# Jones v. West

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

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## Jones v. West, 12 Vet. App. 383 (1999) {#8205522}

*12 Vet. App. 383*

_Jones v. West, 12 Vet. App. 383, decided 1999-05-11._

HOLDAWAY, Judge, filed the opinion of the Court. KRAMER, Judge, filed a dissenting opinion.

HOLDAWAY, Judge:
The appellant, Stephen B. Jones, appeals the May 1996 decision of the Board of Veterans’ Appeals (BVA or Board) which determined, inter alia, that his claim for secondary service connection of residuals of a fracture of the tibia and the fibula of his left leg was not well grounded. This appeal is timely, and the Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board.

I. FACTS

The appellant served on active duty in the U.S. Army from June 1968 to June 1970. In 1971, he was in a motorcycle accident wherein he suffered several injuries including a fractured left tibia and fibula. The appellant underwent several surgeries on his left leg which did not completely repair the nonunion of his left tibia and fibula. The surgeries also resulted in shortening his left leg by over four inches.

In January 1986, the appellant was granted service connection for post-traumatic stress disorder (PTSD) and subsequently assigned a 50% disability rating. In April 1990, his disability rating was increased to 70% disabling. In January 1991, the appellant filed a claim for service connection of his left leg condition. W.D. Gammon, Ph.D., a VA clinical psychologist, submitted a letter to the VA regional office (VARO) in support of the appellant’s claim for service connection of his left leg condition. He stated that after service the appellant had exhibited many behavioral indicia of PTSD, including thrill-seeking behavior. Dr. Gammon concluded that the appellant’s motorcycle accident in 1971 was the result of the appellant’s thrill-seeking behavior. In March 1991, the appellant submitted a Substantive Appeal with regard to the VARO’s decision denying an increased disability rating for PTSD, service connection for his right knee, and a clothing allowance. As part of his Substantive Appeal, the appellant stated: “My left leg condition is a result of thrill seeking in persuit [sic] of the constant adrenal [sic] rush reward Vietnam had given me after becoming a survivor.” At a June 1991 VA personal hearing, the appellant testified that Dr. Gammon felt that the appellant’s leg injury was caused by his thrill-seeking behavior. At an October 1991 hearing before the BVA, the appellant described the events leading up to his 1971 accident as follows:

Some people sent me on a mission to go to the liquor store to get some few more beers and I was driving back to this place and there was a car in front of me, just going slow and I looked out around him and saw it was safe to pass and I got beside him and he downshifted his car. When I got beside him and his car turned sideways and I served [sic] to avoid him and the center stand of my motorcycle hit the pavement at which time, the rear wheel was picked up off the pavement and I lost control and I went off the road.

Subsequently, Dr. Gammon submitted another statement pointing out that there was an increasing body of evidence “to support the notion that ‘thrill-seeking’ behavior is regularly seen in PTSD combat vet[erans].” The *385appellant also submitted an April 1993 statement that reiterated his belief that his motorcycle accident was precipitated by PTSD-indueed thrill seeking.

In February 1993, the VARO denied secondary service connection for the appellant’s left leg disability because the evidence of record did not demonstrate that the accident was caused by his thrill-seeking behavior. On appeal to the BVA, the Board determined that there was no reasonable basis in the evidence of record to show that the accident was caused by the appellant’s thrill-seeking behavior. The Board recognized that Dr. Gammon had opined that the accident was caused by thrill-seeking behavior, but stated that the doctor was not an eyewitness and “that the factual record does not support such a conclusion.”

II. ANALYSIS

A claim for secondary service connection must be granted when a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (1998). Like all claims, a claim for secondary service connection must be supported by “evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a); Buckley v. West, 12 Vet.App. 76, 84 (1998). A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App., 78, 81 (1990). Generally, for a claim to be well grounded, a claimant must submit each of the following: (1) a medical diagnosis of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd. per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With regard to a claim for secondary service connection, a claimant must provide competent evidence that the secondary condition was caused by the service-connected condition. See Wallin v. West, 11 Vet.App. 509, 512 (1998); Reiber v. Brown, 7 Vet.App. 513, 516-17 (1995). A BVA decision on whether a claim is well grounded is a matter of law which this Court reviews de novo. See Caluza, 7 Vet.App. at 505. The credibility of the evidence is presumed when determining whether a claim is well grounded. See Robi-nette v. Brown, 8 Vet.App. 69, 75-76 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993). However, the presumption of credibility does not apply where a fact asserted is beyond a person’s competency or where the evidence is inherently false. See id.

