Error: Bad annotation destination
 United States Court of Appeals for the Federal Circuit

                                       05-7174



                                DONALD BUCHANAN,

                                                            Claimant-Appellant,
                                           v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.



      Michael J. Mooney, of Cincinnati, Ohio, argued for claimant-appellant.

       Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Kathryn A. Bleecker, Assistant Director. Of counsel on
the brief were David J. Barrans, Deputy Assistant General Counsel, and Martin J.
Sendek, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Retired Chief Judge Donald L. Ivers
 United States Court of Appeals for the Federal Circuit
                                         05-7174


                                 DONALD BUCHANAN,

                                                      Claimant-Appellant,

                                            v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.

                           __________________________

                           DECIDED: June 14, 2006
                           __________________________

Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST,
Circuit Judge.

PROST, Circuit Judge.

      Donald Buchanan appeals from the decision of the Court of Appeals for Veterans

Claims (the “Veterans Court”) affirming a decision of the Board of Veterans’ Appeals

(the “Board”) which denied Mr. Buchanan’s claim for service connection for a psychiatric

disorder. Buchanan v. Nicholson, No. 02-1524 (Vet. App. Feb. 16, 2005). Because the

Veterans Court accepted the Board’s legally erroneous interpretation of the statutory

and regulatory provisions pertaining to a veteran’s ability to prove service connection

through competent lay evidence, we vacate the Veterans Court decision and remand for

reconsideration of all of the evidence of record, including the lay evidence, under the

correct statutory and regulatory construction.

                                   I. BACKGROUND

      Mr. Buchanan served on active duty in the United States Army from January
1973 to December 1975 and also from May 1980 to June 1982. He was honorably

discharged following his first period of service, but received an other than honorable

discharge after his second.     In 1986, he filed a claim for service connection for a

psychiatric disorder.   The Board denied his claim in 1987, finding that his service

medical records were negative for any manifestations of psychiatric problems and that a

psychiatric disability was not demonstrated until 1978, nearly three years after his first

period of service had ended. Again, in June 1992, a Department of Veterans Affairs

(“DVA”) regional office (“RO”) denied service connection for a nervous condition. Since

that time, Mr. Buchanan’s attempts to establish service connection have resulted in his

claim being sent back and forth between the RO and the Board. Essentially, each

remand or reopening of his claim by the Board was accompanied by a DVA medical

examination. Thus, by the time the Board rendered its September 5, 2002 decision,

which is the subject of this appeal, Mr. Buchanan had undergone three DVA medical

examinations over a period of five years.

       The first of such examinations occurred in July 1997 and resulted in a diagnosis

of “[s]chizophrenia, chronic paranoid type, severe.” (R. at 225.) The opinion of the

examiner was that “[i]t appears that this disorder first began while he was in the service,

although there is no record in his C-file which would substantiate his claim of receiving

counsel to seek psychiatric treatment while in the service.” (Id.)

       The second DVA examination occurred in November 1999 and also reflects a

diagnosis of “[s]chizophrenia, paranoid type, chronic, severe.” (Appellant App. 57). The

examiner summarized his findings and concluded by stating: “While it is at least as

likely as not that the veteran’s symptoms predate his first documented treatment in 1978




05-7174                                      2
for psychosis, it is not possible without prior records to determine when these symptoms

first occurred.” (Appellant App. 57-58).

       The third DVA examination in March 2002 resulted in a similar diagnosis,

“[s]chizophrenia, paranoid type, chronic.” (Appellant App. 51.) This examiner likewise

summarized her findings, in pertinent part, as follows:

       Review of the Veteran’s C-file revealed numerous layperson affidavits
       attesting to a change in the veteran’s interpersonal style and presentation
       while the veteran was in the military between 1973 and 1975, and after his
       discharge from the military. However, there is no medical documentation
       within the veteran’s C-file to substantiate the presence of any psychotic
       symptoms or treatment for psychiatric conditions while the veteran was on
       active duty . . . . Thus, given the absence of any medical documentation
       from the veteran’s period of active duty service from January 1973 to
       December 1975, and given the absence of any medical documentation of
       psychiatric symptoms or treatment within the one-year presumptive
       period, it is this clinician’s clinical opinion that the veteran’s onset of
       symptoms of schizophrenia did not occur during his first period of active
       service or during the one year presumptive period.

