of subparagraph B, the Veterans Court found that
Waters had not shown any factual basis for his claim. We
did not interpret the Veterans Court’s decision as holding
that competent medical evidence is necessarily required
to establish a nexus between service and a later disabil-
ity.
In this case, the Veterans Court’s statements—that
the appellant’s lay testimony “cannot provide the requi-
site medical nexus between service and the appellant’s
current back disability,” and that a lay person “is not
competent to opine on matters requiring medical knowl-
edge such as etiology of a condition or nexus”—can be
interpreted as meaning that a veteran’s lay testimony can
never be sufficient in itself to satisfy the nexus require-
ment in section 5103A(d)(2)(B). Such a ruling would be at
odds with our decision in Waters. Other language in the
Veterans Court’s opinion suggests that the court may not
have intended to adopt a rule requiring medically compe-
tent evidence in every case to establish nexus for purposes
of subparagraph B. We reiterate the interpretation of
subparagraph B adopted in Waters: that medically compe-
tent evidence is not required in every case to “indicate”
that the claimant’s disability “may be associated” with the
7 COLANTONIO v. DVA
claimant’s service. Of course, that is not to say that it will
always be possible to establish a nexus through lay evi-
dence, as there may be instances, such as the Waters case
itself, in which the lay evidence falls short of satisfying
the statutory standard.
Because the Veterans Court in this case did not have
the benefit of the Waters decision and may have over-
stated the extent to which competent medical evidence is
required to make the minimal showing of nexus required
by subparagraph B, we vacate the judgment and remand
to permit the Veterans Court to reconsider its harmless
error analysis in light of the proper interpretation of
section 5103A(d)(2).
VACATED and REMANDED