There is no dispute that the appellant suffers from a current disability of the left leg or that he is service connected for PTSD. The question before the Court is whether there is competent evidence to demonstrate a reasonable possibility that the motorcycle accident was proximately caused by PTSDinduced thrill-seeking behavior of the appellant. Based on de novo review of the evidence, the Court finds that there is not such evidence and that the claim is not well grounded. See Wallin, Reiber, and Caluza, all supra.

In Reiber, the Court held that a veteran’s contention, that his lower back disorder was caused as a result of a fall precipitated by his service-connected left ankle condition, required a two-step analysis to determine if the evidence was sufficient to establish proximate cause. 7 Vet.App. at 516. First, the Court determined that the appellant’s testimony was competent to establish that his service-connected ankle condition had caused his fall. See id. Second, the Court found that the appellant had submitted medical evidence that the fall had indeed caused his back injury. See id. Based on that analysis, the Court found the claim for secondary service connection for the lower back disorder well grounded. See id. at 517.

In the matter presently before the Court, the appellant is competent to testify as to the sequence of events that led to his motorcycle accident. See Reiber, supra. The appellant testified that the accident was caused when he attempted to pass a slow-moving automobile. He testified that he looked ahead and saw that it was safe to pass and pulled along *386side the slow-moving vehicle. At that time, for an unknown reason, the automobile downshifted and turned sideways. The automobile’s action caused the appellant to swerve to avoid the automobile, to lose control of his motorcycle, and to go off the road. When the appellant veered off the road, he suffered multiple severe injuries. The appellant’s testimony establishes that his accident was caused by the automobile that turned sideways while the appellant was attempting to pass it. There is no indication in the record that the appellant’s behavior was reckless or even negligent. In fact, if the appellant’s account is correct, he was proceeding in a careful manner and was injured by the negligence of the other driver. It was that negligence that was the proximate cause of his injury. Therefore, as the Board found, there is no reasonable basis in the evidence of record to demonstrate that the proximate cause of his left leg injuries was thrill-seeking behavior related to PTSD. For that reason, his claim is not well grounded. See Reiber and Caluza, both supra.

The appellant has submitted several statements indicating that he believes, in agreement with Dr. Gammon, that his motorcycle accident was caused by thrill-seeking behavior due to PTSD. First, the appellant is not competent to establish that any of his actions were caused by thrill-seeking behavior. That determination is a medical question that requires medical expertise. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Second, to the extent his statements imply that the accident was caused by any action on his part, such implication, in light of his contrary testimony, is insufficient to establish a well-grounded claim. Cf. Robinette and King, both supra (holding that statements that are inherently false are insufficient to well ground a claim).

Dr. Gammon is a medical professional who is competent to testify that the appellant’s service-connection PTSD caused thrill-seeking behavior in the appellant. See Cohen v. Brown, 10 Vet.App. 128, 139-42 (1997). That fact was expressly acknowledged by the Board. However, Dr. -Gammon was not an eyewitness to the scene of the appellant’s accident. Any opinion regarding what actions or sequence of events caused the accident is outside the scope of his competence. Cf. Espiritu, 2 Vet.App. at 494 (holding that lay opinions regarding medical questions were not competent evidence to establish a well-grounded claim). Therefore, Dr. Gammon’s medical opinion has no probative weight with respect to the proximate cause of the appellant’s accident. Cf. Cohen, 10 Vet.App at 145 (holding that a medical professional’s opinion based on a post-service examination of a veteran is not competent evidence that an in-service stressor occurred); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (holding that a medical opinion based on a factual predicate that had been rejected by the Board has no probative value and is not, therefore, material evidence that warrants a reopening of the previously disallowed claim). Because the appellant has not submitted evidence that demonstrates that his motorcycle accident and resulting left leg injury was proximately caused by thrill-seeking behavior, his claim is not well grounded, and the decision of the Board will be affirmed.

III. CONCLUSION

After consideration of the pleadings and a review of the record, the Court holds that the appellant has not demonstrated that the BVA committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the BVA decision fulfills the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1). See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

The decision of the Board is AFFIRMED.

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KRAMER, Judge,
dissenting:

On appeal, the Secretary makes essentially two arguments. First, he argues that, because the effective date for service connection for post-traumatic stress disorder (PTSD) is in 1984, the appellant did not have a “predicate service-connected disability” at the time of the 1971 accident and that his claim for secondary service connection is therefore barred by 38 C.F.R. § 3.310(a) (1998) and Allen v. Brown, 7 Vet.App. 439, 446 (1995) (en banc). Secretary’s Brief (Br.) *387at 11-12. Second, the Secretary argues that the evidence does not demonstrate that the appellant was suffering from PTSD at the time of the accident in 1971 and that PTSD therefore could not have caused the accident. Secretary’s Br. at 11, 16. Because I believe that the appellant’s claim is not barred as a matter of law and that he has submitted a well-grounded claim, I would vacate the decision of the Board and remand the matter for a merits adjudication. I therefore respectfully dissent.