(Appellant App. 52.)

       In support of his claim, Mr. Buchanan submitted several affidavits from lay

witnesses, including his relatives, acquaintances, and a sergeant who led the unit to

which Mr. Buchanan was assigned in 1973, describing their perceptions of the onset of

his symptoms while in service or soon thereafter. Additionally, he submitted an August

2001 medical opinion from Dr. Kenneth Manges, who opined that Mr. Buchanan’s signs

and symptoms of paranoid schizophrenia first appeared in service and that his paranoid

schizophrenia manifested itself to a compensable degree during the first year after his

discharge from his first period of service. (R. at 448-63.)

       In considering whether Mr. Buchanan established service connection, the Board

focused on whether the evidence linked the veteran’s psychiatric disability to a disease




05-7174                                      3
or injury that was incurred in, or was aggravated by, service from January 1973 to

December 1975 or whether the evidence demonstrated the presence of that disability to

a degree of ten percent within the first post-service year such that service connection

would be presumed pursuant to 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137. The

Board recognized that Mr. Buchanan’s statements and testimony along with the lay

statements indicate that his psychiatric disability began during his first period of service

because that is when his behavior changed. The Board also noted that what it called

the “objective medical evidence” did not corroborate the presence of psychiatric

problems in service or within the first year after service except by medical history

reported by Mr. Buchanan. The Board then stated: “Recollections of medical problems

some 20 years after the veteran’s separation from service have slight probative value

and lack credibility absent confirmatory clinical records to substantiate such

recollections.” (Appellant App. 21.)

       After discussing the four medical opinions, three from the DVA examiners and

one from Dr. Manges, the Board found the opinion of the examiner who conducted the

third DVA examination to be the most persuasive “because it relie[d] on the objective

medical documents in the record rather that [sic] the slight probative recollections of the

veteran, his relatives, acquaintances, and a service comrade.” (Appellant App. 22.)

The Board indicated that it did not find Dr. Manges’s opinion persuasive because it

relied on the recollections expressed in the lay statements, and that the other two DVA

examiner opinions did not “unequivocally state that the veteran’s psychiatric disability

began in service or within one year of his separation from service in December 1975.”




05-7174                                      4
(Id.) Thus, the Board found that the preponderance of the evidence was against Mr.

Buchanan’s claim for service connection for a psychiatric disability and denied his claim.

       On appeal, the Veterans Court found that the Board’s decision was not clearly

erroneous and that it was supported by an adequate statement of reasons or bases.

Specifically, the court noted that the Board considered the lay and medical evidence of

record and concluded that service connection was not warranted because the credible

evidence of record did not show the presence of a psychiatric disorder during service or

that such disability had manifested to a compensable degree during the applicable

presumptive period. The court noted that it was not error for the Board to favor the

opinion of one competent medical expert over another when the Board provides an

adequate statement of its reasons and bases. Further, the court did not find error in the

Board’s determination that the lay evidence lacked credibility. Finally, the court rejected

Mr. Buchanan’s request for another medical examination because it found that the third

DVA examiner’s opinion was sufficiently detailed and that it thoroughly reviewed the

available medical records. Thus, the court affirmed the decision of the Board denying

Mr. Buchanan’s claim for service connection.

      Mr. Buchanan timely appealed to this court. We have jurisdiction pursuant to 38

U.S.C. § 7292.

                                    II. DISCUSSION

                                 A. Standard of Review

      Pursuant to 38 U.S.C. § 7292(a), any party to the case may obtain review of a

Veterans Court’s decision upon a rule of law or the validity or interpretation of any

statute or regulation relied upon by the Veterans Court in making its decision. Under 38




05-7174                                     5
U.S.C. § 7292(c), this court has exclusive jurisdiction to “review and decide any

challenge to the validity of any statute or regulation or any interpretation thereof brought

under this section, and to interpret constitutional and statutory provisions, to the extent

presented and necessary to a decision.”

