Davidson v. SHINSEKI

United States Court of Appeals for the Federal Circuit
2009-7075

BERTHA G. DAVIDSON,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Bertha G. Davidson, of Statesville, North Carolina, pro se.

Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him on the
brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T.
Manhardt, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy
Assistant General Counsel, and Rachael T. Shenkman, Staff 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 Ronald M. Holdaway
 United States Court of Appeals for the Federal Circuit
2009-7075

BERTHA G. DAVIDSON,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims 07-2070, Judge
Ronald M. Holdaway.

__________________________

DECIDED: September 14, 2009
__________________________

Before LINN, DYK, and PROST, Circuit Judges.

LINN, Circuit Judge.

Bertha G. Davidson (“Ms. Davidson”) appeals a decision of the United States

Court of Appeals for Veterans Claims (“Veterans Court”), which affirmed a decision of

the Board of Veterans’ Appeals (“Board”) finding that Ms. Davidson’s husband did not

die from a service-connected or compensable disability. In re Davidson, No. 02-16 322

(Bd. Vet. App. June 28, 2007) (“Board Op.”), aff’d, Davidson v. Shinseki, No. 07-2070

(Vet. App. Mar. 5, 2009) (“CAVC Op.”). Because the Veterans Court ignored the

precedent of this court and incorrectly interpreted 38 U.S.C. § 1154 to require a medical

opinion to prove nexus between a veteran’s death and in-service disease, we vacate

and remand.
 I. BACKGROUND

Ms. Davidson is the surviving spouse of Grant J. Davidson (“Mr. Davidson”), who

served on active duty in the United States Army from 1967 to 1972, including combat

service in Vietnam. CAVC Op. at 1. Medical records showed that Mr. Davidson

suffered from anxiety both before and during his service. Id. at 1-2. On July 8, 1973,

Mr. Davidson drowned while swimming with his cousins at a pool that was part of a

recreation facility operated by the company for which he then worked. Id. at 2; see also

J.A. 111. Mr. Davidson’s death certificate listed the immediate cause of death as

“[d]rowning,” and indicated that his death was “[a]ccidental,” rather than the result of

suicide, homicide, or natural causes. J.A. 58.

In 1975, Ms. Davidson submitted an initial claim for entitlement to dependency

and indemnity compensation, death pension, and accrued benefits. CAVC Op. at 2.

The Department of Veterans Affairs (“VA”) denied her claim, and the Board affirmed,

concluding that the accidental drowning death of Mr. Davidson was not service

connected. Id. Ms. Davidson applied to reopen the claim in 1999, and, in 2005, the

Board reopened the claim for further development of the record concerning the cause of

Mr. Davidson’s death. Id. A VA psychiatrist reviewed the medical record and

concluded that it was not likely that Mr. Davidson committed suicide, and that “it is not

at least as likely as not that, at the time of his death, the veteran was suffering from [an]

acquired psychiatric disability that had its clinical onset in the service and caused or

contributed materially in producing his demise.” J.A. 146. Ms. Davidson, however,

submitted her own written and oral testimony to the Board, in which she stated her

belief that Mr. Davidson had committed suicide as a result of a mental disorder related

to his military service. Board Op. at 13-14. The Board credited the VA psychiatrist’s

2009-7075 2
testimony and concluded that Ms. Davidson was “not competent to provide a probative

(persuasive) opinion on a medical matter such as the etiology of a disability.” Id. at 14.

The Board therefore found that Mr. Davidson’s death was accidental rather than the

result of suicide, and that his anxiety disorder did not cause or materially contribute to

his death. Id. at 3. Thus, the Board denied entitlement to service connection. Id. at 15.

The Veterans Court affirmed, reasoning that the Board’s determination as to the

cause of Mr. Davidson’s death was not clearly erroneous. CAVC Op. at 4. The

Veterans Court considered and rejected Ms. Davidson’s argument that the Board had

erred by failing to accept her lay testimony concerning the cause of Mr. Davidson’s

death. Id. at 5. In reaching its conclusion, the Veterans Court held that “lay

statements . . . do not eliminate the need for a valid medical opinion establishing a

nexus between [a veteran’s] death and the in-service disease.” Id. Applying this

principle to Ms. Davidson’s testimony, the Veterans Court concluded that “[t]he lay

statements by [Ms. Davidson] that [Mr. Davidson’s] death was a result of a mental

disorder do not provide this required medical nexus because, as the Board properly

concluded, she is not competent to provide evidence that requires medical knowledge

such as an opinion of the etiology of the veteran’s death.” Id. Ms. Davidson appeals

from that decision.

This court’s jurisdiction over appeals from the Veterans Court is strictly limited by

statute. Under 38 U.S.C. § 7292(a), we have jurisdiction to review a decision of the

Veterans Court “with respect to the validity of a decision of the [Veterans] Court on a

rule of law or of any statute or regulation . . . or any interpretation thereof (other than a

determination as to a factual matter) that was relied on by the [Veterans] Court in

2009-7075 3
making the decision.” However, unless 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).

