Jandreau v. Nicholson

United States Court of Appeals for the Federal Circuit

2007-7029

ALVA JANDREAU,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for
claimant-appellant. With him on brief was Zachary M. Stolz.

Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee.
With her on the brief were Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were
Michael J. Timinski, Deputy Assistant General Counsel; and Y. Ken Lee, Attorney, United
States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
 United States Court of Appeals for the Federal Circuit

2007-7029

ALVA JANDREAU,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: July 3, 2007
___________________________

Before MICHEL, Chief Judge, and BRYSON and DYK, Circuit Judges.

DYK, Circuit Judge.

Alva Jandreau (“Jandreau”) appeals the judgment of the United States Court of

Appeals for Veterans Claims (“Veterans’ Court”). That court affirmed an earlier decision

of the Board of Veterans’ Appeals (“Board”) that denied service connection for residuals

of a right-shoulder dislocation. We reject appellant’s argument that the evidentiary

standard should be relaxed, but hold that the Veterans’ Court improperly held that lay

evidence cannot be used to establish a medical diagnosis. We remand for further

proceedings consistent with this opinion.

BACKGROUND

Jandreau served honorably in the U.S. Army from May 1957 to May 1959. In
May 1997, Jandreau filed a claim with the Veterans Administration (“VA”) for residuals

of a right shoulder injury. He asserted that the injury to his shoulder had occurred

during basic training at Fort Dix, when he had dislocated his shoulder and had been

treated for his injury on the base. The VA attempted to obtain Jandreau’s service

medical records, but was unable to do so because those records had been destroyed in

a 1973 fire at the National Personnel Records Center in St. Louis.

In an effort to provide the necessary evidence as support for his claim of service

connection despite the destruction of the records, Jandreau submitted a number of

documents to the VA. He submitted a statement from a fellow serviceman, Frederick

Burnham, averring: “I remember Alva [Jandreau] being in great pain after dislocating his

shoulder while in training.” 1 J.A. at 35. Jandreau also submitted multiple medical

reports, detailing medical examinations conducted in 2000. Those reports stated that

Jandreau suffered pain, arthritis and rotator cuff impingement in his right shoulder. In

particular, one report by Dr. Timothy Snell, M.D., assesses Jandreau’s condition as

“[r]ight shoulder pain, most likely sequelae of his dislocation of the shoulder.” Id. at 7.

Jandreau also submitted a radiology report indicating a history of right-shoulder

dislocation and pain and documents indicating treatment for that condition.

The VA denied service connection because “no medical evidence was received

showing continuity of treatment for the right shoulder since discharge from military

service.” J.A. at 78. Jandreau appealed to the Board, which issued its decision on May

1
The VA specifically allows veterans to introduce into evidence statements
of fellow service members when records were destroyed in the 1973 fire. See
Veterans Benefits Administration Adjudication Procedures Manual M21-1MR, part III,
subpart iii, ch. 2, § E.27.b (2005), available at http://www.warms.vba.va.gov/admin21/
m21_1/mr/part3/subptiii/ch02/ch02_sece.doc, page 2-E-5.

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27, 2004. The Board denied service connection for Jandreau’s injury, reasoning that

Dr. Snell’s report merely recorded Jandreau’s assertion that he had suffered a

dislocation but did not diagnose a dislocation when it occurred. The Board stated that

“the Board is not required to accept evidence that is simply information recorded by a

medical examiner, unenhanced by medical opinion.” J.A. at 13. It further concluded

that “[m]edical diagnosis and causation involve questions that are beyond the range of

common experience and common knowledge, and require the special knowledge and

experience of a trained physician.” Id. The Board rejected the testimony of both

Jandreau and his fellow serviceman, because “[w]hile the veteran and his buddy are

arguably competent to present evidence concerning the occurrence of an injury, they

are not competent to present evidence to establish the etiology of a current disability.”

Id. The Board thus found that “there is no competent evidence on file linking the

veteran’s current right shoulder disabilities to service or to any incident therein.” Id.

Jandreau appealed to the Veterans’ Court, which affirmed the Board’s decision.