With regard to the Secretary’s first argument (which was not addressed by the majority), 38 C.F.R. § 3.310(a) provides that a “[djisability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” However, contrary to the Secretary’s apparent interpretation of this section, there is nothing in the language of § 3.310(a) that would preclude secondary service connection for a secondary disability that arises prior to the effective date of service connection for the primary disability. See Gardner v. Brown, 5 F.3d 1466, 1458 (Fed.Cir.1993) (“starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter” (internal quotation marks omitted)), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); Smith (William A.) v. Brown, 35 F.3d 1516, 1523 (Fed.Cir. 1994) (canons of statutory interpretation apply also to interpreting regulations); see also Gardner, 513 U.S. at 118, 115 S.Ct. 552 (“interpretive doubt is to be resolved in the veteran’s favor”); Allen, 7 Vet.App. at 446 (same). Similarly, the Secretary’s reliance on Allen is misplaced. See Allen, 7 Vet.App. at 448 (“[T]he Court holds that the term ‘disability’ as used in [38 U.S.C.] § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition ... shall be compensated.” (emphasis in original omitted; emphasis added)). The pertinent language in Allen stands for the proposition that compensation for a disability attributable to a secondarily service-connected condition could be paid only for a period after service connection for the primary condition has been established. Cf. Barela v. West, 11 Vet.App. 280, 283 (1998) (although statute prohibited compensation for disability due to alcohol and drug abuse, it did not bar award of service connection). This language, however, simply does not address the service-connectability of a secondary condition that had its onset prior to the effective date of service connection for the primary condition. Consequently, I would reject the Secretary’s arguments that the appellant’s claim for secondary service connection is barred as a matter of law.

Further, I believe that the appellant’s claim is well grounded. As the majority acknowledges, “[tjhere is no dispute that the appellant suffers from a current disability of the left leg or that he is service connected for PTSD.” Ante at 385-86. As the majority further acknowledges, there is evidence of record that the appellant’s current left leg disability is attributable to his 1971 motorcycle accident. Ante at 384. Consequently, in order to well ground his claim for service connection, there must be evidence relating the appellant’s accident (and thus the resulting leg disability) to his service-connected PTSD. See Velez v. West, 11 Vet.App. 148, 158 (1998). Here, the appellant has submitted a statement indicating that his left leg condition was the “result of thrill seeking in p[u]rsuit of the constant adrenal rush reward Vietnam had given [him] after becoming a survivor.” R. at 619. The appellant also, submitted a statement in support of claim, in which he stated that “the residuals of fracture of [left] lower leg are ... the result of a motorcycle accident precipitated by [PTSD-]induced thrill seeking.” R. at 871-72. In addition, Dr. Gammon submitted a letter, stating that the appellant “exhibited many of the behaviors characteristically seen in individuals with PTSD including ‘thrill-seeking’ behavior. As a result of this behavior, [the appellant] was involved in a motorcycle accident ... resulting in a left leg injury for which he still wears a special brace and shoe.” R. at 583. Because I believe that the appellant is competent to opine as the nature of his behavior at the time of the accident (that he was engaging in thrill-seeking behavior) and as to whether it was that behavior that caused the accident, and be*388cause I further believe that the doctor is competent to opine as to a connection between the behavior that the appellant was engaging in at the time of the accident and his PTSD, I would find that the appellant has submitted plausible evidence that the accident, and thus his current leg disability, is related to his service-connected PTSD. See White v. Derwinski, 1 Vet.App. 519, 521 (1991) (threshold as to whether claim is well grounded is “rather low”).

As the majority points out, there is also evidence of record indicating that the actions of another driver, rather than the appellant’s PTSD-induced thrill seeking, may have caused the motorcycle accident. Admittedly, this evidence is patently more detailed and potentially more credible than the evidence that the appellant was engaging in thrill-seeking behavior at the time of the accident. However, the Court has consistently held that, for purposes of determining whether a claim is well grounded, the evidence in support of the claim is presumed credible. See Elkins v. West, 12 Vet.App. 209, 219 (1999) (en banc); Winters v. West, 12 Vet.App. 203, 208 (1999) (en banc); Pearlman v. West, 11 Vet.App. 443, 447 (1998); Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993). It is only in an ensuing merits adjudication that the weight and credibility of the evidence is to be assessed. See Robinette, 8 Vet.App. at 76; see also Rucker v. Brown, 10 Vet.App. 67, 72 (1997) (holding that Board erred in assessing weight and credibility of evidence before determining whether claim was well grounded). Consequently, this negative evidence, no matter how compelling, should not be considered in determining whether the appellant has submitted a well-grounded claim.

