**UNITED STATES COURT OF VETERANS APPEALS**

No. 94-1031

[Bernard R. Smith, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided September 4, 1996)

*Stephanie Forester* was on the pleadings for the appellant.

*Mary Lou Keener,* General Counsel; *Ron Garvin*, Assistant General
Counsel; *R. Randall Campbell*, Deputy Assistant General Counsel; and
*Rudrendu Sinhamahapatra* were on the pleadings for the appellee.

Before NEBEKER, *Chief Judge*, and MANKIN[^1] and IVERS, *Judges*.

NEBEKER, *Chief Judge*: The appellant, Bernard R. Smith, appeals an
August 31, 1994, Board of Veterans\' Appeals (Board or BVA) decision
denying entitlement to service connection for a varicocele. (Varicocele
is \"a varicose enlargement of the veins of the spermatic cord producing
a soft compressible tumor mass in the scrotum.\" [Webster\'s Medical
Desk Dictionary]{.smallcaps} 751 (1986).) The Board\'s decision also
denied entitlement to service connection for residuals of a
hemorrhoidectomy, but the appellant has not appealed that issue. The
appellant has submitted a motion for remand in lieu of a brief. The
Secretary has filed a response in opposition of the motion. After
consideration of the record on appeal and the pleadings of the parties,
the Court will vacate the BVA\'s decision and remand the matter for the
following reasons.

**I. FACTS**

The appellant served in the U.S. Army from June 1944 to April 1946.
Record (R.) at 21. He initially claimed entitlement to service
connection for a varicocele in January 1978. R. at 24-27. He submitted a
diagnosis dated March 1978 of a varicocele above his left testicle. R.
at 38. The regional office (RO) discovered that his service medical
records had been lost in a fire at the National Personnel Records Center
in 1973. R. at 31. The RO denied his claim on March 1, 1978. R. at 34. A
couple of weeks later, the appellant submitted a statement explaining
that he had been kicked in the groin during basic training at Camp
Blanding, after which he was unable to complete basic training due to
the injury. R. at 41-42. He reported that he had been treated for this
condition by Dr. Paul K. Good, but no treatment records were available.
*Ibid.* The RO sent the appellant a letter requesting that he furnish
the dates he was treated at Camp Blanding and any medical evidence which
established the continuity of treatment from separation from service to
the present. R. at 46. The appellant responded that he had not been able
to obtain hospitalization records from Camp Blanding and that he was
treated after discharge by Dr. Paul K. Good, but that those records were
not available. R. at 48. A May 1978 RO decision referred to the
appellant\'s claim for service connection for a varicocele as an attempt
to reopen and stated, \"Vet\[eran\]\'s claim is a duplicate of that
denied by 3-1-78 rating due to not being shown in any service records.
No new \[and\] material evidence submitted. Confirm prior denial.\" R.
at 51. The RO sent the appellant a letter dated May 24, 1978, stating:

> The application which you recently filed for disability benefits is
> essentially a duplicate of a claim previously filed by you.
>
> Our records show that we notified you on March 9, 1978 that your claim
> for varicose veins, left testicle was disallowed and that you were
> permitted to appeal this decision within one year from that time,
> otherwise that decision would become final unless you could submit new
> and material evidence. Since you have not presented any new and
> material evidence, no change in our previous decision is warranted and
> no action on your duplicate claim will be taken.

R. at 53.

The appellant then wrote the RO a letter stating it had always been his
belief that the Army \"keep\[s\] very detailed records,\" but that his
Camp Blanding records were not available. R. at 56. He attached a form
dated May 29, 1945, which informed the commanding officer at Camp
Blanding that the appellant was to report for physical examination on
June 1, 1945. R. at 58. The RO again decided that the appellant had not
submitted any new and material evidence. R. at 61, 63.

