Sacks v. West

11 Vet. App. 314, 1998 U.S. Vet. App. LEXIS 968, 1998 WL 457695
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 7, 1998
DocketNo. 97-1336
StatusPublished
Cited by37 cases

This text of 11 Vet. App. 314 (Sacks v. West) 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
Sacks v. West, 11 Vet. App. 314, 1998 U.S. Vet. App. LEXIS 968, 1998 WL 457695 (Cal. 1998).

Opinion

KRAMER, Judge:

The appellant, Jeffrey A. Sacks, appeals a May 16,1997, decision of the Board of Veterans’ Appeals (BVA or Board) denying as not well grounded the appellant’s claim for service connection for pemphigus vulgaris. Record (R.) at 1-10. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the decision of the BVA.

I. RELEVANT BACKGROUND

The appellant had active service from January 1980 to March 1983, from January to May 1986, and from January to September 1991. The last period of active duty included participation in Operations Desert Shield and Desert Storm. The appellant avers that during his service in Desert Shield/Storm he experienced sores or blisters like cold sores in his mouth. R. at 346-47, 352, 354. His parents confirm that he complained to them of this condition both during his last period of active service and after release from active duty. R. at 358. In July 1992, the appellant sought treatment for a foreign body sensation in his throat that he reported had had its onset four to six weeks earlier. R. at 210. Based upon the results of a biopsy performed in September 1992, he was diagnosed with pemphigus vulgaris. R. at 242. (Pemphigus vulgaris is “a severe and often fatal form of chronic pemphigus,” which is “any of several diseases characterized by the formation of successive crops of large blisters on apparently normal skin and mucous membranes often in association with sensations of itching or burning and with constitutional symptoms.” Webster’s Medioal Desk Dictionary 525 (1986).)

In support of his claim to establish service connection for pemphigus vulgaris, the appellant submitted, inter alia, a medical journal article, which included a case study, that stated that pemphigus vulgaris “usually presents ... with erosion of mucous membranes, especially in the mouth. Often, painful mouth erosions are the only abnormality for months before skin erosions and/or flaccid blisters develop.” R. at 301. The appellant relies principally on this evidence to demonstrate that pemphigus vulgaris had its onset in service.

II. ANALYSIS

A. The Use of Medical Treatise Evidence

“[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a). Establishing a well-grounded claim generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1469 (Fed.Cir.1997); Heuer v. Brown, 7 Vet.App. 379 (1995); Grottveit v. Brown, 5 Vet.App. 91 (1993). The second and third Caluza elements can also be satisfied by evidence that a condition was “noted” during service or during an applicable presumption period; evidence showing post-service continuity of symptomatology; and medical or, in certain circumstances, lay evidence of a nexus be: tween the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b) (1997); Savage v. Gober, 10 Vet.App. 488, 495-97 (1997).

Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is “plausible” or “possible” is generally required for the claim to be well grounded. Heuer, 7 Vet.App. at 384; Grottveit, 5 Vet.App. at 93. Such determinations require [316]*316“specialized knowledge or training,” and, therefore, cannot be made by a lay person. Layno v. Brown, 6 Vet.App. 465, 470 (1994); see also Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Lay persons are not competent to offer medical opinions because the “question[s] involved [do] not lie within the raiige of common experience or common knowledge.” Id. (quoting Frye v. United States, 293 F. 1013, 1014 (1923)).

The Court will assume for purposes of its analysis that both Caluza elements 1 and 2 are established. Thus, the question before the Court is whether, for purposes of establishing a well-grounded claim, the appellant’s lay testimony and generic medical journal or treatise evidence that does not specifically opine as to the relationship between the appellant’s condition and active service can establish the medical nexus evidence as required by Caluza element 3.

In addressing this question, a brief review of relevant caselaw would be helpful. Very early in the history of the Court it was made clear that the BVA may not “refut[e] the expert medical conclusions in the record with its own unsubstantiated medical conclusions. BVA panels may only consider independent medical evidence to support their findings.” Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); see also Alemany v. Brown, 9 Vet.App. 518, 519 (1996); Harder v. Brown, 5 Vet.App. 183, 188 (1993); Cosman v. Principi, 3 Vet.App. 503, 506 (1992). In Utendahl v. Derwinski, 1 Vet.App. 530 (1991), the appellant submitted a medical treatise to prove that her husband’s death was related to his service-connected sickle-cell anemia. The Court held that the treatise was insufficient to establish service connection because:

The medical treatise submitted by appellant only raises the possibility that there may be some relationship between sickle cell anemia and certain cardiovascular disorders. The article does not show that there was a direct causal relationship between sickle cell anemia and the cause of death listed on the veteran’s death certificate.

Id. at 531. Next, in Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court, in dealing with the adequacy of medical evidence generally, stated that a medical opinion employing the phrase “ ‘may or may not’ ... is speculative and would not ‘justify a belief by a fair and impartial individual that the claim is well grounded.’” Id. at 611 (quoting 38 U.S.C. § 5107(a)). In Caluza, the Court clarified the role of medical evidence in determining whether a claim is well grounded: “Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself.” Caluza, 7 Vet.App. at 504. Later, in Beausoleil v. Brown, 8 Vet. App. 459 (1996), the Court considered a doctor’s letter stating, “Trauma to the chest can cause restrictive lung disease.” The Court held that such a statement

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Bluebook (online)
11 Vet. App. 314, 1998 U.S. Vet. App. LEXIS 968, 1998 WL 457695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sacks-v-west-cavc-1998.