Rather than presume credible the evidence in support of the appellant’s claim, the majority, in reviewing de novo whether the appellant submitted a well-grounded claim, has essentially assessed the weight and credibility of the evidence, deemed more credible the evidence against the appellant’s claim, and thereby concluded that the actions of the other driver caused the appellant’s motorcycle accident and resulting injuries. In rejecting the evidence in support of the appellant’s claim (evidence that PTSD-induced thrill seeking caused the accident), the majority then implies that such evidence is inherently incredible because it conflicts with the negative evidence of record. Although the Board and the Court are not required, at the well-grounding stage, to presume to be true appellant-submitted positive evidence that is inherently incredible, see Robinette, supra, that exception to the presumption of credibility is not meant to allow the weighing of conflicting evidence at a well-grounding stage and the discarding of evidence that, although it supports the claim, appears to be less credible. See Rucker, 10 Vet.App. at 78 (Steinberg, J., concurring in part, dissenting in part) (at threshold stage of well grounding, Board generally ought not to weigh evidence or consider negative evidence).

For the foregoing reasons, I believe that the appellant’s claim is well grounded and that the claim therefore should be remanded for a merits adjudication.

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## Jones v. West, 12 Vet. App. 460 (1999) {#8205536}

*12 Vet. App. 460*

_Jones v. West, 12 Vet. App. 460, decided 1999-07-07._

STEINBERG, Judge:
The appellant, veteran James 0. Jones, appeals through counsel a January 6, 1998, decision of the Board of Veterans’ Appeals (BVA or Board) that denied as not well grounded, inter alia, a claim for Department of Veterans Affairs (VA) disability compensation pursuant to 38 U.S.C. § 1151 for residuals of a fall at a VA hospital. Record (R.) at 3. The appellant has filed a brief, and the Secretary has filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the BVA decision.

I. Relevant Background

Although no DD-214 is contained in the record on appeal (ROA), the BVA and an August 1995 Supplemental Statement of the Case both indicated that the veteran had active service from July 1945 to November 1946. R. at 2, 207. In March 1993, he filed a claim for VA benefits for an injury to his left hand and left knee asserted as “residuals” of a fall that he described as having been sustained on October 19, 1992, while he was being treated (for an ailment unrelated to this appeal) at the VA Medical Center *462(VAMC) in Allen Park, Michigan. R. at 105-06. He stated that while he was being transported in a wheelchair provided by VA he was “asked to get out of the wheelchair and walk down the hall”. R. at 106. Subsequently, he contended, while walking, he lost his balance and fell, causing pain in his left knee and left hand. Ibid. The October 22, 1992, VAMC discharge summary indicated that the veteran “complain[ed] of left[-]hand pain and left[-]knee pain due to a fall”. R. at 299. The summary also noted as follows: “Left[-]hand swelling is present due to a fall. Unable to walk normally due to lack of balance. He uses a cane for walking.” R. at 300.

In June 1995, a VA regional office (RO) denied as not well grounded the veteran’s claims for service connection for left-knee and left-hand disabilities based on an October 1992 fall in the VAMC. R. at 178-79. The veteran timely appealed to the Board. R. at 184, 200.

In August 1995, the VARO was notified that the veteran had settled a claim against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, based on injuries sustained during an October 1992 fah at the VAMC. R. at 210-13. Although the settlement agreement is not contained in the ROA, an August 1995 note, from a person identified as “Chief, Advisory Review Staff’, to the RO in Detroit, Michigan, indicated that the government had settled the claim for $3,000 and that the settlement did “not represent an admission of negUgence by” VA. R. at 222; see also R. at 210-13 (VA internal memorandum regarding veteran’s FTCA settlement). The appellant has not argued that such settlement did in fact represent an admission of VA fault or negligence. See generally Appellant’s Brief (Br.).

Records of VA treatment dated prior to the veteran’s October 1992 fall included a September 1992 examination pursuant to a complaint of pain in his left foot; the veteran was diagnosed as having “DJD [ (degenerative joint disease) ] and friction blister on [left] 1st MPJ [ (metacarpal phalangeal joint) ]”. R. at 294-95. Additional VA medical records (other than the VAMC discharge summary (R. at 299-300)) dated from October 1992 to March 1993, after the veteran’s fall, did not describe any left-hand or left-knee related complaints. R. at 301-13. However, a March 15, 1993, VA medical record included the veteran’s complaint of persistent left-hand pain following the October 1992 fall (R. at 314); an x-ray indicated as follows: “No significant findings when compared with the last study of 10-20-92. Again noted was [DJD] involving, in particular, the distal interphalangeal joints and — to a lesser extent — the metacarpophalangeal joints and interphalangeal joint of the thumb” (R. at 316). In April 1993, the veteran’s left hand was examined following a complaint of pain while typing. R. at 324. The VA examiner noted tenderness and ligament laxity with no swelling, and diagnosed the veteran as having arthritis. Ibid. In June 1993, the veteran described having fallen down two months earlier and was again diagnosed as having arthritis of the left hand. R. at 332. The veteran’s left-hand pain was noted again in August 1993, along with complaints of right-hand and right-shoulder pain. R. at 334.

