# Smith v. Brown

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

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## Smith v. Brown, 8 Vet. App. 546 (1996) {#6731344}

*8 Vet. App. 546*

_Smith v. Brown, 8 Vet. App. 546, decided 1996-02-14._

KRAMER, Judge,
concurring:

I concur in part II.A.; however, I cannot agree with part II.B. to the extent that the majority predicates its remand on a five percent probability that the appellant’s present neurological disorder is related to service. Evidence to this degree means that there is a 95% probability that there is no relationship between the appellant’s present disability and service. Simply put, there is no legal basis upon which a five percent possibility can constitute the predicate evidentiary base that would permit an appellant to prevail. See Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1991) (“[A] veteran need only demonstrate *555that there is an ‘approximate balance of positive and negative evidence.’ ... In other words, ... the preponderance of the evidence must be against the claim for benefits to be denied.... [Thus,] when a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that [the] veteran prevails.”); see also 38 U.S.C. § 5107(b). As the claim must fail on this basis, any failure by the BVA to deal adequately with it constitutes harmless error. See 38 U.S.C. § 7261(b); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Kehoskie v. Derwinski 2 Vet.App. 31, 34 (1991).

On the other hand, I would remand based on another part of Dr. Calhoun’s statement quoted by the majority. In sum, Dr. Calhoun indicated that the appellant’s gunshot wound and the accompanying concussion with loss of consciousness made it likely that the appellant’s present condition was caused by these events. R. at 255. The BVA dismissed Dr. Calhoun’s statement partly on the basis that there was no loss of consciousness because service medical records (SMRs) did not so indicate. While the SMRs are silent as to loss of consciousness, the appellant clearly testified that during the event in which he was wounded he did lose consciousness (“And at that time, I came to[ ] with dirt and everything on top of me_”) R. at 122-23. As the majority also correctly recognizes, under 38 U.S.C. § 1154(b), the appellant’s testimony as to his loss of consciousness during combat, even in the absence of official records, must be accepted by the Secretary as long as such loss of consciousness was consistent with the circumstances, conditions, or hardships of such combat. See Caluza v. Brown, 7 Vet.App. 498, 507 (1995). Thus, the BVA has failed to address Dr. Calhoun’s statement adequately and I would remand on this basis.

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IVERS, Judge, filed the opinion of the Court. KRAMER, Judge, filed a concurring opinion.

IVERS, Judge:
George A. Smith, Jr., appeals from a July 23, 1992, Board of Veterans’ Appeals (BVA or Board) decision which denied his claim for *548service connection for a seizure disorder as a residual of a concussion or gunshot wound. George Smith, BVA 92-17472, (July 23, 1992). The appeal presents two questions. First, can the BVA Chairman’s sua sponte grant of reconsideration of a Board decision, precipitated by a Notice of Disagreement (NOD) predating November 18, 1988, and thus beyond the jurisdictional reach of this Court, defeat the right of judicial review of a later Board decision with an NOD permitting judicial review? We hold that the right of judicial review may not be so defeated. The second question is whether the Board erred in denying the appellant’s claim on the merits. We hold that it did err in the four ways set forth in part II.B. of this opinion.

I. Facts

The appellant served in the United States military from February 1942 until July 1945. Record (R. at 48, 221). The service medical records (SMRs) indicate that he served in the European Theater of Operations and was wounded in action on five occasions: on November 3, 1943, he was wounded in the right upper arm, elbow, and wrists (R. at 22); on December 30, 1943, he suffered a cerebral concussion and minor abrasions (R. at 27, 48); on September 3, 1944, he sustained a gunshot wound through the left cheek which penetrated the neck (R. at 25, 29); on January 8, 1945, he received abrasions to the right arm and back (R. at 31); and on January 10, 1945, he suffered a sprained back after being knocked down by a shell explosion (R. at 33-34). He was awarded the Purple Heart five times. R. at 50. A December 1943 SMR contained a diagnosis of “concussion [illegible].” R. at 27; see R. at 43. The record also noted that in February 1944 the appellant was hospitalized with “psychoneurosis, anxiety state, chronic, recurrent, severe” incurred in the “line of duty.” R. at 43-44. The July 1945 separation examination noted the cerebral concussion as a “[p]resent physical defeet[ ]”, but it also noted that his neurological diagnosis was “normal.” R. at 48. In August 1945, he was denied service connection for a cerebral concussion and a back sprain. R. at 54.

A March 1984 physician’s note indicated that the appellant was being prescribed anti-seizure medications and had had neurological problems since 1980. R. at 62-64. Dr. Douglas McNinch, a neuropsyehologist, and Dr. David Wilson, a psychology intern, noted that his neurological problems had resulted in episodic confusion, disorientation, and memory loss. R. at 64.