In May 1985, the appellant submitted another statement reiterating that
he had been kicked in the groin and, as a consequence, had not finished
basic training. R. at 70-71. The RO determined that no new and material
evidence had been submitted to reopen his claim for service connection.
R. at 78. In December 1988, the appellant submitted copies of daily sick
reports which noted that in August 1944 he had undergone treatment for
an unspecified condition which preexisted service. R. at 114-19. The RO
again found that the appellant had not submitted any new and material
evidence to warrant reopening his claim. R. at 124.

In a personal hearing in July 1989, the appellant alleged that after he
had been kicked in the groin in August 1944, his service records had
been changed to show that the varicocele preexisted service to protect
the officer who had kicked him. R. at 149. He also testified that the
injury he sustained at that time had persisted over the years and had
interfered with his sex life. R. at 151. The hearing officer found that
no new and material evidence had been submitted. R. at 157-58. The
appellant appealed that decision to the BVA which, in a March 1990
decision, considered the claim on a de novo basis and determined that a
varicocele was not incurred in or aggravated by service. R. at 170-74.

The appellant appealed that decision to this Court. *Smith v.
Derwinski*, 2 Vet.App. 147 (1992). We held that the Board had improperly
required objective medical evidence to corroborate the appellant\'s
testimony and had not complied with its duty to provide adequate reasons
and bases for its denial of service connection; we vacated the Board\'s
decision and remanded the matter. On remand from this Court, the BVA
issued another decision which relied on medical treatises to deny
entitlement to service connection. R. at 252-58. The appellant again
appealed to this Court, and on February 14, 1994, we granted the
parties\' joint motion to vacate and remand for the Board to comply with
*Thurber v. Brown*, 5 Vet.App. 119 (1993).

On remand, the appellant submitted a sworn statement from his wife in
which she stated:

> I am intimately familiar with the physical capacity of my husband,
> being married to him prior to him entering into the service. Upon his
> discharge, I truly affirm, that my husband suffered from a service
> related disability which interfered with sexual activity for the past
> 48 years; that I have personally witnessed discomfort, pain, anxiety,
> and occasional dysfunction as a result of such injury; that there is
> no treating physician, friend or person knowledgeable with the
> condition who is any longer alive.

R. at 266. On June 9, 1994, the BVA sent the appellant\'s attorney a
letter explaining that the BVA proposed to rely on \"\`evidence
developed or obtained by it subsequent to the issuance of the most
recent\' Statement of the Case . . . .\" R. at 270. The letter went on
to state:

> A period of 60 days from the date of this letter is allowed for you to
> submit any additional argument or comment. . . .
>
> . . . .
>
> The Board will consider additional evidence in this appeal only on
> written motion for good cause for its submission at this time and if
> the evidence is accompanied by a waiver of consideration by the agency
> of original jurisdiction.

R. at 270-71. Attached were a statement of the reliance the Board
proposed to place on the evidence and excerpts from the pertinent
treatises. R. at 272-92. No response was received to the invitation to
submit within 60 days additional argument or comment, although
apparently the White House forwarded to VA a copy of a letter the
appellant had written to President Clinton regarding his quest for
benefits. *See* R. at 294, 296. The Board\'s decision now on appeal
followed.

**II. ANALYSIS**

The appellant argues in his motion for remand that the BVA relied on
medical treatises to support its denial of the appellant\'s claim
without providing the appellant with an opportunity to submit additional
evidence as required by *Thurber, supra*, and *Austin v. Brown*, 6
Vet.App. 547 (1994). Although the February 1994 remand by this Court
directed the BVA to comply with *Thurber, supra*, the BVA had restricted
the appellant\'s response to the submission of additional argument or
comment and told him that the BVA would only consider additional
evidence on written motion for good cause for its submission. *See* R.
at 270. The appellant additionally argues that the BVA again failed to
provide adequate reasons and bases for its denial in that it found the
appellant\'s testimony not to be particularly credible because of the
lack of corroboration by medical records. The appellant points out that
the BVA gave no reasons for its implicit rejection of his wife\'s sworn
statement. Finally, the appellant argues that the BVA failed to fulfill
its duty to assist the appellant by not reopening his claim and
informing the appellant that he had 60 days in which to furnish
information regarding possible alternate sources of evidence as required
by the V[A Adjudication Procedure Manual, (M21-1)]{.smallcaps}. In
response to the appellant\'s motion, the Secretary argues that his claim
for service connection was not well grounded and, therefore, any errors
in the BVA\'s decision are harmless.