The veteran’s left hand was next examined in March 1994, when a VA x-ray revealed subluxation of the second metacarpal phalan-geal joint; the examiner also noted DJD of the right shoulder. R. at 356. In June 1994, a rheumatologist noted the veteran’s complaints of pain in the knees and diagnosed the veteran as having DJD. R. at 375. An August 1994 VA medical record indicated that the veteran had reported a “giving way” of his left leg; DJD was noted at that examination as well as in September 1994, when DJD was noted as to both of the veteran’s knees. R. at 382, 386. In October 1994, a VA examiner noted bilateral knee crepitation. R. at 303. (Crepitation is “the noise made by rubbing together the ends of a fractured bone” or “like that made by throwing fine salt into a fire”. DoRLANd’s Illus-TKATED MEDICAL DICTIONARY 391 (28th ed.1994).) The veteran complained in January 1995 of left-knee discomfort (R. at 397) and of bilateral hand pain, which symptoms were noted as “suggestive” of carpal tunnel syndrome (R. at 412-13). In March 1995, the veteran complained of bilateral wrist and *463shoulder pain, but his knees were noted to be “doing well”; the examiner noted that the veteran’s wrists were swollen and noted cre-pitation of both knees. R. at 424-25. An April 1995 x-ray report of the veteran’s left hand showed degenerative changes involving primarily the distal and proximal interpha-langeal joint spaces with involvement of the second metacarpophalangeal joint, consistent with mild osteoarthritis. R. at 431. A May 1995 nerve-conduction velocity examination report noted an impression of bilateral mild carpal tunnel syndrome and nerve entrapment at the right elbow. R. at 434. The remaining VA medical records, dated from July 1995 to December 1996, documented a history of DJD, but indicated no complaints or treatment regarding left-knee or left-hand pain. See R. at 438-76.

In July 1996, the veteran testified under oath at a hearing before the RO concerning the facts of the October 1992 fall that he had previously described. R. at 235-36. He stated that his left hand hurt after he fell and that “[i]t swelled up” and he was “having problems with it”. R. at 236. He also stated that his knee “just gave away completely” at the time of the fall and that he still had “that problem”. R. at 237. He indicated that he continued to get treatment at VA for his left hand and left knee, and that he wore a knee brace “about three times a week” when his knee condition flared up. R. at 237-39.

In the January 1998 BVA decision here on appeal, the Board denied as not well grounded multiple claims under 38 U.S.C. § 1151 for residuals of conditions allegedly contracted as a result of multiple VA hospitalizations. R. at 445. In his brief, the appellant advances arguments only to support an appeal of the Board’s denial of service connection as to his left-hand and left-knee claims based on the October 1992 hospitalization, as described above, and, therefore, the Court considers that he has abandoned the other claims on appeal. See Ford v. Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328 (Fed.Cir.1997).

II. Analysis

The veteran’s claims for service connection for left-knee and left-hand conditions resulting from the October 1992 fall at the VAMC are premised on 38 U.S.C. § 1151, which provided, at the time of the veteran’s claim in March 1993 (R. at 105-06), in pertinent part:

Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment ..., and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter ... shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.

38 U.S.C. § 1151 (1992). That provision was subsequently amended; however, those amendments were made applicable only to claims filed on or after October 1, 1997. See Pub.L. No. 104-204 § 422(b)(1), (c), 110 Stat. 2926-27 (1996) (found at 38 U.S.C. § 1151 note) (subsection (c) nullifying October 1, 1996, effective date set forth in subsection (b)(1)); see also 38 U.S.C. § 1151 (1998); Brown v. Gardner, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); Boggs v. West, 11 Vet.App. 334, 343-44 (1998) (noting that revised section 1151 applies only to claims filed on or after “October 7[sic], 1997”, pursuant to specific provision of statute). Hence, the earlier version of section 1151 quoted above [hereafter referred to as “prior section 1151”] is applicable to the instant case and will be the only version hereafter referred to by the Court in this opinion.