       This court reviews decisions by the Veterans Court deferentially.          Under 38

U.S.C. § 7292(d)(1), we must affirm a Veterans Court decision unless it is “(A) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary

to constitutional right, power, privilege, or immunity; (C) in excess of statutory

jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without

observance of procedure required by law.” 38 U.S.C. § 7292(d)(1) (2000). Except for

constitutional issues, we may not review any “challenge to a factual determination” or

any “challenge to a law or regulation as applied to the facts of a particular case.” 38

U.S.C. § 7292(d)(2) (2000).

       This court reviews legal determinations of the Veterans Court under a de novo

standard. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). In doing so, this

court may “affirm or, if the decision of the Court of Appeals for Veterans Claims is not in

accordance with law, . . . modify or reverse the decision of the Court of Appeals for

Veterans Claims or . . . remand the matter, as appropriate.” 38 U.S.C. § 7292(e)(1)

(2000).

                                        B. Analysis

       On appeal, Mr. Buchanan asserts that the Veterans Court committed legal error

by improperly interpreting 38 U.S.C. §§ 1154(a), 5107(b), 38 C.F.R. §§ 3.303(a), (b),

and 3.307(b) to require that lay evidence of medical symptoms be accompanied by




05-7174                                      6
contemporaneous medical records in order to support an award of service-connected

benefits. Specifically, he argues that the Veterans Court erred because it accepted

certain statements by the Board that applied the legally erroneous interpretation

requiring contemporaneous medical records.

       The Secretary of Veterans Affairs (the “Secretary”) essentially asserts two

arguments in response. First, the Secretary argues that we lack jurisdiction to review a

finding by the Veterans Court that the evidence Mr. Buchanan submitted was not

sufficient to support his claim for service connection and that the determination of the

Board denying his claim was not clearly erroneous. Second, the Secretary asserts that

the Veterans Court’s decision cannot be faulted because the court recognized that the

Board analyzed the lay and medical evidence and determined that credible evidence did

not support Mr. Buchanan’s claim for service connection. In this context, the Secretary

argues that the Board did not hold as a matter of law that lay statements are inadequate

in the absence of corroborating clinical records, and thus that the Veterans Court

decision did not implicitly endorse the allegedly erroneous interpretation argued by Mr.

Buchanan.

       In this case, Mr. Buchanan challenges the Veterans Court’s endorsement of the

Board’s legal interpretation of the relevant statutory and regulatory provisions pertaining

to the types of evidence which may support a claim for benefits.          Contrary to the

Secretary’s assertion, Mr. Buchanan is not challenging the application of law to the

particular facts of his case, nor asking us to re-weigh the relevant facts. Thus, we have

jurisdiction under 38 U.S.C. § 7292(c) to review the Veterans Court’s interpretation of

those provisions.




05-7174                                     7
       Pursuant to 38 U.S.C. § 1154(a), the Secretary was required to include, in

regulations pertaining to service connection, “additional provisions in effect requiring

that in each case where a veteran is seeking service-connection for any disability due

consideration shall be given to . . . all pertinent medical and lay evidence . . . .”

(emphasis added). In addition, 38 U.S.C. § 5107(b) provides that

       [t]he Secretary shall consider all information and lay and medical evidence
       of record in a case before the Secretary with respect to benefits under
       laws administered by the Secretary. When there is an approximate
       balance of positive and negative evidence regarding any issue material to
       the determination of a matter, the Secretary shall give the benefit of the
       doubt to the claimant.

(Emphases added.) In accordance with 38 C.F.R. § 3.307(b), “[t]he factual basis [for

establishing a chronic disease] may be established by medical evidence, competent lay

evidence or both. . . . Lay evidence should describe the material and relevant facts as

to the veteran’s disability observed within such period, not merely conclusions based

upon opinion.” (Emphasis added.) Finally, 38 C.F.R. § 3.303(a) provides that each

disabling condition for which a veteran seeks service connection, “must be considered

on the basis of . . . all pertinent medical and lay evidence.” (Emphasis added.)

       As these provisions make clear, lay evidence is one type of evidence that must

be considered, if submitted, when a veteran’s claim seeks disability benefits. In fact, 38

C.F.R. § 3.307(b) clearly states that the factual basis for proving the existence of a

chronic disease may be established by “medical evidence, competent lay evidence or

both.” Thus, nothing in the regulatory or statutory provisions described above require

both medical and competent lay evidence; rather, they make clear that competent lay

evidence can be sufficient in and of itself.