A January 1985 VA Regional Office (RO) decision denied the appellant service connection for a cerebral concussion, cere-brovascular disease with partial complex seizure disorder, and status post bilateral carotid endarterectomy. R. at 110-12. Endarterectomy is the surgical removal of the inner layer of an artery which has thickened or occluded. Webster’s Medi-oal Desk Dictionary 210 (1986) (hereinafter Webster’s). He filed a timely NOD, a Statement of the Case (SOC) was issued (R. at 113-15), and the appeal progressed (R. at 117). In May 1985, the appellant testified that his current medical problems were directly related to his service injuries, pointing out that he was diagnosed with psychoneurosis following an episode where he was buried in a foxhole with the body of another soldier on top of him. R. at 122-23, 126. He also testified in May 1985 that, although physicians have asked him whether he had had any head injuries subsequent to service, “the only injuries that I have ever had that I could relate to this problem were the concussions that I suffered back in military service.” R. at 124. In November 1985, the BVA denied service connection for both disorders. R. at 140. The veteran requested reconsideration (R. at 142), and in January 1987 the BVA denied service connection because the appellant did not provide any medical opinions associating the cerebrovascular disease with the concussion reported in service (R. at 170).

In January 1988, in an attempt to reopen his claim, the appellant submitted to the RO several articles relating seizures to head trauma. R. at 182, 197. Reopening was denied for lack of new and material evidence. R. at 202. In March 1988, the appellant appeared at a hearing before the RO where he contended, inter alia, that his rating decision of June 1946 (R. at 54-55), which af*549firmed the August 1945 RO decision (R. at 53), did not include the back disorder and the cerebral concussion, and therefore, this error should have “amended” or “corrected” his claim. R. at 207. VA treated this as an NOD, an SOC was issued, and he filed an appeal to the BVA. R. at 222-23. A December 1988 BVA decision remanded the case to the RO to adjudicate the question of the gunshot wound to the face in relation to a seizure disorder. R. at 232. The Board stated:

Thus, strictly speaking, the prior Board decisions were not “final” adjudicatory actions on this particular point. The veteran is therefore entitled to a decision “on the merits” for at least this aspect of his claim rather than having it simply addressed as a reopened claim after final adjudication as was done in this ease.

Id. The RO reviewed the matter and held that “it is not within the realm of possibility much less probability that seizures commencing about 1983 are due to the left cheek wound in 1944.” R. at 234. An SOC was issued (R. at 238), and the appellant appealed to the BVA. In December 1989, the BVA requested an Independent Medical Expert opinion, and presented two questions to the expert. R. at 247. In February 1990, Dr. Calvin Calhoun, a neurologist, examined the appellant’s medical records (including his SMRs) and submitted his response as follows:

[BVA:] What is the likelihood that the veteran’s seizure disorder may be independently attributable to head injury?

[Dr. Calhoun:] It is statistically unlikely that the veteran’s seizure disorder may be “independently” attributable to closed (none [sic] penetrating) head injury 30 years after the events. Most research on the subject indicates subsequent seizure occurrence greatest in the first year and at most 5% after 20 years. There are no good documented 30 year (or more) studies at this time.

On the other hand, small undetected areas of vascular damage and some gliotic areas with impaired neurons may become irrita-tive foci with subsequent decrease in perfusion with transient ischemia and/or hy-poxemia. [R. at 254.]

[BVA:] If the seizure disorder may reasonably be related to head injury, what is the likelihood that the disorder is a sequela of: (a) the gunshot wound of the face in service; or (b) the cerebral concussion(s) in service; or (c) a combination thereof? [Dr. Calhoun:] The seizure disorder may be related to subclinical brain injury with precipitation by subsequent cerebrovascu-lar disease which developed over the years since the closed head injuries (concussion). It may be noted that the “gunshot wound of the face in service” (with attending fracture of the mandible and neck injury) of its self [sic] may not be related to the seizures which emanate from the brain parenchy-ma. On the other hand, there was accompanying loss of consciousness which is the chief sign of concussion. Thus, the facial injury caused an additional concussion making the likelihood that the underlying cause of the seizure disorder may be a combination of “(a)” and “(b)”. [R. at 255.]

On June 14, 1990, after de novo review of his claim of service connection for a seizure disorder as a residual of a concussion or gunshot wound, the BVA denied service connection and noted that the SMRs did not show any loss of consciousness associated with the gunshot wound as reported by Dr. Calhoun. R. at 266. On June 21, 1990, the appellant requested that his claim be reopened as he was submitting “new evidence” regarding “brain” concussion. R. at 269. He submitted duplicate SMRs. R. at 270-73. The RO denied reopening of the claim. R. at 275.

In July 1990, he submitted results of a brain scan from October 1989 (R. at 280) and an electroencephalogram (EEG), also from October 1989 (R. at 281). The appellant also referred to “brain mapping” results (R. at 277), which appear later in the record as part of a motion for reconsideration. See R. at 333. He was informed by the RO that this information was new but not material because it failed to show service connection. R. at 283. In September 1990, the appellant filed an NOD. R. at 285. On August 13, 1991, the BVA denied reopening of the sei*550zure disorder claim for lack of new and material evidence. R. at 317.

