Rucker v. Brown

STEINBERG, Judge,

concurring in part and dissenting in part:

I concur in parts I. and II.A. of the opinion, in the result reached by the Court in part II.B. that the veteran’s service-connection claim for non-ionizing-radiation-induced cancers is well grounded, and in the remand ordered in part III. However, for the reasons that follow, I do not believe that the majority articulates a solid basis for the well-groundedness conclusion or follows the correct path to reach it. Additionally, the part II.B. Federal Rules of Evidence (FRE) and Daubert case 1 discussions are inapposite to the process of BVA claims adjudication and the caselaw of this Court.

I. Well-Grounded Claim

Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[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.” The Court has defined a well-grounded claim as follows: “[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). A well-grounded service-connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and a current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent “proof of a present disability[,] there can be no valid claim”). 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 v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit, supra.

In the case at hand, the majority strays from this well-established path when it explains: “Before today, the Court has not addressed the threshold question of what evidence will suffice to well ground a claim for service connection based on non-ionizing radiation exposure.” Ante at 72. However, the caselaw cited above supplies a general, three-requirement standard by which the well groundedness of a claim is to be judged; generally, and barring any presumptions that may relax these standards (such as for ionizing-radiation exposure, for example 2 ), to well ground a claim a veteran needs medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation, and medical evidence connecting the currently diagnosed condition to a condition arising or event occurring in service. Because there are no presumptions to apply in the case of exposure to non-ionizing radiation, I would make plain — as the majority’s FRE and Daubert excursion has beclouded — that this veteran’s *76 claim is subject to the same well-groundedness requirements as any other veteran’s claim and that — again, absent any applicable presumptions — the height of the well-groundedness hurdle goes neither up nor down based upon the asserted etiology of a veteran’s condition.

In this case, Dr. Young’s statements (R. at 1212, 1268), as cited by the majority, ante at 74, supply medical evidence of multiple carcinomas, thus satisfying the first of the wellgroundedness requirements (current disability). Moreover, Dr. Young’s testimony, again, as correctly cited by the majority, ibid., links these carcinomas to the veteran’s service (“I think it is quite reasonable to assume that the [radiation] exposure [the veteran] had in the Service is the cause of these multiple carcinomas____ I think [ ] it highly likely this is the cause.” (R. at 1268)), thus satisfying the third of the well-groundedness requirements (nexus), if there is plausible evidence that the veteran was exposed to radiation in service.

But I believe that the majority confuses the analysis by collapsing the second and third requirements when, based upon Dr. Young’s statement, the veteran’s documented service as a radar operator, and the treatises that the veteran submitted, the opinion presumes that Dr. Young’s statement constitutes plausible evidence of exposure to nonionizing (microwave) radiation so as to satisfy the second well-groundedness requirement (in-service disease, injury, or event). In my view, it is necessary to evaluate Dr. Young’s two statements more precisely and discretely. I find that Dr. Young’s first statement fails to provide evidence of in-service exposure because it is based entirely upon history given by the veteran; Dr. Young writes: “He [the veteran] mentions that he did have some radiation exposure when he was in the Service many years ago and this would certainly be [a] rational explanation for the occurrence of four different types of carcinoma in one individual over a short period of time.” R. at 1212. “‘Evidence which is simply information recorded by a medical examiner, unenhaneed by any additional medical comment by that examiner,’ does not satisfy [the] ‘competent medical evidence’ requirement set forth in Grottveit, [supra ].” Dolan v. Brown, 9 Vet.App. 358, 363 (1996) (citing LeShore v. Brown, 8 Vet.App. 406, 409 (1995)).

However, I believe that plausible evidence of exposure is present in the record on appeal in Dr. Young’s second statement, where he wrote: “Mr. Rucker apparently did have a significant radiation exposure when he was in the Service many years ago; I believe in conjunction with radar operation.” R. at 1268. This statement is more than the “bare transcription of a lay history” that the Court found insufficient in LeShore, supra; although it uses the word “apparently”, this statement is reasonably read as a competent medical professional’s articulation of his opinion that the veteran was exposed to non-ionizing radiation in service and (in conjunction with the rest of the statement, as quoted above) that that exposure caused the veteran’s present carcinomas. Although this evidence is far from determinative, “the amount of evidence sufficient to make a claim well grounded differs from the amount sufficient for an award of service connection.” Meyer v. Brown, 9 Vet.App. 425, 432 (1996). “[T]o be well grounded a claim need not be supported by evidence sufficient for the claim to be granted. Rather, the law establishes only a preliminary threshold of plausibility”. Robinette v. Brown, 8 Vet.App. 69, 76 (1995); see also Alemany v. Brown, 9 Vet.App. 518, 519 (1996) (holding medical evidence as to nexus to service expressed as “possible” suffices for that aspect of a well-grounded-claim requirements); Molloy v. Brown, 9 Vet.App. 513, 516 (1996) (citing Lathan v. Brown, 7 Vet.App. 359, 366 (1995) (stressing that medical opinions need not “be expressed in terms of certainty in order to serve as the basis for a well-grounded claim”)).

