                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2008-7096

                                 ERIC H. ROBINSON,

                                                          Claimant-Appellant,

                                           v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                          Respondent-Appellee.


      Eric H. Robinson, of Covington, Virginia, pro se.

       Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F.
Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski,
Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the
General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William A. Moorman
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-7096

                                 ERIC H. ROBINSON,

                                                Claimant-Appellant,

                                           v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 06-0164, Judge
William A. Moorman.

                           __________________________

                           DECIDED: March 3, 2009
                           __________________________


Before MICHEL, Chief Judge, DYK and PROST, Circuit Judges.

PER CURIAM.

      Appellant Eric Robinson appeals a decision of the United States Court of Appeals

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

(“Board’s”) decision to deny a service connection for Mr. Robinson’s low-back disability.

See Robinson v. Peake, No. 06-0164, 2008 WL 570275 (Vet. App. Jan. 30, 2008). For

the reasons that follow, we vacate the Veterans Court’s opinion and remand.


                                   I. BACKGROUND

      Mr. Robinson served in the U.S. Army from November 1984 until July 1987.

During that period, he was examined twice due to complaints of lower back pain. His
1987 separation examination indicated that his spine was normal, but the examiner

recommended that he see an orthopedist for his lower back pain. Mr. Robinson did not

see an orthopedist at that time. He filed a claim for service connection for a back

disability in 1993, and was examined again in 1994. At the examination, Mr. Robinson

said that a pad fell off of his rucksack during a 1985 march, rubbing against his back

and causing him pain. Although Mr. Robinson said that there were medical records that

would show that he reported the injury in 1985, Mr. Robinson never gave those records

to his examiner, despite being asked to provide them “as soon as possible.” His claim

was denied in 1994, and Mr. Robinson did not appeal that decision.

       The Board reopened the case in 2002 because Mr. Robinson submitted new and

material evidence supporting his claim—for example, in 1997 he was diagnosed with

chronic low-back pain, and in 2000 an MRI scan showed a large disc herniation. After

having Mr. Robinson examined once again, the Board denied a service connection for

Mr. Robinson’s low-back disability in November of 2005. Mr. Robinson appealed to the

Veterans Court, and in 2008 that court affirmed the Board’s decision.

       Mr. Robinson filed his informal brief with this court on September 24, 2008. The

Secretary of Veterans Affairs (“Secretary”) filed a motion to dismiss the case for lack of

jurisdiction.   We denied the motion without prejudice, and asked the Secretary to

address the question of whether the Veterans Court and the Board “properly required

medical evidence to establish a continuity of symptoms relating [Mr.] Robinson’s in-

service back injuries to his current low back disability.”     Robinson v. Peake, No.

2008-7096 (Fed. Cir. Dec. 3, 2008) (order denying motion to dismiss) (citing Groves v.




2008-7096                                   2
Peake, 524 F.3d 1306 (Fed. Cir. 2008); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.

Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)).

                                     II. DISCUSSION

       Under 38 U.S.C. § 7292, this court has limited authority to review the Veterans

Court’s decisions.     This court decides “all relevant questions of law, including

interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). However,

unless the appeal presents a constitutional issue, we may not review “(A) a challenge to

a factual determination, or (B) a challenge to a law or regulation as applied to the facts

of a particular case.” Id. § 7292(d)(2).

       In his informal brief, Mr. Robinson claims that his medical records “are full of lies”

and are “all screwed up.” He also claims he had no representative. The Secretary says

that the Veterans Court’s decision involved only factual findings and the application of

law to those facts, leaving us without jurisdiction. To the extent that Mr. Robinson is

asking us to examine his medical records and determine whether or not there are errors

within those records, we agree with the Secretary—the accuracy of medical records is a

question of fact over which we have no jurisdiction. Further, we note that the Veterans

Court’s opinion clearly indicates that Mr. Robinson was represented by counsel during

his appeal.

       On the other hand, we have jurisdiction over the question of whether the Board

errs as a matter of law when it refuses to consider lay evidence based on the

assumption that only those possessing specialized medical training and knowledge are

competent to diagnose or provide an opinion on a disease or injury. See Buchanan,

451 F.3d at 1334–35, Jandreau, 492 F.3d 1376–77. We turn now to that question.




2008-7096                                    3
       To establish a service connection for an injury, the Veterans Court generally

requires a veteran to show (1) medical evidence of a current disability, (2) medical or lay

evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence

of a nexus between the claimed in-service injury and the present disability. Dalton v.

Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish

some of these elements, a veteran can instead establish continuity of symptomatology.

38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish

continuity of symptomatology, the Veterans Court requires a veteran to show “(1) that a

condition was ‘noted’ during service, (2) evidence of postservice continuity of the same

symptomatology, and (3) medical or lay evidence of a nexus between the present

disability and the postservice symptomatology.” Barr, 21 Vet. App. at 307.

       In Buchanan, we held that although the Board can “weigh the absence of

contemporaneous medical evidence against the lay evidence of record,” the Board

“cannot determine that lay evidence lacks credibility merely because it is

unaccompanied by contemporaneous medical evidence.” 451 F.3d at 1337 (emphasis

added). We revisited the issue in Jandreau, rejecting as “too broad” the proposition that

“competent medical evidence is required . . . [when] the determinative issue involves

either medical etiology or a medical diagnosis.”       Jandreau, 492 F.3d at 1376–77

(alteration in original).   Instead, “[l]ay evidence can be competent and sufficient to

establish a diagnosis of a condition when (1) a layperson is competent to identify the

medical condition, (2) the layperson 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 (footnote omitted). As an example, we pointed out




2008-7096                                    4
that a layperson would be competent to identify a “simple” condition like a broken leg,

but would not be competent to identify a form of cancer. Id. at 1377 n.4. We noted,

however, that “[w]hether lay evidence is competent and sufficient in a particular case is

a fact issue to be addressed by the Board rather than a legal issue to be addressed by

the Veterans’ Court.” Id. at 1377.

       The Board unquestionably has the authority to determine whether a low-back

disability is the type of injury for which lay evidence is “competent and sufficient,” but the

Board did not do so here. Instead, the Board stated that “lay statements are considered

to be competent evidence when describing the symptoms of a disease or disability or an

injury,” but “when the determinative issue involves a question of medical diagnosis or

causation, only individuals possessing specialized training and knowledge are

competent to render an opinion.” The Board went on to state that “in situations of

continuity of symptomatology after service, there still must be medical evidence relating

the current condition at issue to that symptomatology,” and Mr. Robinson’s “allegations

alone have no probative value without medical evidence substantiating them.”

       We read the Board’s opinion as, in effect, holding that a layperson can never

provide competent evidence on any question of etiology or diagnosis. This statement of

law contradicts our holding in Jandreau. 1        The government attempts to rebut this

conclusion by pointing to the Board’s statement that “as a layperson, [Mr. Robinson] is

not competent to give an opinion requiring medical knowledge, such as the etiology of a

current low back disability.” But the Board did not make this statement because it



       1
             We recognize that the Board’s opinion in this case issued in 2005, and
therefore predates our decisions in Buchanan and Jandreau. Therefore, we do not
mean to imply that the Board consciously disregarded the holdings in the cited cases.


2008-7096                                     5
considered the question and determined that a low-back injury is a type of disability that

does not lend itself to lay evidence; rather, a full and fair reading of the opinion shows

that the Board made this statement because it believed that an etiology determination

can only ever be supported by a person with “medical knowledge.”

      We therefore hold that the Board erred as a matter of law by disregarding the

possibility that, in some cases, lay evidence will be competent and credible evidence of

etiology. We reiterate that whether lay evidence is competent in this particular case is a

question of fact to be decided by the Board in the first instance. Therefore, on remand,

a two-step analysis of Mr. Robinson’s lay evidence is required. The Board must first

determine whether a low-back disability is the type of injury for which lay evidence is

competent evidence.     If so, the Board must weigh that evidence against the other

evidence of record—including, if the Board so chooses, the fact that Mr. Robinson has

not provided any in-service record documenting his back injury—to determine whether

to grant Mr. Robinson a service connection.

                                     CONCLUSION

      For the reasons stated above, we vacate and remand to the Veterans Court so

that it may remand to the Board for further consideration.




2008-7096                                   6