The appellant submitted a statement contending that the BVA had substituted its own medical opinion for that of Dr. Calhoun, failed to provide reasons and bases as to why he could not fall within the five percent “pertinent population deviation” discussed by Dr. Calhoun (R. at 341), and failed to apply the benefit of the doubt in his favor. The appellant filed a motion for reconsideration, dated November 21, 1991, of the August 13, 1991, BVA decision. R. at 320-22. The Deputy Vice Chairman of the BVA, in an order which is not dated but was apparently received on March 17, 1992 (see R. at 7), granted the appellant’s motion for reconsideration, stating:

I am hereby ordering reconsideration by an expanded panel of the Board of Veterans’ Appeals (BVA) as provided by section 7103(b) of title 38, United States Code, of BVA’s decisions dated June 14, 1990, and August 13, 1991. The reconsideration decision, once promulgated, will replace those decisions and constitute the final Board decision in this matter.

R. at 339. On July 23, 1992, the BVA noted that there had been no final prior BVA adjudication of the appellant’s claim, reviewed the appeal on a de novo basis, and denied service connection for a seizure disorder. Smith, BVA 92-17472, at 4. The appellant filed a timely appeal with this Court. On September 16, 1994, the Secretary filed an advisory letter with the Court noting that the Chairman’s order granting reconsideration nullified earlier BVA decisions and deprived those decisions of finality.

II. Analysis

A. Jurisdiction

This Court reviews final BVA decisions. 38 U.S.C. §§ 7252(a), 7266(a); Matter of Wick, 40 F.3d 367, 370 (Fed.Cir.1994); Mayer v. Brown, 37 F.3d 618, 619-20 (Fed.Cir.1994); Wachter v. Brown, 7 Vet.App. 396, 397 (1995) (per curiam order). A BVA decision is final unless a timely appeal is filed with this Court, or unless the Chairman of the BVA orders reconsideration on the Chairman’s initiative or on the motion of the appellant. 38 U.S.C. § 7103(a); 38 C.F.R. §§ 20.1000, 20.1001 (1995). Section 7103 of title 38 of the U.S.Code provides:

(a) The decision of the Board determining a matter under section 7102 of this title is final unless the Chairman orders reconsideration of the decision in accordance with subsection (b). Such an order may be made on the Chairman’s initiative or upon motion of the claimant.

(b) ....

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(3) .... The decision of the panel shall constitute the final decision of the Board.

(c) The Board on its own motion may correct an obvious error in the record, without regard to whether there has been a motion or order for reconsideration.

Thus, once a case is reconsidered, the “decision of the panel shall constitute the final decision of the Board” and the previous BVA decision is nullified. Boyer v. Derwinski, 1 Vet.App. 531, 532-35 (1991).

VA regulations outline in more detail when reconsideration may be accorded: (1) on allegation of obvious error of fact or law; (2) on new and material evidence from service department records; or (3) where allowance of benefits was influenced by false or fraudulent evidence. 38 C.F.R. § 20.1000. A motion for reconsideration must be in writing and include the name of the veteran or other claimant, the VA file number, and the date of the BVA “decision, or decisions, to be reconsidered.” 38 C.F.R. § 20.1001(a). In addition:

[The motion] must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans’ Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.

38 C.F.R. § 20.1001(a).

This Court’s appellate jurisdiction derives exclusively from the statutory grant *551of authority provided by Congress, and the Court may not extend that jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Premier v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski 1 Vet.App. 2 (1990). In establishing this Court, Congress mandated that only cases “in which a notice of disagreement [has been] filed under section [7105] ... of title 38, United States Code, on or after [November 18, 1988]” would be heard by this Court. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); 38 U.S.C. § 7251 note; see also Burton v. Derwinski, 933 F.2d 988, 989 (Fed.Cir.1991) (“a notice of disagreement has a specific meaning in the context of these cases: it is a document that initiates an appeal from an agency of original jurisdiction.”). This Court, sitting en banc, has held that “[t]here can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). Thus, the jurisdiction-conferring NOD referred to in VJRA § 402 is a written communication that initiates appellate review of an initial determination by the agency of original jurisdiction. Hamilton, 39 F.3d at 1582, aff'g 4 Vet.App. at 535-37.

Here, the- appellant filed an NOD in September 1990 respecting an RO decision refusing to reopen his claim. Propelled by that NOD, the BVA issued a decision in August 1991. In response to the August 1991 decision, the appellant filed a motion for reconsideration of that, and only that, Board decision. The Secretary argues that the BVA’s sua sponte initiative in reaching back to an earlier BVA decision which had been issued pursuant to an earlier NOD, vitiates the appellant’s September 1990 NOD. This argument must fail.