05-7174                                        8
      The Veterans Court here stated that the Board found no “competent” evidence of

record to substantiate Mr. Buchanan’s claim that his psychiatric condition began during

his first period of service or within the first year after service and thus, the Board’s

decision was not clearly erroneous. The Board’s decision, however, does not reflect a

determination on the competency of the lay statements. Rather, it reveals that the

Board improperly determined that the lay statements lacked credibility merely because

they were not corroborated by contemporaneous medical records.

      The Board stated that “[r]ecollections of medical problems some 20 years after

the veteran’s separation from service have slight probative value and lack credibility

absent confirmatory clinical records to substantiate such recollections.” (Appellant App.

21.) This statement reflects the Board’s view that it considered the lay statements to be

of slight probative value because of the significant time delay between the affiants’

observations of Mr. Buchanan’s behavior and the date on which the statements were

written. That determination by the Board is completely within the Board’s discretion to

weigh the evidence submitted by the veteran in support of a claim for benefits and it

does not appear to be the subject of Mr. Buchanan’s challenge here. The second

portion of the Board’s statement, that the lay statements lack credibility absent

confirmatory clinical records to substantiate such recollections, however, is another

matter.   The second portion of the Board’s statement reflects a legally untenable

interpretation of the above enumerated statutory and regulatory provisions: that absent

confirmatory medical evidence, lay evidence lacks credibility.       While the lack of

contemporaneous medical records may be a fact that the Board can consider and weigh

against a veteran’s lay evidence, the lack of such records does not, in and of itself,




05-7174                                    9
render lay evidence not credible. Such an interpretation is unreasonable because it

would render portions of the statutes and regulations meaningless as it would read out

the option of establishing service connection based on competent lay evidence.

       We also note that the Board found the opinion of the 2002 DVA examiner to be

“the most persuasive evidence of record because it relies on the objective medical

documents in the record rather that [sic] the slight probative recollections of the veteran,

his relatives, acquaintances, and a service comrade.”          (Appellant App. 22.)     The

examiner, however, ultimately relies not on the objective medical evidence, but rather

the absence of such in reaching her opinion that the onset of Mr. Buchanan’s

psychiatric symptoms did not occur during his first period of service or within one year

following that service.1 As the opinion summary states: “Thus, given the absence of any

medical documentation from the veteran’s [first] period of active duty service . . . and

given the absence of any medical documentation of psychiatric symptoms or treatment

within the one-year presumptive period, . . . the veteran’s onset of symptoms of

schizophrenia did not occur during his first period of active service or during the one

year presumptive period.” (Appellant App. 52.)

       This is not to say that the Board may not discount lay evidence when such

discounting is appropriate. Rather, the Board, as fact finder, is obligated to, and fully

justified in, determining whether lay evidence is credible in and of itself, i.e., because of

possible bias, conflicting statements, etc. Nor do we hold that the Board cannot weigh



       1
              Indeed, the examiner’s opinion appears to have failed to consider whether
the lay statements presented sufficient evidence of the etiology of Mr. Buchanan’s
disability such that his claim of service connection could be proven without
contemporaneous medical evidence.



05-7174                                      10
the absence of contemporaneous medical evidence against the lay evidence of record.

Under the correct interpretation of the relevant statutory and regulatory provisions,

however, the Board cannot determine that lay evidence lacks credibility merely because

it is unaccompanied by contemporaneous medical evidence. If the Board concludes

that the lay evidence presented by a veteran is credible and ultimately competent, the

lack of contemporaneous medical evidence should not be an absolute bar to the

veteran’s ability to prove his claim of entitlement to disability benefits based on that

competent lay evidence.

                                   III. CONCLUSION

       The Veterans Court erred by affirming the Board’s erroneous statutory and

regulatory interpretation that lay evidence cannot be credible absent confirmatory

clinical records to substantiate the facts described in that lay evidence. Accordingly, we

vacate the Veterans Court decision and remand the case for proceedings consistent

with this opinion.

                                         COSTS

       Each party shall bear its own costs.

                              VACATED and REMANDED




05-7174                                       11