Pursuant to the language of prior section 1151, the Court will treat the veteran’s claim for additional disability as it would a claim for service connection, see Boggs, 11 Vet.App. at 344-45 (considering prior section 1151 claim as a claim for service connection). “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a). A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Gen*464erally, for a service-connection claim to be well grounded under 38 U.S.C. §§ 1110 or 1131 a claimant must submit evidence of each of the following: (1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc) (citing Calma v. Brown, 7 Vet.App. 498, 506 (1995), aff'd. per curiam, 78 F.3d 604, 1996 WL 56489 (Fed.Cir.1996) (table), and Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Calma, supra), cert. denied sub nom. Epps v. West, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998) (mem.)). The second and third Calma elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was “noted” during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptoma-tology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symp-tomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.App. 488, 495-97 (1997).

Hence, because prior section 1151 provided that benefits for a disability compensable thereunder “shall be awarded in the same manner as if such disability ... were service[]conneeted”, 38 U.S.C. § 1151, the Court holds that the requirements for a well-grounded claim under this section are, paralleling those set forth in Calma, supra, generally as follows: (1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Similarly, assuming, without deciding, that a eontinuity-of-symptomatology analysis would apply in an prior section 1151 case, the veteran’s claim here generally would be well grounded if he submitted evidence of each of the following: (a) Evidence that a condition was “noted” during his VA hospitalization or treatment; (b) evidence showing continuity of symptomatology following such hospitalization or treatment; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-hospitalization/treatment symptomatolo-gy. (Any other element of a successful prior section 1151 claim, such as that the “injury [is] ... not the result of such veteran’s own willful misconduct” would be for consideration in the adjudication of the merits of a well-grounded prior section 1151 claim.) The credibility of the evidence presented in support of a claim is generally presumed when determining whether it is well grounded. See Elkins, 12 Vet.App. at 219 (citing Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995)). The determination whether a claim is well grounded is subject to de novo review by this Court. See Robinette, 8 Vet.App. at 74.

For purposes of considering whether the veteran’s claim was well grounded, the Court will assume, without deciding, that the fall in the VAMC occurred as the veteran described in his July 1996 sworn VA testimony. In this case, the veteran has adduced medical evidence of several current left-hand and left-knee disabilities, including DJD of the knees (R. at 316, 375, 382, 386), possible generalized osteoarthritis (R. at 431), left-hand arthritis (R. at 324, 332), subluxation of the second metacarpal phalangeal joint of the left hand (R. at 356), knee crepitation (R. at 303), and a suggestion of bilateral carpal tunnel syndrome (R. at 434). There is also incurrence evidence, in the form of both his testimony and the hospital report, which described the facts surrounding his fall in October 1992 at the VAMC. R. at 236-39, 299. However, the Court cannot find any competent medical evidence in the ROA that would show a nexus between his claimed left-knee and left-hand conditions and his October 1992 fall at the VAMC. Because the veteran has offered no medical evidence to relate any of his claimed conditions to VA treatment, the Court holds, on de novo review, that his claim under prior section 1151 is not well grounded on a standard well-groundedness analysis. See Epps, Boggs, and Calma, all *465supra; see also Ross v. Derwinski, 3 Vet.App. 141, 144-45 (1992) (holding that veteran’s unsupported allegations that loss of vision resulted from VA surgery was insufficient to well ground prior section 1151 claim).

Nor can the appellant prevail, on the facts of this ease, under prior section 1151, based on a continuity-of-symptomatology analysis— again, assuming without deciding, that such an analysis is applicable to an prior section 1151 case. The appellant argues as follows: “Continuity testimony up until the time of the current diagnosis establishes the medical nexus necessary.” Br. at 6 (citing Savage, 10 Vet.App. at 495-97). The appellant is correct that he is competent to describe the symptoms he has experienced. See Savage, supra; see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995); Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). However, the mere existence of left-hand and left-knee pain, which the appellant is competent to describe, does not necessarily mean that there is a nexus between his present conditions and the swollen left hand and complaints of left-hand and left-knee pain asserted as postaccident symptomatology. Such determinations would require specialized knowledge or training and are, thus, beyond the competency of a lay person. See Savage, 10 Vet.App. at 497 (medical evidence required to demonstrate relationship between present disability and claimed continuing symptomatology when lay observation not competent, to do so); Layno, 6 Vet.App. at 470; Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (although competent to testify as to symptomatology, lay persons not competent to testify as to “medical causation” of noted symptoms). Hence, the Court holds, on de novo review, that the veteran’s claim is not well grounded even if a continuity-of-sympto-matology analysis were applied to the facts of this case.

