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Caesar v. West

May 14, 1998


Before Rich, Clevenger, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge

Dominick R. Caesar, Jr., appeals from the decision of the United States Court of Veterans Appeals, affirming a decision of the Board of Veterans' Appeals (Board) that denied Caesar's request to reopen his claim for residuals to a blast injury to his left ear. Caesar v. Brown, No. 96-1033, 1997 WL 288722 (Vet. App. May 5, 1997). On appeal, Caesar asserts that the court misinterpreted 38 U.S.C. § 1154(b) in the process of deciding that he had failed to produce sufficient new and material evidence to reopen his claim. We have jurisdiction to consider the meaning of this statute. See 38 U.S.C. § 7292(a) (1994); Madden v. Gober, 125 F.3d 1477, 1480 (Fed. Cir. 1997). Because we agree with Caesar on this point, we vacate the decision of the court and remand for further proceedings.


For Caesar ultimately to succeed, he must meet the test of basic entitlement set forth in 38 U.S.C. § 1110 (1994), which requires that there be a "disability resulting from personal injury suffered or disease contracted in line of duty, . . . in the active military, naval, or air service, during a period of war."

Section 1154 of Title 38 "considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in . . . combat service." Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). The statute provides that, "[i]n the case of any veteran who engaged in combat with the enemy in active service . . . during a period of war, campaign or expedition," the Department of Veterans Affairs "shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in . . . such service satisfactory lay evidence or other evidence of service incurrence . . ., if consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C. § 1154(b) (1994).

In Collette, we held that section 1154(b) sets out a three-step test: first, it must be determined if a veteran has submitted satisfactory lay or other evidence of service incurrence of an injury; second, to decide if such evidence is satisfactory, it must be determined if the evidence proffered is consistent with the circumstances, conditions, or hardships of the service; and, third, if steps one and two are satisfied, the veteran gains a rebuttable factual presumption of "service-connection," which can only be upset by clear and convincing evidence to the contrary supplied by the government. See id. at 392-93; see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).


When Caesar initially sought benefits in 1956 for a damaged ear condition, he claimed that his malady was caused by a gun shot near his ear during a battle in France in World War II, while serving under the command of General Patton. To prove that fact, he offered his own statement, along with a statement of a fellow soldier that explained in detail the wartime wound to Caesar's ear, and the steps taken by medics, Caesar, and the fellow soldier to attend to the wound. Notwithstanding this lay evidence of service incurrence of his ear injury, Caesar's claim was dismissed in the regional office and by the Board in 1956. Caesar's many attempts to reopen his claim thereafter were also denied on the ground that he failed to establish service connection. When Caesar failed to appeal from a February 1988 regional office denial of his claim, that decision became final, and thereafter Caesar became obligated to present "new and material" evidence to gain reconsideration of his claim. See 38 U.S.C. § 5108 (1994).

Beginning in 1993, Caesar sought to produce such new and material evidence. In 1994, he produced a medical record attesting to his then serious hearing impairment. When the regional office refused to reopen his claim, he appealed to the Board. In 1995, he and his wife testified at a Board hearing, reiterating the onset of his hearing injury during his combat service. In its May 16, 1996, decision, the Board concluded that the evidence submitted by Caesar concerning service connection was insufficient to warrant reopening of his claim.


On appeal to the Court of Veterans Appeals, Caesar first argued that, in the light of our decision in Collette, he had presented new and material evidence that past decisions of the Board had failed to interpret section 1154(b) properly, in order to afford him the presumption of "service-connection" based on his lay evidence. Second, he contended that Collette represented a substantive change in the law that entitled him to receive consideration of his claim again. Our recent decision in Routen v. West, No. 97-7064, slip op. at 8-12 (Fed. Cir. Apr. 30, 1998), refutes this second contention.

With respect to the first contention, the court decided that the evidence submitted by Caesar since the denial of his claim in 1988 is "new" for purposes of his attempt to reopen his claim, but that the evidence is not "material." Caesar, 1997 WL 288722, at *2. The court held that Caesar has "not met the first step required by Collette because he has not provided satisfactory evidence, i.e., medical evidence, that the in-service blast injury caused his current ear condition." Id. (emphasis added). The absence of such medical evidence is the premise for the court's Conclusion that the new evidence submitted by Caesar is not material.

Caesar asserts that the first step of Collette, under section 1154(b), does not require medical evidence, and that the lay evidence of record, in addition to the medical evidence of his present ear injury, suffices to establish his entitlement to benefits for his ear injury. We agree with the first proposition, and state no view on the second. The first step in the Collette analysis does not ask if there is a connection between the veteran's current condition and the injury sustained while in service. The first step is only concerned with establishment of service incurrence by satisfactory lay evidence. The Court of Veterans Appeals erred, under the statute, by importing a requirement of medical evidence into the first step of Collette. Instead, the court should have determined whether the lay evidence of record satisfies the first two steps in Collette. If so, the court then would have to address the question of whether Caesar is obligated to show a nexus between his current condition and the in-service injury to receive, ultimately, compensation under 38 U.S.C. § 1110, and if so obligated, whether he has succeeded.

We note that, during oral argument of this appeal, the parties were unable to identify any precedent that defines the process and requirements for establishing a nexus, if such is required at all, between an in-service injury established solely by lay evidence and a current condition. If Caesar is able to satisfy the first two steps of ...

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