NOTE: This order is nonprecedential

United States Court of Appeals
for the Federal Circuit

MATTIE R. STROUD,
Claimant-Appellant,

V.

ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Responclent-Appellee.

2011-7122

Appea] from the United States Court of Appeals for
Veterans Claims in case no. 09-3639, Chief Judge Bruce
E. Kasold.

ON MOTION

Before LOURIE, SCHALL, and DYK, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves without op-
position to waive the requirements of Fed. Cir. R. 27(f),
and to remand for further proceedings.

STROUD V. DVA 2

The claimant-appellant, Mattie R. Stroud’s husband,
Thorton Stroud, died in April 2003. He served on active
duty in the Navy from April 1965 to December 1966, and
had pending before the Department of Veterans Affairs
(“VA") two claims for entitlement to service-connected
disability benefits, one claim for a lung disorder and the
other for a low back disorder, at the time of his death.

Following her husband’s death, Mrs. Stroud filed with
the VA regional office (RO) a claim for accrued benefits
pursuant to 38 U.S.C. § 5121, which authorizes payment
of benefits to a veteran’s surviving spouse if the veteran
had a claim pending at the time of his death for such
benefits or is entitled to them under an existing rating or
decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed.
Cir. 1998). She submitted lay statements from various
family members that Mr. Stroud regarding his claims.
The RO rejected those claims on the grounds_that there
was no medical evidence demonstrating a sufficient link
between l\/Ir. Stroud’s disorders and his service.

The Board of Veterans’ Appeals upheld those rulings.
The Board concluded with regard to the back disorder
accrued benefits claim that "lay persons, such as the
Veteran’s wife and daughter, are not qualified to offer an
opinion that requires medical knowledge, such as a diag-
nosis or an opinion as to the cause of a disability." The
Board similarly rejected the lay statements made in
reference to the lung disorder claim, stating that although
numerous lay statements were submitted to explain that
the veteran’s lung cancer was related to his collapsed lung
that he experienced shortly after service, there was no
competent evidence demonstrating a sufficient nexus
between service and the conditions. The Court of Appeals
for Veterans Claims affirmed.

In his motion, the Secretary concedes that the Board
imposed an incorrect standard in reviewing the evidence
in the record. We agree. In Jandreau v. Nicholson, 492

 

3 STROUD V. DVA

F.3d 13'72, 1376-77 (Fed. Cir. 2007), this court rejected
the view that "competent medical evidence is required . . .
[when] the determinative issue involves either medical
etiology or a medical diagnosis.” Instead, this court held
that “lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson
is competent to identify a medical condition, (2) the lay-
person is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time
supports a later diagnosis by a medical professional." Id.
at 1377.

The court agrees with the Secretary that the Board’s
opinion, in effect, held that a layperson can never provide
competent evidence of any question of etiology or diagno-
sis, which contravenes our holding in Jondreau. The
Board thus erred as a matter of law by disregarding the
possibility that, in some cases, lay evidence will be compe-
tent and credible evidence of etiology. On rem'and, a two
step analysis of Mrs. Stroud’s accrued benefits claims is
required. The Board must first determine the claimed
conditions are the type of injuries for which lay evidence
is competent evidence. If so, the Board must weigh that
evidence with the other evidence of record.

Thus, we grant the Secretary’s motion to remand for
purposes of having the VA conduct further proceedings.
The court notes that in his motion the Secretary states
that Mrs. Stroud also raised a duty-to-assist argument,
and that on remand, those arguments may again be
raised below by the claimant-appel1ant.

Accordingly,
IT Is ORDEREI) THAT:

(1) The Secretary’s motion is granted to the extent
that we vacate and remand to the Court of Appeals for
Veterans Claims so that it may remand to the Board for
further consideration.

 

STROUD V. DVA 4

(2) Each side shall bear its own costs.
For The Court

 2 0  /s/ Jan Horbaly
Date J an Horbaly
Clerk

cc: Mattie R. Stroud
Richard P. Schroeder, Esq.

s20

issUED As A MANDATE: JU'- 2 9 2972

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JU|_ 20 2012

JAN HBBBAL¥
C|.ERK