In the interim, the Court of Appeals for the Federal Circuit upheld this
Court\'s decision in *Barnett v. Brown*, \_\_F.3d\_\_, No. 95-7058 (Fed.
Cir. May 6, 1996), *aff\'g* 8 Vet.App. 1 (1995), concluding that the
Board must preliminarily decide that new and material evidence has been
presented in a case it has previously adjudicated, before addressing the
merits of the claim. *Barnett,* \_\_F.3d at \_\_, slip op. at 7. This is
a mandatory jurisdictional requirement. 38 U.S.C. § 5108. Moreover, once
the Board finds that no such evidence has been offered, that is where
the analysis must end. *Barnett*, 8 Vet.App. at 4. The Board\'s review
of the evidence of record is necessary to determine whether new and
material evidence has been submitted, but a \"review \[of\] the former
disposition of the claim\" (§ 5108, *supra*) by the Board is beyond its
jurisdiction. *Barnett,* \_\_F.3d at \_\_, slip op. at 7 (holding \"that
the Board does not have jurisdiction to consider a claim which it
previously adjudicated unless new and material evidence is presented\");
*see also McGinnis v. Brown*, 4 Vet.App. 239, 244 (1993) (Board
reopening is unlawful when new and material evidence has not been
submitted). However, in the present case we need not decide whether
*Barnett* is retroactively applicable because our earlier vacation and
remand *directed* a merits consideration, not a new and material
evidence analysis. Despite the Secretary\'s argument to the contrary, we
conclude that under the circumstances revealed in this record, the
appellant\'s claim is well grounded. While the well groundedness of the
initial claim filed in 1978 may be questioned, we need not address the
point. By the mid-1980\'s, the record contained evidence that appellant
was unable to complete basic training because of the kick in the groin.
In addition, appellant asserted that his service records had been
changed to protect the officer alleged to have kicked him. More
important is his testimony that the symptoms continued over the years
and had interfered with his sexual performance. This was corroborated by
the appellant\'s wife\'s statement. Plausibility of the claim thus
existed at least from 1989. Accordingly, we deal with the other issues
raised.

In its decision, the Board stated:

> The Board\'s review of several surgical and neurological texts does
> not show that blunt trauma of the scrotum or groin causes or helps to
> cause a varicocele. . . . Those texts show that the left testicle is
> affected 90 percent of the time (the veteran\'s varicocele is on the
> left) and that the cause is idiopathic or due to incompetent valves in
> the testicular veins. . . . The Board finds that these authorities are
> probative as the etiology \[of\] this varicocele. As a matter of law,
> as a lay person, the veteran\'s testimony as to the cause of his
> condition is not competent evidence of causation. Gowen v. Derwinski,
> 3 Vet.App. 286, 288-89 (1992). \[This is a memorandum decision and
> therefore of no precedential value. *See Bethea v. Derwinski*, 2
> Vet.App. 252, 254 (1992); *but see Espiritu v. Derwinski*, 2 Vet.App.
> 492 (1992).\] Moreover, the veteran has not cited any medical texts or
> authorities to support his theory. Since there is no medical authority
> to support his position, the incidental evidence showing that he was
> treated for an unspecified pre-existing disorder in August 1944 and
> that his basic training was abbreviated is not relevant as those
> circumstances are germane to the issue of service incurrence only if
> one accepts his medically unsupported position that trauma caused the
> varicocele.

R. at 11-12. The Board also found that the preponderance of the evidence
was against the appellant\'s alternative claim that any preexisting
varicocele was aggravated by service. R. at 12.