The appellant also asserts that “[t]he claim is well[ ]grounded because ... [prior section] 1151 contemplates benefits claims involving injuries paid for tort claims.” Br. at 6. He argues that the fact that prior section 1151 provided for an offset of prior section 1151 benefits in the amount of any settlement entered into under 28 U.S.C. §§ 2672 or 2677 (provisions of the FTCA) has the effect of making a claim for section prior 1151 benefits per se well grounded if such a settlement has been made. His reasoning appears to be that, by settling, the government has essentially not contested that the claimant suffered a particular injury as a result of the same operative facts upon which the FTCA claim had been based. We disagree. For the following reasons, the Court holds that an prior section 1151 claim based upon an incident as to which there has previously been a settlement under the FTCA must, as must all claims for VA compensation, be well grounded based on a factual analysis pursuant to Grottveit or, if applicable, Savage, both supra.

To the extent that the appellant here argues that the specifics of his particular settlement establish that his claims are well grounded, the Court is unable to locate in the ROA any copies of the actual settlement signed by him and VA’s representative. The ROA contains only internal VA and intra-governmental correspondence regarding the fact of the settlement (R. at 210-13, 222), including a VA Form 2105, from a VA Deputy Assistant General Counsel to VA’s Director of the Compensation and Pension Service, that states:

9. Remarks: After being admitted to the Allen Park VAMC on October 19,1992, the veteran, while walking to his room, fell and injured his hand and knee. The veteran contends a nurse should have assisted him in ambulating to his room.

R. at 210. The above notation and the other internal VA and intra-governmental correspondence in the record on appeal in no way provide evidence of a nexus between the October 1992 fall at the VAMC and the veteran’s current left-hand and left-knee disabilities. See R. at 210-13, 222. If any other documents regarding the settlement exist that would indicate such a medical nexus, the veteran either did not submit them to the RO or failed to request that they be included in the ROA filed as to this case.

In any event, the appellant’s arguments appear not to be premised on the specific facts of his settlement but, rather, are of a *466more generic nature. Prior section 1151 provided:

Where an individual ... enters into a settlement or compromise under section 2672 or 2677 of title 28, United States Code, by reason of a disability, aggravation, or death treated pursuant to this section as if it were service-connected, then no benefits shall be paid to such individual ... on account of such disability, aggravation, or death ... until the aggregate amount of benefits which would be paid but for this sentence equals the total amount included in such judgment, settlement, or compromise.

38 U.S.C. § 1151; see generally Neal v. Derwinski, 2 Vet.App. 296, 298-99 (1992) (offsetting award of VA benefits by amount of FTCA award); Powers v. United States, 589 F.Supp. 1084, 1109 (D.Conn.1984) (noting that prior section 1151 offset would be made against FTCA award). Although a clear connection between the offset provision in prior section 1151 and future VA awards of benefits based on the same injury is apparent, that connection does not have the effect that the appellant suggests. The purpose of the offset provision appears to have been to prevent the United States from having to “pay twice for the same injury” regardless of its cause. Brooks v. United States, 337 U.S. 49, 53, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) (stating in dictum that “we now see no indication that Congress meant the United States to pay twice for the same injury”); see also H.R.Rep. No. 2123, at 10 (1962), reprinted in 1962 U.S.C.C.A.N. 3263, 3268 (“[i]t is possible today for an injured veteran to secure a judgment under the [FTCA] and thereafter be awarded disability compensation from the Veterans’ Administration for the same injury”). To the extent, then, that a veteran is awarded VA benefits after having received a settlement under the FTCA, the amount of those VA benefits would be offset by the amount of the FTCA settlement. In this case, however, the veteran has not yet been awarded VA benefits and thus the offset provision of prior section ... 1151 has no applicability here. Cf. Powers, 589 F.Supp. at 1088 (recognizing, in terms of award under FTCA, that “further medical benefits which the plaintiff may receive under [VA] regulations at some point in the future” are “prospective” and “speculative” in nature); VA Gen. Coun. Prec. 69-90 (Nov. 25,1996) (“[a]n award of benefits under [prior section] 1151 does not involve a determination of service connection for disability”).

At most, the settlement under the FTCA could be seen as a concession by VA that the October 1992 fall did occur at the VAMG — a matter that we need not decide here — but the appellant has failed to persuade the Court that such a settlement, as a matter of law, satisfies the well-groundedness requirement as to a subsequent claim under prior section 1151 for a current disability claimed to be a residual of the injury involved in the FTCA settlement. Hence, the Court will affirm the Board’s denial as not well grounded of the veteran’s claims for left-hand and left-knee injuries based on his October 1992 fall. See Savage and Grottveit, both supra.