At the time the appellant filed his September 1990 NOD it was a valid NOD, under VJRA § 402, for purposes of conveying jurisdiction on this Court over the issue whether he is entitled to service connection for a seizure disorder. See Hamilton, supra; Bernard v. Brown, 4 Vet.App. 384, 390 (1993) (NOD as to RO refusal to reopen service-connection claim gives Board jurisdiction to decide merits of that claim). Such timely filing of a post-VJRA NOD had judicial-review-conferring potential not possessed by the earlier, pre-VJRA NOD and gave the appellant a right to a future Court decision on that claim once a final, adverse Board decision was issued and a timely Notice of Appeal (NOA) under 38 U.S.C. § 7266(a) was filed. But see Frazer v. Brown, 6 Vet.App. 19, 23 (1993). The Secretary would have the Court pretend that the September 1990 NOD never existed and that the judicial-review lights associated with a timely post-VJRA NOD could be eradicated by the BVA Chairman. When confronted by a similar argument by the Secretary as to an NOA timely filed in this Court, we held that the BVA Chairman could not deprive this Court of jurisdiction to review a BVA decision by granting reconsideration of that decision after the NOA had been filed here. Cerullo v. Derwinski 1 Vet.App. 195, 196 (1991). The Secretary’s position in the instant ease is contrary to the basic approach of Cerullo and to the concept of appellate rights and the statutory and regulatory protection afforded those rights. See 38 U.S.C. § 5104(a) (requiring Secretary to include with notice of results of VA (including BVA) adjudication decisions “an explanation of the procedure for obtaining review of the decision”); 38 C.F.R. § 3.103(b)(1) (1994) (claimants and their representatives are entitled to notice of “the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision”); 38 C.F.R. § 20.204(c) (1995) (only a claimant or his or her representative may withdraw NOD). To conclude that the granting of a motion for reconsideration by the Chairman, pursuant to section 7103, could divest the post-VJRA NOD of its jurisdiction-conferring ability as to judicial review would contravene the plain language and the purpose of the VJRA. An appellant cannot be deprived of his or her right to appeal to this Court as a result of the Chairman’s *552action to reconsider a prior decision, or as á result of action by the BVA to correct an obvious error in the record, under 38 U.S.C. § 7103.

Accordingly, the Court concludes that a potential right to judicial review in this case was initiated by the September 1990 post-VJRA NOD as to the appellant’s service-connection claim and was perfected (but not satisfied) once the Board issued its adverse July 1992 decision (which replaced the adverse August 1991 BVA decision) and the appellant filed a timely NOA therefrom. That NOD's judicial-review viability could be extinguished by the claimant’s withdrawal of the NOD, by' a VA award of all benefits sought, by a final, unappealed BVA decision, or by a final Court decision. Here, the BVA-appeal arid potential judicial-review rights conferred by the September 1990, post-VJRA NOD were not satisfied by the August 1991 BVA decision because that decision’s finality was abated by the appellant’s motion for reconsideration filed within 120 days after that decision and the timely appeal of the July 1992 BVA reconsideration decision to this Court. See Rosler v. Derwinski 1 Vet.App. 241, 249 (1991) (finality of BVA decision abated by motion for reconsideration if claimant files motion with BVA during 38 U.S.C. § 7266(a) 120-day judicial appeal period for filing NOA, and BVA decision is not appeal-able until its finality is restored or a reconsidered BVA decision is issued).

The appellant’s judicial-review rights were not affected by the March 1988 pre-VJRA NOD, which precipitated the final, unap-pealed (indeed unappealable) BVA decision of June 1990, because the appellate rights afforded by that NOD were then only as to administrative review by a final BVA decision and were satisfied by that decision before the September 1990 NOD was filed. Hence, when that post-VJRA NOD was filed, it was the only viable NOD as to this claim. The Chairman’s decision to reconsider the June 1990 BVA decision resuscitated the pre-VJRA NOD entitling the appellant to a (new) final BVA decision in satisfaction of that NOD and such satisfaction was provided by the July 1992 BVA reconsideration decision. However, the potential judicial-review rights that had been conferred previous to the Chairman’s order by the September 1990 NOD, and were later perfected by the July 1992 adverse BVA decision and the timely NOA therefrom, could be satisfied and therefore extinguished only by the final decision being rendered by this Court today.

Moreover, to accept the Secretary’s interpretation of VJRA § 402 and section 7103 would cause this Court’s jurisdiction to turn on the decisions of the Chairman and the BVA. Cf. C.R. Bard, Inc. v. Schwartz, 716 F.2d 874, 877-78 (Fed.Cir.1983) (Federal Circuit holds that, as arbiter of its own jurisdiction, it must have the power to decide whether lower court has jurisdiction and to decide that question independent of conclusion reached by that lower court). The result of such an outcome would allow our jurisdiction to “ ‘float in the air’ to be seized by [the lower] tribunal at any time.” Cerullo, 1 Vet.App. at 197 (quoting Cochran v. Birkel, 661 F.2d 1219, 1222 (6th Cir.1981) (quoting Ruby v. Secretary of the Navy, 365 F.2d 385, 388-89 (9th Cir.1966) (en banc), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967))). The BVA Chairman could otherwise defeat the right to judicial review at a critical juncture in a case by ordering reconsideration of a prior decision which is beyond the reach of that right.

