Kelly v. Brown

STEINBERG, Judge,

concurring:

I join in the Court’s conclusion that the case should be remanded for further adjudication because of an inadequate statement of reasons or bases under 38 U.S.C. § 7104 (d)(1) in the Board of Veterans’ Appeals (Board) decision, and for fulfillment of the duty to assist under 38 U.S.C. 5107(a). I write separately to clarify the route by which I reach that conclusion.

Under the Court’s binding precedents, a claim must be well grounded before the reasons-or-bases requirement attaches to the Board’s decision on the merits of the claim and before the Secretary’s duty to assist *475 arises. See Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992) (Secretary’s motion to remand Board decision due to inadequate statement of reasons or bases denied because claim was not well grounded); Grivois v. Brown, 6 Vet.App. 136, 140 (1994) (“no duty to assist arises absent a well-grounded claim”); see also Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (when Board finds claim not well grounded, Board must provide adequate statement of reasons or bases for that non-merits determination).

Here, the veteran seeks entitlement to service connection for hearing loss and tinnitus. Service connection for disability compensation purposes will be awarded to a veteran who served on active duty during a period of war or during a post-December 31, 1946, peacetime period, for any disease or injury that was incurred in or aggravated by a veteran’s active service or for certain diseases initially manifested to a degree of 10% or more within specified periods of one year or more after the date of separation from service. See 38 U.S.C. §§ 1110 , 1112(a), 1131, 1137; 38 C.F.R. §§ 3.303 (a), 3.306, 3.307 (1994). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during the veteran’s service. See 38 C.F.R. § 3.303 (d) (1994); Combee v. Brown, 34 F.3d 1039, 1042 (Fed.Cir.1994) (“[pjroof of direct service connection ... entails proof that exposure during service caused the malady that appears many years later”); Cosman v. Principo, 3 Vet.App. 503, 505 (1992) (“even though a veteran may not have had a particular condition diagnosed in service, or for many years afterwards, service connection can still be established”); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). A claim for service connection of a disability must be accompanied by evidence which establishes that the claimant currently has the disability. See Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent “proof of a present disability there can be no valid claim”).

“[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); Murphy, supra. The Court has held: “[T]he [VA] benefits system requires more than just an allegation; a claimant must submit supporting evidence.” Tirpak, 2 Vet.App. at 611 . Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself. See Heuer v. Brown, 7 Vet.App. 379, 383-84 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)). A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under 38 U.S.C. § 7261 (a)(1). See Grivois and Grottveit , both supra.

In the instant case, the Board found the veteran’s claims well grounded and then proceeded to adjudicate their merits. Although the Board’s conclusions that the claims were well grounded is purely conclusory, devoid of any supporting analysis, those conclusions are not erroneous. As to the hearing-loss claim, there is sufficient medical evidence of a current disability within the meaning of the applicable regulation, 38 C.F.R. § 3.385 , in Dr. Lang’s “speech recognition” score of 88% on the December 1991 audiogram. R. at 58; see Rabideau, supra. This score could plausibly refer to the “Maryland CNC Test” used as a reference in the regulation (“when speech recognition scores using the Maryland CNC Test are less than 94 percent”), 59 Fed.Reg. 60,560. Further, there is sufficient medical evidence of a nexus between current hearing loss and service in both Dr. Laugh-lin’s and Dr. Lang’s medical opinions attributing hearing loss to conditions in military service. R. at 40, 57. Accordingly, the hearing-loss claim was well grounded. See Heuer, Grottveit, Tirpak, and Murphy, all supra.

As to the tinnitus claim, whether it is well grounded is less clear because the record does not include a clear diagnosis of current tinnitus. However, because Dr. Lang’s re *476 port could just as reasonably be read as making such a diagnosis or as merely reporting history and complaints provided the veteran and because the Board did not adequately address that matter, the Board did not err in finding that the tinnitus claim was well grounded. See Grivois, 6 Vet.App. at 140 (Court assumes claim is well grounded because of ambiguous statement in physician’s opinion, and remands claim because of reasons-or-bases deficiency on merits denial).

For the foregoing reasons, I conclude that the questions of whether the Board’s July 1992 decision contained an adequate statement of reasons or bases and a duty-to-assist violation were properly addressed by the Court. In Grivois, 6 Vet.App. at 139 , the Court scolded the Secretary for proceeding to assist a claimant in developing his claims without paying sufficient heed to the determination as to whether the claims brought met the statutory requirements, as construed by the Court’s precedents, to be well grounded. “Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones.” Ibid. So concerned was the Court about this matter that it added: “[I]f the Secretary, as a matter of policy, volunteers assistance to establish well groundedness, grave questions of due process can arise if there is apparent disparate treatment between claimants in this regard.” Grivois, 6 Vet.App. at 140 . I believe the Court should similarly address the threshold question of whether the claims here are well grounded before finding the errors noted above.