II. DISCUSSION

A. Section 1154(b)

In her informal brief, Ms. Davidson argues that the Veterans Court misinterpreted

38 U.S.C. § 1154(b). See Informal Br. of Appellant ¶ 2. Section 1154(b) governs the

treatment of lay evidence of service connection for veterans who engage in combat:

In the case of any veteran who engaged in combat with the enemy in
active service with a military, naval, or air organization of the United States
during a period of war, campaign, or expedition, the Secretary shall accept
as sufficient proof of service-connection of any disease or injury alleged to
have been incurred in or aggravated by such service satisfactory lay or
other evidence of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or hardships of
such service, notwithstanding the fact that there is no official record of
such incurrence or aggravation in such service, and, to that end, shall
resolve every reasonable doubt in favor of the veteran.

38 U.S.C. § 1154(b) (emphases added); see also 38 U.S.C. § 1154(a) (requiring “due

consideration” to “all pertinent medical and lay evidence” even in cases not involving

combat injury). We understand Ms. Davidson’s argument to be that the Veterans Court

misinterpreted § 1154(b) by failing to require that the Board consider her lay testimony

about the cause of Mr. Davidson’s death.

We conclude that § 1154(b) is inapplicable. As the text of § 1154(b) makes

clear, the section applies only to “lay or other evidence of service incurrence or

aggravation of [an] injury or disease.” Id. § 1154(b) (emphasis added). Thus, in this

case, § 1154(b) could be used only to show that Mr. Davidson incurred or aggravated a

disease during service. As the Veterans Court correctly noted, the Board found an in-

2009-7075 4
service disease. Specifically, “the Board found that [Mr. Davidson] suffered from an

anxiety disorder in service.” CAVC Op. at 5. The reason that Ms. Davidson’s claim for

service connection was denied was not because Mr. Davidson did not incur a disease

during service, but rather because of the perceived absence of a nexus between that

disease and Mr. Davidson’s death. See 38 U.S.C. § 1310(a) (“When any veteran dies

after December 31, 1956, from a service-connected or compensable disability, the

Secretary shall pay dependency and indemnity compensation to such veteran’s

surviving spouse, children, and parents.” (emphasis added)); 38 C.F.R. § 3.312(a) (“The

death of a veteran will be considered as having been due to a service-connected

disability when the evidence establishes that such disability was either the principal or a

contributory cause of death.” (emphasis added)); see also Caluza v. Brown, 7 Vet. App.

498, 507 (1995) (“Section 1154(b) deals with the question whether a particular disease

or injury was incurred or aggravated in service—that is, what happened then—not the

questions of either current disability or nexus to service . . . .”), aff’d, 78 F.3d 604 (Fed.

Cir. 1996) (unpublished table decision). Because § 1154(b) concerns only whether a

disease was incurred or aggravated in service—not whether the disease was the

principal or a contributory cause of death—the Board did not misinterpret § 1154(b) by

declining to give controlling weight to Ms. Davidson’s testimony about Mr. Davidson’s

cause of death.

B. Section 1154(a)

Ms. Davidson also argues that “the [Veteran’s] Court did not

consider . . . competent lay or medical evidence.” See Informal Br. of Appellant ¶ 4.

Ms. Davidson offered her own lay testimony to the Board suggesting that Mr. Davidson

had committed suicide as the result of anxiety or depression incurred or aggravated

2009-7075 5
during service. Board Op. at 13-14. The Veterans Court affirmed the Board’s rejection

of this evidence, held that “a valid medical opinion” was required to prove nexus, and

concluded that Ms. Davidson was “not competent to provide evidence that requires

medical knowledge.” CAVC Op. at 5. We interpret Ms. Davidson’s argument on appeal

to be that the Veterans Court erred in interpreting 38 U.S.C. § 1154(a) by requiring that

nexus be proven with “a valid medial opinion.”

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due

consideration” to “all pertinent medical and lay evidence” in evaluating a claim to

disability or death benefits. We have consistently held that “[l]ay evidence can be

competent and sufficient to establish a diagnosis of a condition when (1) a layperson is

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

contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the

time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492

F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). In fact, we have previously

explicitly rejected the view of the Veterans Court that “competent medical evidence is

required . . . [when] the determinative issue involves either medical etiology or a medical

diagnosis.” Id. at 1376-77 (quoting Jandreau v. Nicholson, No. 04-1254, 2006 WL

2805545, at *3 (Vet. App. Aug. 24, 2006)) (alterations in original); see also Buchanan v.

Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that

lay evidence lacks credibility merely because it is unaccompanied by contemporaneous

medical evidence.”).

Ignoring this precedent, the Veterans Court in this case stated categorically that

“a valid medical opinion” was required to establish nexus, and that Ms. Davidson was

2009-7075 6
“not competent” to provide testimony as to nexus because she was a layperson. CAVC

Op. at 5. The Veterans Court’s holding in this case is in direct conflict with our

precedent and must be vacated. We leave it to the Veterans Court, applying the

principles set forth in Jandreau, to determine in the first instance on remand what further

proceedings may be required.

III. CONCLUSION

For the foregoing reasons, we vacate the judgment of the Veterans Court and

remand to the Veterans Court for further proceedings consistent with this opinion.

VACATED AND REMANDED

COSTS

Costs are awarded to Ms. Davidson.

2009-7075 7