The court concluded that the Board did not err in rejecting lay evidence that Jandreau

suffered a dislocation during service and “did not err in discounting Dr. Snell’s medical

opinion because it was premised on a fact that Mr. Jandreau was not competent to

establish—that he had dislocated his shoulder during service.” Jandreau v. Nicholson,

No. 04-1254, slip op. at *3 (Vet. App. Aug. 24, 2006). The court held that “[w]here the

determinative issue involves either medical etiology or a medical diagnosis, competent

medical evidence is required; however, lay assertions of symptomatology or injury may

suffice where the determinative issue is not medical in nature.” Id. Thus the court held

that “whether [Jandreau] experienced a dislocation of his shoulder requires a medical

2007-7029 3
diagnosis.” Id.

Jandreau timely appealed the decision of the Veterans’ Court to this court. We

have jurisdiction pursuant to 38 U.S.C. § 7292(a). Cromer v. Nicholson, 455 F.3d 1346,

134-49 (Fed. Cir. 2006).

DISCUSSION

I

On appeal Jandreau first argues that the destruction of records while in the

government’s custody should result in a relaxed evidentiary standard for veterans. We

reject this argument.

The statute provides that “a claimant has the responsibility to present and

support a claim for [VA] benefits.” 38 U.S.C. § 5107(a). In our decision in Cromer, 455

F.3d 1346, we considered and rejected the argument that service connection should be

presumed when a veteran’s medical records are destroyed while in the government’s

custody. 455 F.3d at 1350-51. In Cromer, the medical records were destroyed in the

same 1973 fire at the National Personnel Records Center that resulted in the presumed

destruction of Jandreau’s records. See id. at 1347. We reasoned that the veteran has

the evidentiary burden of establishing his claim in veterans’ benefits cases and that

Congress and the VA have specifically shifted that burden in particular cases, but have

not done so here. Id. at 1350-51. We further noted that the VA has eased the

evidentiary burden on veterans whose records were lost in the 1973 fire, but has not

provided for an adverse presumption of service connection. Id. at 1351. 2

2
See Veterans Benefits Administration Adjudication Procedures Manual
M21-1MR, part III, subpart iii, ch. 2, § E.27.b (2005), available at
http://www.warms.vba.va.gov/admin21/m21_1/mr/part3/subptiii/ch02/ch02_sece.doc,

2007-7029 4
 Jandreau on appeal does not deny that our decision in Cromer is controlling on

the issue of burden shifting, but asserts that his claim is different because he asserts

only that his burden of proof should be “somewhat relaxed.” Reply Br. at 1. To the

extent Jandreau seeks a modification of his burden of proof, we see no material

difference between his argument and the argument we rejected in Cromer. To the

extent that Jandreau seeks to invoke traditional evidentiary adverse inference rules, we

find those rules to be inapplicable, even if we were to agree that they apply in the

context of VA proceedings. The general rules of evidence law create an adverse

inference when evidence has been destroyed and “(1) . . . the party having control over

the evidence had an obligation to preserve it at the time it was destroyed; (2) . . . the

records were destroyed with a culpable state of mind; and (3) . . . the destroyed

evidence was relevant to the party's claim or defense such that a reasonable trier of fact

could find that it would support that claim or defense.” Residential Funding Corp. v.

DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal citation and quotation

marks omitted); see also 31A C.J.S. Evidence § 168 (2007); 2 Kenneth S. Brown,

McCormick On Evidence § 264 (6th ed. 2006). The burden is on the party seeking to

use the evidence to show the existence of each criterion. Residential Funding, 306

F.3d at 107. There is no claim here that the records were willfully or recklessly

destroyed. While some circuits have held that a showing that a party was negligent in

page 2-E-5 (listing alternate documents, such as statements from service medical
personnel, statements of fellow service members, letters, photographs or prescription
records, state or local accident and police reports, that the veteran can provide to
substitute for documents destroyed in the 1973 fire).

2007-7029 5
the destruction of records creates an adverse inference, 3 we need not decide whether

that is the correct rule because Jandreau conceded at oral argument that there was no

evidence of government negligence leading to the destruction of the records.