It is important to note that the Federal Circuit has stated, in an analysis of this Court’s jurisdiction, that Congress set the cutoff date of November 18, 1988, to allow the Court of Veterans Appeals to begin functioning with a manageable number of cases, and to “protect the new court from a flood of stale Board appeals.” Prenzler, 928 F.2d at 394 (citing 134 Cong.Rec. S16,650 (daily ed. Oct. 18., 1988) (statement of Sen. Cranston)). To allow that date to be used by the BVA Chairman as a shield against judicial review would be to give that date meaning beyond that intended in enacting judicial review. Indeed, to do so would exclude from judicial review any ease where reopening of a claim is sought and a prior final Board decision is reconsidered, and the claim rejected under a pre-November 18,1988, NOD. To the extent that Frazer, supra, suggests otherwise, it is overruled. Therefore, the Court holds that *553the appellant’s potential right to judicial review of his claim conferred by his post-VJRA NOD and thereafter perfected was not extinguished in this case even though a BVA decision which was based on a pre-VJRA NOD was subsequently vacated and replaced by a BVA reconsideration decision.

B. Merits of the Appellant’s Claim

 We turn now to the merits of the BVA’s decision. Pursuant to 38 U.S.C. § 7104(d)(1), a final decision of the Board must 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.” This Court has held “that the BVA [must] articulate with reasonable clarity its ‘reasons or bases’ for decisions, and in order to facilitate effective judicial review, the Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive,” and provide reasons or bases for rejecting material evidence submitted by or on behalf of the appellant. Gabrielson v. Brown, 7 Vet.App. 36, 39 (1994) (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990)). Where the Board fails to fulfill this duty, the Court is prevented from effectively reviewing the adjudication. Meeks v. Brown, 5 Vet.App. 284, 288 (1993); Browder v. Brown, 5 Vet.App. 268, 272 (1993). For the reasons set forth below, the Court holds that the BVA did not provide an adequate statement of reasons or bases for denying the veteran’s claim based on all the evidence presented.

The appellant correctly argues that the BVA did not indicate why the appellant could not be within the 5% window of individuals that may have seizure occurrence 20 or more years after injury, as stated by the neurologist, Dr. Calhoun, who provided the independent medical opinion. Rather, the BVA erred by substituting its own medical opinion for that of Dr. Calhoun. While the Board is not required to accept the medical authority supporting a claim, it must provide its reasons for rejecting such evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) (Hatlestad I); Gilbert, 1 Vet.App. at 57; Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).

In supporting its denial of service connection for a seizure disorder as a residual of the in-service gunshot wound, the Board did not address all of Dr. Calhoun’s statement. Specifically, Dr. Calhoun indicated that it was likely that the appellant was in a 5% range of possibility that a seizure disorder may be “independently” attributable to closed head injury and that the in-service “facial injury caused an additional concussion making the likelihood that the underlying cause of the seizure disorder may be a combination” of the in-service wound and the cerebral concussions in service. R. at 255. The Board simply dismissed, without a discussion and application of 38 U.S.C. § 1154(b), see Caluza v. Brown, 7 Vet.App. 498, 507 (1995), the appellant’s testimony that he had loss of consciousness after his injury, and stated that Dr. Calhoun had “mis-read” the service medical records. R. at 11-12. In addition, the Board simply ignored the expert articles that the appellant submitted which relate seizures to closed head trauma in war veterans 5% of the time. R. at 197-201.

In support of the denial, the Board cited and quoted medical textbooks for the propositions (1) that attributing seizure disorder to an injury occurring more than twenty years before is not scientifically accepted; (2) that “chronic” seizures resulting from trauma begin within six to twelve months after the injury; (3) that epilepsy is rare when no loss of consciousness occurred; and (4) that seizures after the age of fifty were most likely caused by cerebrovascular disease. R. at 11-12. Epilepsy means “any of various disorders marked by disturbed electrical rhythms of the central nervous system and typically manifested by convulsive attacks usually with clouding of consciousness.” Webster’s at 216. This Court held in Thurber v. Brown, 5 Vet.App. 119 (1993), that when the BVA, in rendering a decision, relies on a medical treatise obtained after the issuance of the most recent SOC or Supplemental SOC with respect to the claim at issue, *554the BVA is required to provide the appellant with reasonable notice of the medical treatise and of the reliance proposed to be placed on the treatise, as well as a reasonable opportunity for the appellant to respond to the medical treatise. Id. at 126; Austin v. Brown, 6 Vet.App. 547, 551 (1994) (BVA decision which relies upon medical opinion must allow the appellant an opportunity to submit additional evidence in response); Houston v. Brown, 5 Vet.App. 245, 247 (1993) (BVA must provide appellant with reasonable notice of any evidence, medical texts or treatises to be relied upon in rendering decision and reasonable opportunity to respond); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992) (quotations, rather than citations, from medical treatises should be used). The BVA did not comply with any of these requirements.

Moreover, the BVA decision failed to discuss the applicability of the benefit of the doubt doctrine as set forth in 38 U.S.C. § 5107(b). In Gilbert, this Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert, 1 Vet.App. at 54. Citing Gilbert, the Board stated that the proper standard to use was the “preponderance of the evidence standard” and then concluded that “the evidence preponderates against the veteran’s claim.” R. at 12. However, in Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Id. at 54. Under the benefit of the doubt doctrine established by Congress, when the evidence is in “relative equipoise, the law dictates that the veteran prevails.” Id.