*Thurber,* 5 Vet.App. at 126, requires that

> before the BVA relies, in rendering a decision on a claim, on any
> evidence developed or obtained by it subsequent to the issuance of the
> most recent \[Statement of the Case\] or \[Supplemental Statement of
> the Case\] with respect to such claim, the BVA must provide a claimant
> with reasonable notice of such evidence . . . and a reasonable
> opportunity for the claimant to respond to it.

In *Austin*, this Court dealt with the same issue\--a letter advising
the appellant of the BVA\'s intended reliance on evidence developed
after the issuance of the last Statement of the Case and its requirement
that good cause be shown to submit additional evidence. As this Court
explained in *Austin*, the appellant\'s right to submit evidence under
*Thurber* cannot be premised on a preliminary showing of \"good cause.\"
*Austin*, 6 Vet.App. at 551. As in *Austin,* the BVA\'s decision here
violates the fair process principle because it relies on evidence
obtained in \"a process that does not ensure an impartial opinion.\"
*Id.* at 552.

The Board suggests in its decision that the appellant\'s testimony
regarding in-service onset of his condition is not credible because he
has not supported that testimony with medical documentation.

> Since there is no medical authority to support his position, the
> incidental evidence showing that he was treated for an unspecified
> pre-existing disorder in August 1944 and that his basic training was
> abbreviated is not relevant as those circumstances are germane to the
> issue of service incurrence only if one accepts his medically
> unsupported position that trauma caused the varicocele.

R. at 12. Regarding the appellant\'s alternative claim that, if his
varicocele did preexist service, it was aggravated thereby, the Board
stated it did \"not find that the veteran\'s testimony is particularly
credible in view of the absence of records of treatment during the more
than three decades which elapsed during the time after his discharge
from service and his initial claim for service connection.\" R. at 12.
\"Nowhere do VA regulations provide that a veteran must establish
service connection through medical records alone.\" *Cartright v.
Derwinski*, 2 Vet.App. 24, 25 (1991); *see also Triplette v. Principi*,
4 Vet.App. 45, 49 (1993). Moreover, the Board does not even mention the
appellant\'s wife\'s statement. The Board is not free to ignore evidence
of record. *Webster v. Derwinski*, 1 Vet.App. 155, 159 (1991). Finally,
as the appellant points out in his motion for remand, VA failed to
follow the [VA Adjudication Manual,]{.smallcaps} (M21-1) Part III, para.
4.22(c)(2), which requires that

> If benefits were denied prior to May 18, 1990, and a case for which
> \[the Army Surgeon General\'s office (SGO)\] records may exist (Army
> veteran with service during the periods 1942-1945 or 1950-54) is
> encountered during normal processing, the regional office will reopen
> the claim on its own initiative to obtain any SGO records.

The record on appeal does not show that VA attempted to obtain any SGO
records. Also, where, as here, service medical records have been
destroyed or lost, the Board has a duty to advise the claimant to obtain
other forms of evidence. *Dixon v. Derwinski*, 3 Vet.App. 261, 263
(1992) (In \"fire-related\" cases, the M21-1 instructs VA personnel to
assist the claimant in obtaining evidence from alternate or collateral
sources and includes a list of appropriate alternate forms of evidence
to be considered in lieu of missing service medical records.); *see also
Layno v. Brown*, 6 Vet.App. 465, 469 (1994). The Board failed to do
this.

**III. CONCLUSION**

Accordingly, the Board\'s decision regarding denial of service
connection for a varicocele is VACATED and the matter REMANDED for
further adjudication. On remand, the appellant will be free to submit
additional evidence and argument, and the Board must seek any other
evidence it thinks is necessary to the resolution of the appellant\'s
claim. *Quarles v. Derwinski*, 3 Vet.App. 129, 141 (1992).

[^1]: Judge Mankin was assigned and participated in this case, but died
    before its final disposition.