Thus, based upon the well-understood process set forth in our caselaw and identified above, I would find this claim to be well grounded, without regard to the articles on radar and microwave radiation, because Dr. Young’s statements as to current diagnosis, exposure to non-ionizing radiation in service, and nexus to non-ionizing radiation exposure satisfy directly all three prongs of the Caluza test. As to one of the articles cited by the *77 majority, Effects Upon Health of Occupational Exposure to Microwave Radiation (Radar), that article asserts that radar operators in the Korean conflict could be expected to have some minimal exposure to microwave radiation. R. at 1221 (comparing those veterans “minimally” exposed as radar operators to those “maximally” exposed as radar repairpersons). That medical treatise supplies no direct in-service incurrence evidence here because it is concerned only with the exposure of Korean-eonflict veterans, whereas the veteran served only prior thereto. This treatise could, however, be viewed by the Board on remand as buttressing Dr. Young’s opinion.

II. Weight, Credibility, the Federal Rules of Evidence, and Daubert

Most of the majority opinion, including its departure from the simple process of analyzing well groundedness outlined above, appears to derive from the Board’s error in concluding that Dr. Young did not present any “special qualifications”. R. at 6. As the majority makes plain, 3 the Board is not free to judge weight or credibility at the wellgroundedness stage, ante at 72, 74, except to the extent that it may determine certain evidence to be inherently incredible or beyond the competence of the witness. See Justus v. Principi, 3 Vet.App. 510, 513 (1992); King v. Brown, 5 Vet.App. 19, 21 (1993); Layno v. Brown, 6 Vet.App. 465, 469 (1994). Because the Board did not find Dr. Young’s testimony incompetent or inherently incredible — but nevertheless apparently dismissed his testimony 4 — the BVA’s error is clear, and the majority’s FRE and Daubert analysis is unnecessary and extraneous.

Moreover, the majority opinion appears to add an entirely unnecessary adjudication hurdle when it concocts a new requirement to be applied where a medical report by a physician, who does not appear on the face of that report to be an expert in the particular field (here non-ionizing radiation), articulates a “proposed medical theory [with] scientific underpinnings”. Ante at 72. In such situations the majority appears to require evidence that the scientific theory given by the licensed medical professional is not inherently incredible and then — not implausibly — relies upon the cited scientific articles as showing that the proposed connection between non-ionizing radiation and cancer is not “inherently incredible”. Ante at 73. Instead, I would hold — and I believe our jurisprudence currently provides — that medical evidence is presumed credible, absent any indication that medical evidence is inherently incredible (that is, a statement that on its face is so far beyond the pale of reason that reasonable minds could not but agree that it is incredible) or beyond the competence of the witness (that is, testimony on a subject about which the witness has no personal knowledge or expertise whatsoever). Nothing more — or less — should be required as to medical evidence of nexus in order to well ground the claim. I see no basis for injecting the threshold complication added by the majority, that a claimant must point to evidence of a negative — lack of inherent incredibility— merely because a scientific theory is new and proffered by a physician rather than an “expert”.

In extrapolating based upon Daubert, the majority misappropriates a decision that dealt exclusively with the screening function of trial judges in admitting or excluding expert testimony as outlined by FRE Rule 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 , 113 S.Ct. 2786, 2794-95 , 125 L.Ed.2d 469 (1993) (“under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable”). In the non-adversarial jurisprudence of veterans’ claims, a test for screening out evidence has very little place. See 38 C.F.R. § 20.700 (c) *78 (1996); Robinette, 8 Vet.App. at 75 (“[i]t is well established that the VA adjudication process is a nonadversarial one”) (citing Flynn v. Brown, 6 Vet.App. 500 (1994)); id. at 75-77 (double hearsay evidence not excluded from VA claims adjudication process) (citing Flynn, 6 Vet.App. at 504 ); Flynn, supra (hearsay not excluded from VA claims adjudications by FRE); Layno, supra (distinguishing competency from weight and credibility, and noting that only competency involves a question of admissibility).