The appellant is a combat veteran who was awarded the Purple Heart five times. The appellant’s service medical records dated December 1944 and current medical records note that the appellant had a concussion during combat which does not appear to be recognized by the BVA. R. at 43, 62, 255. With respect to injuries or disabilities incurred in or aggravated during combat, even in the absence of official records to corroborate that a claimed injury or disease was incurred in or aggravated during such combat, the Secretary is required to accept as sufficient proof of service connection satisfactory lay or other evidence, provided, however, that the evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (1994); Callizo, supra; West v. Brown, 7 Vet.App. 70, 75 (1994); Zarycki v. Brown, 6 Vet.App. 91, 97 (1993); R. at 122-23 (appellant’s testimony as to loss of consciousness). Service connection m^ be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); West and Zarycki, both supra. In determining whether to apply the benefit of the doubt doctrine under 38 U.S.C. § 5107(a) and 1154(b), the Board should consider the above discussion.

III. Conclusion

For the reasons stated above, the July 23, 1992, decision of the BVA is VACATED and the matter is REMANDED. The Court has stated that a remand is not merely for the purpose of rewriting the decision so that it would facilely comply with 38 U.S.C. § 7104(d)(1). Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991); Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). “A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher, 1 Vet.App. at 397.

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## Smith v. Brown, 10 Vet. App. 44 (1996) {#8205211}

*10 Vet. App. 44*

_Smith v. Brown, 10 Vet. App. 44, decided 1996-09-04._

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”).

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NEBEKER, Chief Judge:
The appellant, Bernard R. Smith, appeals an August 31, 1994, Board of Veterans’ Appeals (Board or BVA) decision denying entitlement to service connection for a varicocele. (Varicocele is “a varicose enlargement of the veins of the spermatic cord producing a soft compressible tumor mass in the scrotum.” Webster’s Medical Desk Dictionary 751 (1986).) The Board’s decision also denied entitlement to service connection for residuals of a hemorrhoidectomy, but the appellant has not appealed that issue. The appellant has submitted a motion for remand in lieu of a brief. The Secretary has filed a response in opposition of the motion. After consideration of the record on appeal and the pleadings of the parties, the Court will vacate the *45BVA’s decision and remand the matter for the following reasons.

I. FACTS

The appellant served in the U.S. Army from June 1944 to April 1946. Record (R.) at 21. He initially claimed entitlement to service connection for a varicocele in January 1978. R. at 24-27. He submitted a diagnosis dated March 1978 of a varicocele above his left testicle. R. at 38. The regional office (RO) discovered that his service medical records had been lost in a fire at the National Personnel Records Center in 1973. R. at 31. The RO denied his claim on March 1, 1978. R. at 34. A couple of weeks later, the appellant submitted a statement explaining that he had been kicked in the groin during basic training at Camp Blanding, after which he was unable to complete basic training due to the injury. R. at 41-42. He reported that he had been treated for this condition by Dr. Paul K. Good, but no treatment records were available. Ibid. The RO sent the appellant a letter requesting that he furnish the dates he was treated at Camp Blanding and any medical evidence which established the continuity of treatment from separation from service to the present. R. at 46. The appellant responded that he had not been able to obtain hospitalization records from Camp Blanding and that he was treated after discharge by Dr. Paul K. Good, but that those records were not available. R. at 48. A May 1978 RO decision referred to the appellant’s claim for service connection for a varicocele as an attempt to reopen and stated, ‘Vet[eran]’s claim is a duplicate of that denied by 3-1-78 rating due to not being shown in any service records. No new [and] material evidence submitted. Confirm prior denial.” R. at 51. The RO sent the appellant a letter dated May 24, 1978, stating:

The application which you recently filed for disability benefits is essentially a duplicate of a claim previously filed by you.

Our records show that we notified you on March 9, 1978 that your claim for varicose veins, left testicle was disallowed and that you were permitted to appeal this decision within one year from that time, otherwise that decision would become final unless you could submit new and material evidence. Since you have not presented any new and material evidence, no change in our previous decision is warranted and no action on your duplicate claim will be taken.

R. at 53.

The appellant then wrote the RO a letter stating it had always been his belief that the Army “keep[s] very detailed records,” but that his Camp Blanding records were not available. R. at 56. He attached a form dated May 29, 1945, which informed the commanding officer at Camp Blanding that the appellant was to report for physical examination on June 1, 1945. R. at 58. The RO again decided that the appellant had not submitted any new and material evidence. R. at 61, 63.

In May 1985, the appellant submitted another statement reiterating that he had been kicked in the groin and, as a consequence, had not finished basic training. R. at 70-71. The RO determined that no new and material evidence had been submitted to reopen his claim for service connection. R. at 78. In December 1988, the appellant submitted copies of daily sick reports which noted that in August 1944 he had undergone treatment for an unspecified condition which preexisted service. R. at 114-19. The RO again found that the appellant had not submitted any new and material evidence to warrant reopening his claim. R. at 124.