III. Conclusion

Upon consideration of the foregoing analysis, the ROA, and the parties’ briefs, the Court holds that the appellant has not demonstrated that the BVA committed error — in its findings of fact, conclusions of law, procedural processes, or articulation of reasons or bases — that would warrant reversal or remand under prior section 1151, 38 U.S.C. §§ 5107(a), 7104(a), (d)(1), or 7261, or 38 C.F.R. § 3.303(b). Therefore, the Court affirms the January 6, 1998, BVA decision.

AFFIRMED.

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## Jones v. West, 13 Vet. App. 129 (1999) {#8205580}

*13 Vet. App. 129*

_Jones v. West, 13 Vet. App. 129, decided 1999-10-21._

ORDER

PER CURIAM:
On June 24, 1999, the Court issued an order granting the parties’ joint motion to vacate, in part, the decision of the Board of Veterans’ Appeals (Board) and remand the matter for readjudication. On August 11, 1999, the Court received the appellant’s application for an award of fees and other expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.

Accompanying the appellant’s EAJA application was a letter addressed to the Clerk of the Court. In that letter, the appellant explained that (1) he had sent the EAJA application to the Court via Federal Express on July 21, 1999, and (2) it was delivered and signed for by “K. Fields,” an employee of the VA Office of General Counsel. Attached to the letter is the Federal Express delivery notice. The delivery notice shows that the appellant’s EAJA application was addressed to “Clerk of Court, U.S. Court of Appeals for Veteran’s [sic] Claims, 625 Indiana Avenue, Washington, DC 20004.” This address lacks the suite number of the Court. A litigation group of the VA Office of General Counsel is also located at 625 Indiana Avenue, N.W., but at a different suite number. In the right-hand corner of the delivery notice is written “7/22 11:44 K. Fields.”

The “EAJA is a waiver of sovereign immunity, and its jurisdictional provisions are to be strictly construed in the government’s favor.” Nord v. Gober, 10 Vet.App. 442, 443 (1997); see also Bazalo v. West, 150 F.3d 1380, 1383 (Fed.Cir.1998) (“We have unequivocally held that the thirty-day time limit for filing an EAJA application after final disposition of an adversary adjudication is a jurisdictional prerequisite to an award of attorney fees.”). “A party seeking an award of fees and other expenses shall within thirty days of final judgment of the action, submit to the court an application for fees and other expenses.” 28 U.S.C. § 2412(d)(1)(B) (emphasis added); see also U.S. Vet.App. R. 39(a). The Court has defined the term “submit” to mean “received by the Court within [thirty] days of final judgment.” See Nord, 10 Vet.App. at 443 (quoting Grivois v. Brown, 7 Vet.App. 100, 101 (1994)). “The EAJA statute uses neither ‘filed’ nor ‘received’ when discussing EAJA applications.” See id. A “ ‘final judgment’ means a judgment that is final and not appealable.” 28 U.S.C. § 2412(d)(2)(G).

According to Rule 41(b) of the Court’s Rules of Practice and Procedure: “An order on consent dismissing or remanding a case will ... constitute the mandate” of the Court. Therefore, where the Court grants the parties’ joint motion *131for remand, the appellant “has only [thirty] days from the Court’s entry of judgment in which to file his EAJA application.” Casola v. West, No. 98-2179, 1999 WL 399671, at *1 (Vet.App. May 25, 1999) (per curiam order). In Grivois, the Court explained that “[t]he timely submission of an EAJA application is a jurisdictional prerequisite to governmental liability for attorney fees” and that “to timely ‘submit’ an EAJA application, it must be received by the Court within [thirty] days of final judgment.” Grivois, 7 Vet.App. at 101 (citations omitted). This Court may not waive the thirty-day filing requirement. See id.

In this matter, the appellant’s EAJA application was due July 26, 1999. Although he sent his application on July 21, 1999, via Federal Express, the Court did not receive his application until August 11, 1999. Therefore, the appellant’s EAJA application was not submitted within the statutory thirty-day filing period. For that reason, the Court cannot consider the appellant’s application for fees and expenses. See Nord and Grivois, both supra.

The appellant argues that the Court should accept his EAJA application because it was not received by the Court due to administrative oversight on the part of the VA Office of General Counsel, which allegedly did not notice that the package was addressed to the Clerk of the Court. However, even assuming equitable tolling of the filing period were permissible in this matter, see e.g., Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998), it would not be applicable in this case. Here, the appellant entrusted Federal Express with the delivery of its EAJA application, but did not provide his agent with a complete address. The suite number of the Court was missing. The primary administrative error in this matter was committed by the appellant himself, and the appellant is responsible for the error committed by his agent. Cf. id. at 1365 (stating that equitable tolling was not available for garden variety claims of excusable neglect).

Based on the foregoing, it is

ORDERED that the appellant’s EAJA application is DISMISSED for lack of jurisdiction.