# Jones v. West

> United States Court of Appeals for Veterans Claims · May 11, 1999 · 12 Vet. App. 383

URL: https://www.frixlaw.com/law-library/cases/8167569

## Case

- **Full name:** Stephen B. JONES v. Togo D. WEST, Jr., Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** May 11, 1999
- **Citations:** 12 Vet. App. 383; 1999 U.S. Vet. App. LEXIS 311; 1999 WL 292658
- **Precedential status:** Published
- **Opinion:** Dissent by Kramer
- **Judges:** Greene, Holdaway, Kramer
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167569

## How later opinions describe it (automated extraction)

- holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue

## Opinion text

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.) *387 at 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 *388 cause 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167569. Public record. Not legal advice.