In a personal hearing in July 1989, the appellant alleged that after he had been kicked in the groin in August 1944, his service records had been changed to show that the varicocele preexisted service to protect the officer who had kicked him. R. at 149. He also testified that the injury he sustained at that time had persisted over the years and had interfered with his sex life. R. at 151. The hearing officer found that no new and material evidence had been submitted. R. at 157-58. The appellant appealed that decision to the BVA which, in a March 1990 decision, considered the claim on a de novo basis and determined that a varicocele was not incurred in or aggravated by service. R. at 170-74.

*46The appellant appealed that decision to this Court. Smith v. Derwinski, 2 Vet.App. 147 (1992). We held that the Board had improperly required objective medical evidence to corroborate the appellant’s testimony and had not complied with its duty to provide adequate reasons and bases for its denial of service connection; we vacated the Board’s decision and remanded the matter. On remand from this Court, the BVA issued another decision which relied on medical treatises to deny entitlement to service connection. R. at 252-58. The appellant again appealed to this Court, and on February 14, 1994, we granted the parties’ joint motion to vacate and remand for the Board to comply with Thurber v. Brown, 5 Vet.App. 119 (1993).

On remand, the appellant submitted a sworn statement from his wife in which she stated:

I am intimately familiar with the physical capacity of my husband, being married to him prior to him entering into the service. Upon his discharge, I truly affirm, that my husband suffered from a service related disability which interfered with sexual activity for the past 48 years; that I have personally witnessed discomfort, pain, anxiety, and occasional dysfunction as a result of such injury; that there is no treating physician, friend or person knowledgeable with the condition who is any longer alive.

R. at 266. On June 9, 1994, the BVA sent the appellant’s attorney a letter explaining that the BVA proposed to rely on “ ‘evidence developed or obtained by it subsequent to the issuance of the most recent’ Statement of the Case.... ” R. at 270. The letter went on to state:

A period of 60 days from the date of this letter is allowed for you to submit any additional argument or comment____

The Board will consider additional .evidence in this appeal only on written motion for good cause for its submission at this time and if the evidence is accompanied by a waiver of consideration by the agency of original jurisdiction.

R. at 270-71. Attached were a statement of the reliance the Board proposed to place on the evidence and excerpts from the pertinent treatises. R. at 272-92. No response was received to the invitation to submit within 60 days additional argument or comment, although apparently the White House forwarded to VA a copy of a letter the appellant had written to President Clinton regarding his quest for benefits. See R. at 294, 296. The Board’s decision now on appeal followed.

II. ANALYSIS

The appellant argues in his motion for remand that the BVA relied on medical treatises to support its denial of the appellant’s claim without providing the appellant with an opportunity to submit additional evidence as required by Thurber, supra, and Austin v. Brown, 6 Vet.App. 547 (1994). Although the February 1994 remand by this Court directed the BVA to comply with Thurber, supra, the BVA had restricted the appellant’s response to the submission of additional argument or comment and told him that the BVA would only consider additional evidence on written motion for good cause for its submission. See R. at 270. The appellant additionally argues that the BVA again failed to provide adequate reasons and bases for its denial in that it found the appellant’s testimony not to be particularly credible because of the lack of corroboration by medical records. The appellant points out that the BVA gave no reasons for its implicit rejection of his wife’s sworn statement. Finally, the appellant argues that the BVA failed to fulfill its duty to assist the appellant by not reopening his claim and informing the appellant that he had 60 days in which to furnish information regarding possible alternate sources of evidence as required by the VA Adjudication Procedure Manual, (M211). In response to the appellant’s motion, the Secretary argues that his claim for service connection was not well grounded and, therefore, any errors in the BVA’s decision are harmless.

In the interim, the Court of Appeals for the Federal Circuit upheld this Court’s decision in Barnett v. Brown, 83 F.3d 1380 (Fed.Cir.1996), aff'g 8 Vet.App. 1 (1995), concluding that the Board must preliminarily decide that new and material evidence has been *47presented in a ease it has previously adjudicated, before addressing the merits of the claim. Barnett, 83 F.3d at 1383. This is a mandatory jurisdictional requirement. 38 U.S.C. § 5108. Moreover, once the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 8 Vet.App. at 4. The Board’s review of the evidence of record is necessary to determine whether new and material evidence has been submitted, but a “review [of] the former disposition of the claim” (§ 5108, supra) by the Board is beyond its jurisdiction. Barnett, 83 F.3d at 1384 (holding “that the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented”); see also McGinnis v. Brown, 4 Vet.App. 239, 244 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). However, in the present case we need not decide whether Barnett is retroactively applicable because our earlier vacation and remand directed a merits consideration, not a new and material evidence analysis. Despite the Secretary’s argument to the contrary, we conclude that under the circumstances revealed in this record, the appellant’s claim is well grounded. While the well groundedness of the initial claim filed in 1978 may be questioned, we need not address the point. By the mid-1980’s, the record contained evidence that appellant was unable to complete basic training because of the Mck in the groin. More important is his testimony that the symptoms continued over the years and had interfered with his sexual performance. This was corroborated by the appellant’s wife’s statement. Plausibility of the claim thus existed at least from 1989. Accordingly, we deal with the other issues raised.