. Moreover, by invoking Daubert to suggest that the scientific underpinnings of a medical opinion are subject to analysis by the Board at the threshold stage of deciding whether a claim is well grounded, the majority appears to make an entirely new distinction between medical evidence and expert medical evidence, or, perhaps, between medical evidence based upon long-accepted scientific truths and medical evidence based upon novel scientific theories. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (distinguishing “lay” and “medical” testimony for purposes of supplying a medical opinion and suggesting that medical evidence is itself “expert” testimony as compared to that given by lay, nonmedically-trained witnesses). I can see no justification in our prior jurisprudence for distinguishing, for well-groundedness purposes, between the medical opinion of, for instance, a general practitioner and that of a nominal “expert” in a field: At the wellgroundedness stage, one medical opinion of present disability, etiology, or nexus — presumed credible (that is, not, on its face, being inherently incredible) — is as good as any other. See Goss v. Brown, 9 Vet.App. 109, 114-15 (1996) (accepting a nurse’s statement on equal terms with a doctor’s for the purpose of satisfying the well-grounded claim requirement).

In my view, the Daubert criteria have no place at the well-groundedness stage where all evidence not, on its face, inherently incredible or beyond the competence of the witness should be presumed credible. In short, at this threshold stage, the Board generally ought not to weigh the evidence, consider the negative evidence, or perform any screening function whatsoever: the lodestar of a well-groundedness determination as to a service-connection claim has been and continues to be whether the veteran has presented a plausible claim based upon medical and other evidence presumed to be credible — a claim “capable of substantiation”, Murphy, supra, in conjunction with VA’s carrying out of its 38 U.S.C. § 5107 (a) duty to assist. I would hold that a claimed medical etiology, no matter its divergence from the rank and file of VA claims as to such etiology, is not on its face inherently incredible so long as it is supported by medical evidence from a licensed health professional, as is this claim. See Goss, supra. Analysis of the underlying scientific validity of the medical opinion involved should be a matter purely for the merits-determination stage after a claim has been found to be well grounded.

III. Evaluating Medical Evidence on Remand

The majority appears to be outlining in the last paragraph of part II.B. the ground rules for the BVA to follow in evaluating the medical evidence in the merits-adjudication stage on remand. Finding that Dr. Young’s medical opinion is plausible as to a nexus between the veteran’s carcinomas and his possible exposure to non-ionizing radiation while a radar operator during service, the Court then appears to be requiring that the Board cite to other competent medical evidence if it does not accept Dr. Young’s medical opinion. 5 Although reliance on contrary medical evidence of record is one basis — perhaps the most frequent one — for discrediting a claimant’s medical evidence, I do not believe it is the only way the Board can do so. Rather, I believe that the Board, as long as it presents a full statement of reasons or bases for doing so, should be able, at the merits stage, to discount medical evidence when it finds, for example, that the source has minimal expertise, has based his or her opinion on questionable science, has articulated an inade *79 quate reasoning process (or no reasoning), or has used the wrong facts as the basis for his or her medical opinion. See Hatlestad v. Derwinski, 1 Vet.App. 164, 169, 170 (1991) (remanding for failure to provide an adequate statement of reasons or bases where “the decision [] includes neither an analysis of ‘the credibility or probative value of the evidence submitted by or on behalf of the veteran in support of his claim ...’ (Gilbert, 1 Vet.App. at 59)”; Board must make “express credibility determination regarding ... testimony”); Justus, supra (holding, in the case of new and material evidence, that “[i]n the adjudication that follows the reopening, the Board having accepted provisionally for reopening purposes the credibility of the new evidence, then must determine, as a question of fact, both the weight and credibility of the new evidence ... ”).

IV. Miscellaneous

Finally, I am unable to join in the concluding paragraph of the opinion. I do not believe that differentials in the age of the veteran or the particular war/conflict or capacity in which he or she served either increase or decrease the Board’s adjudicatory responsibility to be careful, thorough, and fair.

V. Conclusion

For the above reasons, I am unable to join in all parts of the Court’s opinion.

. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).

. See 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d) (1996); see also, as to Vietnam veterans exposed to certain herbicides in service, 38 U.S.C. § 1116 (a)(1)(A), (2); 38 C.F.R. § 3.307 (a)(6)(ii) (1996); as to certain former prisoners of war, 38 U.S.C. § 1112 (b); 38 C.F.R. § 3.307 (a)(5) (1996).

. The majority concludes: "In the instant case, the BVA committed error in assessing the credibility and weight of the evidence prior to determining whether the claim was well grounded”; "[t]he Board is not free to assess the weight proffered evidence will be accorded when determining whether a claim is well grounded”, ante at 72, 74.

. "Dr. Young does not present any special qualifications or expertise in the field of radiation exposure; moreover, his opinion appears to be based upon nothing more than conversations with the appellant — not upon a review of the relevant medical and military records.” R. at 6.

. The majority opinion states: "If the Board consciously chose not to address the substance of a plausible medical conclusion, it surely would want to cite to competent evidence of record to support its implicit rejection of that conclusion.” Ante at 74. I leave it to those better trained in mental gymnastics to parse the meaning of this sentence.