Smith v. Brown

STEINBERG, Judge,

with whom KRAMER, Judge, joined, dissenting:

We voted for the Secretary’s motion for en banc review of this two-judge opinion because we believe that the Secretary is correct that the Court’s holding that the claim here is well grounded is essentially inconsistent with the court’s easelaw requiring medical-nexus evidence where the question at issue is of a medical nature (for example, etiology, causation, or diagnosis). See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Hence, we believe that en banc review “is necessary to ... maintain uniformity of the Court’s decisions or to resolve a question of exceptional importance”. U.S.Vet.App.R. 35(c).

As the Secretary points out there is no “competent evidence establishing1 that the alleged kick in the groin [during service] caused the development of a varicocele.” Motion at 2. The Court relies, for its finding that the claim is well grounded, upon the appellant’s testimony and his wife’s statement that “the symptoms [it is unclear what symptoms specifically] continued over the years and had interfered with his sexual performance.” Smith (Bernard) v. Brown, 9 Vet.App. 363, 366-67 (1996).

In contrast, the Board concluded:

Since there is no medical authority to support [the appellant’s] position [that a kick in the groin caused his varicocele], the incidental evidence showing that he was treated for an unspecified pre-existing disorder in August 1944 and that his basic training was abbreviated is not relevant as those circumstances are germane to the issue of service incurrence only if one accepts his medically unsupported position that trauma caused the varicocele.

R. at 12. We believe that the Board is correct that lay evidence cannot be competent evidence of medical causation and that such evidence is required to well ground this claim. See Stadin v. Brown, 8 Vet.App. 280, 284 (1995); Moray v. Brown, 5 Vet.App. 211, 214 (1993); Kates v. Brown, 5 Vet.App. 93, 95 (1993); Grottveit, supra; Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992).

Although the Court in its opinion does not cite 38 C.F.R. § 3.303(b) (1995), regarding continuity of symptomatology, the Secretary seems to suggest in his motion that the Court’s opinion is implicitly relying on continuity of symptomatology to well ground the claim and that the conditions under which that might be permissible are not present because this case does not involve a potentially chronic condition that arose in service. On November 20, this Court issued a briefing order in Savage v. Brown, 9 Vet.App. 520 (1996), raising numerous questions about the meaning and application of § 3.303(b) regarding the use of or need for continuity of symptomatology as to a service-connection claim and what the relationship of that concept is to the need for medical evidence of a nexus between a current medical condition and the veteran’s service. Until those issues are resolved in Savage, the current opinion should be withheld.

In Caluza, the Court reiterated that medical evidence of nexus to service was generally required in order to well ground a service-connection claim. Caluza, supra (citing Grottveit, supra). As the Secretary’s motion indicates, the Court’s opinion in Smith will add confusion to the Court’s easelaw on the question of the nature and quality of the evidence needed to well ground a claim. Compare Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992) (holding physician statement that veteran’s death “may or may not” have been averted if medical personnel had been able to intubate him, a procedure complicated by his service-connected injuries, insufficient to well ground claim for service connection for veteran’s cause of death), and Boeck v. Brown, 6 Vet.App. 14, 16-17 (1993) (applying Tirpak, infra, and holding that physician’s statement that veteran was “ill-served” as a patient at VA hospital was too vague and speculative to well ground claim), and Lathan v. Brown, 7 Vet.App. 359, 365-66 (1995) (distinguishing Tirpak and stressing that medical opinions need not “be *50expressed in terms of certainty in order to serve as the basis for a well[-]grounded claim”), and Molloy v. Brown, 9 Vet.App. 513, 516 (1996) (distinguishing Tirpak and stating in dictum that medical evidence as to nexus to service expressed as “could” suffices for requirement of well-grounded claim, with Alemany v. Brown, 9 Vet.App. 518, 519 (1996) (ignoring Tirpak and holding that medical evidence as to nexus to service expressed as “possible” suffices for requirement of well-grounded claim), and Watai v. Brown, 9 Vet.App. 441, 443 (1996) (ignoring Tirpak and holding that medical evidence as to nexus to service expressed as “very well might have been” suffices for requirement of well-grounded claim); cf. Falzone v. Brown, 8 Vet.App. 398, 403, 406 (1995) (holding appellant’s flat-feet claim to be well grounded based on his statements regarding continuity of symptomatology, in-service notation indicating worsening of his pes planus, and confirmed existence of current condition on VA examination; his statements as to continuity of symptomatology “provide a direct link between the appellant’s active service and the current state of his condition”); Godfrey v. Brown, 7 Vet.App. 398, 406 (1995) (where service-connection claim is based on continuity of symptomatology under 38 C.F.R. § 3.303(b) (1994), competent medical evidence not necessarily required to make claim well grounded).

. Indeed, there is no competent medical evidence even suggesting such causation; evidence less definitive than that which establishes a fact meets the degree of certitude necessary to well ground a claim, see Meyer v. Brown, 9 Vet.App. 425, 432 (1996) ("[t]he amount of evidence sufficient to make a claim well grounded differs from the amount sufficient for an award of service connection”); Robinette v. Brown, 8 Vet.App. 69, 76 (1995) ("to be well grounded a claim need not be supported by evidence sufficient for the claim to be granted”).