noting that, in the context of service-connected disability compensation, "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"
How later courts described this case
- noting that, in the context of service-connected disability compensation, "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"
- holding that the federal rules of hearsay were “not applicable applicable to the BVA decision-making process”
- holding that the hearsay rule does not apply to the VA claims adjudication process
- hearsay not excluded from VA claims adjudications by FRE
Written by the judges who cited it.
The opinion
FARLEY, Judge,
dissenting:
Although I agree with much of the majority opinion, particularly Part II. C. concerning hearsay evidence, I am compelled to dissent from Parts II. A. and B. and the majority’s disposition. I would remand this matter for further proceedings.
In Part II. A., the majority holds that “[tjhe VA examination findings provide a plausible basis for the Board’s denial of secondary service connection.” Ante at 502. In Part II. B., the majority faults appellant for having “presented no persuasive reason to believe that Dr. Wongsurawat had an insufficient basis upon which to form an opinion.” Id. In both instances, the “basis” to which the majority is referring is Dr. Goldstein’s parenthetical hearsay report that “[ijt was [Dr. Wongsurawat’s] feeling that if there were no kidney manifestations shown by the laboratory tests and the KUB that it was unlikely that the diabetes was the cause of the hypertension.” R. at 52. I simply do not know what that sentence means. (I should also note that I am not as confident as the majority that a “KUB” is a type of x-ray and the record certainly does not further my understanding.)
One possible interpretation is that “laboratory tests and the KUB” should be performed and, if they are negative for kidney manifestations, it would be unlikely that the hypertension resulted from the diabetes. If indeed that is what Dr. Wongsurawat intended, there is no indication that such tests (assuming that a “KUB” is a test) were ever performed and I would remand because of a violation of the statutory duty to assist under 38 U.S.C. § 5107 (a). On the other hand, Dr. Wongsurawat’s “feeling” might have been based on the results of tests which were performed and then reviewed by or reported to him; however, no such test results appear in the record on appeal. In that event, I would find it difficult to conclude that there was a “plausible basis in the record” for either his conclusion or that of the BVA. Nor could I deem the BVA’s statement of reasons or bases required by 38 U.S.C. § 7104 (d)(1) to be adequate.
*507 Based upon the state of the record before me, I could only reach a determination in this matter by engaging in speculation as to what Dr. Goldstein actually meant, and I have no reason to conclude that the BVA was doing anything else when it denied secondary service connection for hypertension. Because I find that this record is neither “ ‘clear enough to permit effective judicial review,’ nor in compliance with statutory requirements,” I would remand for further adjudication. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (quoting International Longshoremen’s Ass’n v. National Mediation Bd., 870 F.2d 733, 735 (D.C.Cir.1989)).