II

Jandreau’s second argument on appeal is that the Veterans’ Court erred in

holding that that lay evidence is insufficient “where the determinative issue involves

either medical etiology or a medical diagnosis,” and that accordingly, “whether

[Jandreau] experienced a dislocation of his shoulder requires a medical diagnosis.”

Jandreau, No. 04-1254, slip op. at *3. We agree. The holding of the Veterans’ Court is

inconsistent with our decision in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.

2006), which was decided shortly before the decision of the Veterans’ Court in this

case.

Buchanan involved a situation where the veteran claimed service connection

resulting from schizophrenia that allegedly began during his service. The veteran

sought to establish service connection by submitting affidavits of relatives and his

commanding officer testifying that his symptoms of paranoid schizophrenia first

manifested themselves during service, as well as a medical opinion from 2001, almost

twenty years after the conclusion of his service, that stated that his symptoms first

3
See Residential Funding, 306 F.3d at 108; Rogers v. T.J. Samson Cmty.
Hosp., 276 F.3d 228, 232 (6th Cir. 2002). Other circuits have held mere negligence
insufficient to apply an adverse presumption. See, e.g., Aramburu v. The Boeing Co.,
112 F.3d 1398, 1407 (10th Cir. 1997); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.
1997); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995); Vick v.
Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975); see also Med. Lab.
Mgmt. Consultants v. Am. Broad. Co., 306 F.3d 806, 824 (9th Cir. 2002); Jackson v.
Harvard University, 900 F.2d 464, 469 (1st Cir. 1990).

2007-7029 6
appeared during service. Id. at 1333. The Board determined that lay evidence without

confirmatory documentary evidence cannot be credible, and the Veterans’ Court

affirmed. Id. at 1337. We reversed, holding that numerous veterans’ statutes and

regulations require consideration of lay evidence. Id. at 1334-35; see also 38 U.S.C.

§§ 1154(a), 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b). In other words we found that the

statute makes clear that, in the veterans’ context, traditional requirements for

admissibility have been relaxed. See 38 U.S.C. § 5107(b) (“The Secretary shall

consider all . . . lay and medical evidence of record in a case . . . with respect to

benefits.”). We concluded that “lay evidence is one type of evidence that must be

considered” and that “competent lay evidence can be sufficient in and of itself.”

Buchanan, 451 F.3d at 1335. We noted that the Board retains discretion to make

credibility determinations and otherwise weigh the evidence submitted, including lay

evidence. Id. at 1336-37. The rule announced in Buchanan is particularly important

when veterans’ service medical records have been destroyed. Unless lay evidence

were allowed, it would be virtually impossible for a veteran to establish his claim to

service connection in light of the destruction of the service medical records.

Under Buchanan the conclusion of the Veterans’ Court that “competent medical

evidence is required . . . [when] the determinative issue involves either medical etiology

or a medical diagnosis” is too broad. Jandreau, No. 04-1254, slip op. at *3. Lay

evidence can be competent and sufficient to establish a diagnosis of a condition when

(1) a layperson is competent to identify the medical condition, 4 (2) the layperson is

4
Sometimes the layperson will be competent to identify the condition where
the condition is simple, for example a broken leg, and sometimes not, for example, a
form of cancer.

2007-7029 7
reporting a contemporaneous medical diagnosis, or (3) lay testimony describing

symptoms at the time supports a later diagnosis by a medical professional. Contrary to

the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but

extends to the first two as well. Whether lay evidence is competent and sufficient in a

particular case is a fact issue to be addressed by the Board rather than a legal issue to

be addressed by the Veterans’ Court. We do not reach the question whether in the

present case the lay evidence is competent and sufficient to establish shoulder

dislocation, a matter beyond our jurisdiction. We remand to the Veterans’ Court so that

it may remand to the Board for further consideration under the correct legal standard.

CONCLUSION

For the foregoing reasons, the decision below is

REVERSED AND REMANDED

COSTS

No costs.

2007-7029 8