Layno v. Brown

6 Vet. App. 465, 1994 U.S. Vet. App. LEXIS 484, 1994 WL 226652
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 27, 1994
DocketNo. 92-353
StatusPublished
Cited by715 cases

This text of 6 Vet. App. 465 (Layno v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Layno v. Brown, 6 Vet. App. 465, 1994 U.S. Vet. App. LEXIS 484, 1994 WL 226652 (Cal. 1994).

Opinions

MANKIN, Judge, filed the opinion of the Court, in which NEBEKER, Chief Judge, joined. STEINBERG, Judge, filed a separate opinion concurring in part and dissenting in part.

MANKIN, Judge:

Benito C. Layno (appellant) appeals a February 14, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) finding that the appellant did not establish service connection for bronchial asthma. The appellant claims the BVA erred in determining that he did not present sufficient credible evidence to establish service connection. However, we hold that the Board erred in finding that the appellant’s claim was well grounded and therefore vacate the February 14,1992, decision of the Board.

I. Factual Background

The appellant served on active duty from July 1946 to March 9,1949. He claimed that he incurred bronchial asthma during that time, and therefore sought service connection for the injury. Having been denied by the Regional Office (RO), the appellant appealed to the BVA. In its February 14, 1992, decision, the Board made specific findings of fact regarding whether the evidence was sufficient to grant the claim, and whether the appellant’s witnesses were credible.

Regarding the appellant’s evidence in support of his claim for service connection for bronchial asthma, the Board found that the appellant had not presented sufficient credible evidence. The Board found that the appellant’s service medical records had been destroyed in the 1973 fire at the National Personnel Records Center (NPRC). Accordingly, the NPRC certified that the appellant had “fire-related service,” and conducted a search of the morning and sick reports for the period September 1948 through January 1949. The period searched by the NPRC was that indicated by the appellant as pertinent to his claim. The search revealed only one sick report entry for the appellant. This entry was dated December 8, 1948, and indicated no diagnosis, but did note that the appellant was returned for service the same day.

Additionally, the Board found that the evidence in support of the appellant’s claim was slim. The appellant presented his own testimony as to the onset and diagnosis of bronchial asthma prior to his discharge on March 9, 1949. Specifically, the appellant testified in September 1991, more than forty years after the fact, that “[i]t was on or about March 8,1949 [the day before the appellant’s discharge], that the first manifestations of my asthma was [sic] shown.” He also testified as to the exact date, January 15, 1950, when he began treatment for bronchial asthma by a private physician.

[468]*468He also proffered a written statement from his private physician, Amador Corpuz, M.D., that he had been treated for “recurrent bronchial asthma” from January 15, 1950, to March 30,1955. An additional written statement from the appellant’s doctor indicated that the appellant’s treatment records from October 1, 1953, to December 7, 1986, were available, but that earlier records “must have been misplaced, lost or destroyed due to the length of time that have [sic] elapsed since 1950.” The appellant presented copies of treatment records for the period October 1953 to December 7, 1986, in support of his claim.

The appellant also presented the joint sworn affidavit of Euletrio Laeno and Silves-tre Madalipay, stating they had personal knowledge of the appellant’s bronchial asthma “since early March 1949,” its onset, and treatment by Dr. Corpuz “from January 15, 1950 up to March 30, 1955.” The affiants stated they had this personal knowledge because they had the opportunity to observe the appellant on a regular basis. The affi-ants did not testify as to their particular observations regarding the appellant’s symptoms or conditions, only that they had personal knowledge of the appellant’s bronchial asthma. The affiants also stated that they had personal knowledge of the appellant’s treatment by Dr. Corpuz because they had been invited to accompany the appellant when he went for treatment. The affiants did not state whether they had actually accompanied the appellant to his appointments with Dr. Corpuz.

The Board also reviewed the live testimony of Silvestre Madalipay, Cecilia Magbual, and Alejandra Gampong on behalf of the appellant at an RO hearing in September 1991. Mr. Madalipay testified that he knew the appellant and had the opportunity to observe him. Mr. Madalipay stated that the appellant had difficulty breathing “after his arrival at our place,” and that this was not consistent with the appellant’s preservice condition. Ms. Magbual testified that she also knew the appellant, and had the opportunity to observe him “after he arrived from Okinawa.” She noted that his condition was “very bad.” Finally, Ms. Gampong testified that she too knew the appellant, and stated that upon his return from service, the appellant “started complaining about his asthma.”

Finally, the Board noted that the appellant stated that he had been treated three times in service for bronchial asthma through sick calls. However, the Board found no support for such treatment in the appellant’s service medical records. The Board also found no documentary evidence to support the appellant’s claim of private treatment after discharge but prior to 1953.

The Board additionally found inconsistencies in the evidence presented by the appellant. The Board found it contradictory that the appellant initially stated he had been treated for bronchial asthma from September 1948 to January 1949, but later claimed to have had bronchial asthma on or about March 8, 1949, one day before his discharge. Based upon the time that had passed between the initial observation and time of testimony, the Board found it “extremely suspect that 4 people remember the exact same date that the appellant began receiving treatment for bronchial - asthma almost 40 years ago, and remember with such specificity his condition immediately following service.” Consequently, the Board concluded that due to the inconsistencies in the record, “The best conclusion ... is that bronchial asthma was not incurred [in] or aggravated by service.” This appeal followed.

II. Analysis

The Secretary first contends that this Court need not address any of the issues regarding the Board’s analysis of the evidence because the appellant’s claim is not well grounded. The Secretary argues that the determinative issue in the appellant’s claim is medical causation or diagnosis, and relies upon Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993), for the proposition that lay assertion of medical causation or diagnosis is insufficient to render a claim well grounded. A claim is well grounded where it is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The quality and quantity of evidence required to satisfy this statutory burden will depend upon the nature of the claim. Grottveit, 5 Vet.App. at 93.

[469]*469In the present case, the appellant is seeking service connection for bronchial asthma. He has “the burden of submitting evidence sufficient to justify a belief that the claim is well grounded....” Id. at 92. More than just an allegation is required to present a well-grounded claim; a claimant must submit evidence that will “justify a belief by a fair and impartial individual that the claim is plausible.” Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).

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Bluebook (online)
6 Vet. App. 465, 1994 U.S. Vet. App. LEXIS 484, 1994 WL 226652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/layno-v-brown-cavc-1994.