In its decision, the Board stated:

The Board’s review of several surgical and neurological texts does not show that blunt trauma of the scrotum or groin causes or helps to cause a varicocele.... Those texts show that the left testicle is affected 90 percent of the time (the veteran’s varicocele is on the left) and that the cause is idiopathic or due to incompetent valves in the testicular veins____ The Board finds that these authorities are probative as the etiology [of] this varicocele. As a matter of law, as a lay person, the veteran’s testimony as to the cause of his condition is not competent evidence of causation. Gowen v. Derwinski, 3 Vet.App. 286, 288-89 (1992). [This is a memorandum decision and therefore of no precedential value. See Bethea v. Derwinski 2 Vet.App. 252, 254 (1992); but see Espiritu v. Derwinski 2 Vet.App. 492 (1992).] Moreover, the veteran has not cited any medical texts or authorities to support his theory. Since there is no medical authority to support his position, the incidental evidence showing that he was treated for an unspecified preexisting 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 11-12. The Board also found that the preponderance of the evidence was against the appellant’s alternative claim that any preexisting varicocele was aggravated by service. R. at 12.

Thurber, 5 Vet.App. at 126, requires that before the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [Statement of the Case] or [Supplemental Statement of the Case] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence ... and a reasonable opportunity for the claimant to respond to it.

In Austin, this Court dealt with the same issue — a letter advising the appellant of the BVA’s intended reliance on evidence developed after the issuance of the last Statement of the Case and its requirement that good cause be shown to submit additional evidence. As this Court explained in Austin, the appellant’s right to submit evidence under Thurber cannot be premised on a preliminary showing of “good cause.” Austin, 6 Vet.App. at 551. As in Austin, the BVA’s decision here violates the fair process principle because it relies on evidence obtained in *48“a process that does not ensure an impartial opinion.” Id. at 552.

The Board suggests in its decision that the appellant’s testimony regarding in-service onset of his condition is not credible because he has not supported that testimony with medical documentation.

Since there is no medical authority to support his position, 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. Regarding the appellant’s alternative claim that, if his varicocele did preexist service, it was aggravated thereby, the Board stated it did “not find that the veteran’s testimony is particularly credible in view of the absence of records of treatment during the more than three decades which elapsed during the time after his discharge from service and his initial claim for service connection.” R. at 12. “Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone.” Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991); see also Triplette v. Principi, 4 Vet.App. 45, 49 (1993). Moreover, the Board does not even mention the appellant’s wife’s statement. The Board is not free to ignore evidence of record. Webster v. Derwinski, 1 Vet.App. 155, 159 (1991).

Finally, as the appellant points out in his motion for remand, VA failed to follow the VA Adjudication Manual, (M21-1) Part III, para. 4.22(c)(2), which requires that

If benefits were denied prior to May 18, 1990, and a case for which [the Army Surgeon General’s office (SGO) ] records may exist (Army veteran with service during the periods 1942-1945 or 1950-54) is encountered during normal processing, the regional office will reopen the claim on its own initiative to obtain any SGO records.

The record on appeal does not show that VA attempted to obtain any SGO records. Also, where, as here, service medical records have been destroyed or lost, the Board has a duty to advise the claimant to obtain other forms of evidence. Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992) (In “fire-related” cases, the M21-1 instructs VA personnel to assist the claimant in obtaining evidence from alternate or collateral sources and includes a list of appropriate alternate forms of evidence to be considered in lieu of missing service medical records.); see also Layno v. Brown, 6 Vet.App. 465, 469 (1994). The Board failed to do this.

III. CONCLUSION

Accordingly, the Board’s decision regarding denial of service connection for a varicocele is VACATED and the matter REMANDED for further adjudication. On remand, the appellant will be free to submit additional evidence and argument, and the Board must seek any other evidence it thinks is necessary to the resolution of the appellant’s claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).

Before NEBEKER, Chief Judge, and KRAMER, FARLEY, HOLDAWAY, IVERS, and STEINBERG, Judges.
ORDER ON RECONSIDERATION

Jan. 17, 1997

On consideration of the motion of the Secretary for reconsideration by the panel, it is by the panel

ORDERED that the motion for reconsideration is otherwise denied. It is further by the full Court

ORDERED that the motion for review by the full Court is denied.

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HOLDAWAY, Judge,
concurring:

I agree with the dissenting members. The Board, correctly, based on the precedent from this Court that was cited and relied upon in its decision, found the ease not well grounded. That finding, if correct, would obviate consideration of the issues upon which remand was based. Nonetheless I vote to deny en bane consideration. This case provides no precedent except in a very narrow range of eases that are factually identical. As such it is not a case of “exceptional importance” nor does it purport to vitiate our general rule that requires medical nexus. In short this case is an aberration. This judge, at least, will continue to apply the precedents cited in the dissent that preclude lay persons from supplying medical nexus to “well ground” a claim.