UNITED STATES COURT OF VETERANS APPEALS

No. 92-1235

Cornwallis Dean, II, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Decided December 20, 1995 )

Lisabeth Wagner and L.N. Divinsky were on the pleadings for the
appellant.

Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General
Counsel; Andrew J. Mullen, Deputy Assistant General Counsel; and Michael
P. Butler were on the pleadings for the appellee.

Before MANKIN, HOLDAWAY, and STEINBERG, Judges.

STEINBERG, Judge: The appellant, veteran Cornwallis Dean, II, appeals a
June 30, 1992, BVA decision denying entitlement to service connection
for Huntington\'s chorea and vascular headaches. Record (R.) at 3-9. The
appellant, through counsel, has filed a brief urging reversal of the
Board\'s decision; the Secretary has filed a motion for summary
affirmance. Summary disposition is not appropriate here because the
outcome of the case is reasonably debatable. See Frankel v. Derwinski, 1
Vet.App. 23, 25-26 (1990). By order dated May 16, 1994, the Court stayed
proceedings in this appeal pending a decision in the case of Edenfield
v. Brown, No. 92-1263. Recently, the Court issued its opinion in that
case. Edenfield v. Brown, \_\_ Vet.App. \_\_, No. 92-1263 (Nov. 1, 1995)
(en banc). For the reasons that follow, the Court will affirm the
Board\'s decision.

I. Background

The veteran served on active duty in the United States Army from
September 1977 to September 1980. R. at 68. The report of his June 1977
pre-enlistment examination described his health as \"excellent\". R. at
13-16. According to service medical records (SMRs) from Madigan Army
General Hospital, in February 1978 he complained of \"cold x 1
h\[ou\]r\", headache, dizziness, and coughing; the examiner diagnosed
\"flu syndrome\". R. at 18-19. An August 1980 SMR noted a complaint of
lower back pain following a fall, but the examiner noted \"no
neuro\[logical\] s\[ymptoms\] or physical findings\". R. at 48. That
same month, the veteran indicated that he did not wish to undergo a
separation medical examination, and no examination was performed. R. at
47.

A February 1985 Army National Guard enlistment examination report noted
no abnormalities. R. at 51-52. On an accompanying questionnaire, the
veteran stated that he had suffered from \"\[d\]izziness or fainting\"
and wrote: \"I am \[in\] good condition\". R. at 49. The examiner wrote:
\"When plays too vigorously (e.g. basketball) he gets dizzy and
disoriented momentarily.\" R. at 50. A June 1987 National Guard SMR
stated: \"P\[atien\]t thinks he has diabetes\[-\]like symptoms or low
blood sugar. \[He\] feels flushed intensity for over 2 y\[ea\]rs. He
hasn\'t gained w\[eigh\]t & has chest pains with numb feet.\" R. at 55.

According to a January 1991 Department of Veterans Affairs (VA) Medical
Center (MC) neurology progress note, the veteran was seen following
complaints of decreased coordination and decreased exercise capacity. R.
at 73. The progress note indicated that he had been seen \"in triage\"
in December 1990, at which time \"Bell\'s \[palsy\]\" and a family
history of Huntington\'s disease had been noted. (Bell\'s palsy is
facial paralysis; Huntington\'s disease, also known as hereditary
chorea, is \"a progressive disorder usually beginning in young to middle
age, consisting of a triad of choreoathetosis, dementia, and autosomal
dominant inheritance with complete penetrance\"; penetrance is the
\"frequency, expressed as a fraction or percentage, of individuals who
are phenotypically affected, among persons of an appropriate genotype.\"
Stedman\'s Medical Dictionary 1285, 333, 1320 (26th ed. 1995)
\[hereinafter Stedman\'s\].) The examiner wrote:

Noted \[decreased\] exercise early \[19\]90 \-- \[decreased\] ability to
climb/run up hills. Tendency to fall. Notes after shower feels dizzy \--
like \[sic\] \"pass out\" since \[19\]89. After exercise has difficulty
focusing vision. No actual LOC \[loss of consciousness\]. Double vision
began 1985/86 \-- saw \[doctor.\] ? Etiology\[.\] Diplopia
esp\[ecially\] after exercise/excitement. Also r\[ight\] face \"shakes\"
\[and\] l\[eft\] upper lip curls up under stress. \-- 1988/87. Legs
\"give out\" under him. Dad notes slurring of speech, ataxia \-- like
he\'s intoxicated. Twitching l\[eft\] eye. Memory \[decrease\] \-- loses
things. . . . When first came back from Wash\[ington\] \--
\"defensive\". . . .

R. at 73. (Diplopia is \"\[d\]ouble vision\"; ataxia is \"\[a\]n
inability to coordinate muscle activity during voluntary movement, so
that smooth movements occur.\" Stedman\'s at 489, 161.) In the margin,
the examiner wrote: \"1979 \-- diplopia\". R. at 73. The examiner stated
the following diagnostic impression: \"Family h\[istory of\]
Huntington\'s now with relatively clear indications of disease in
himself. \[Positive for a\]dventitious movements, difficulty ambulating,
memory problems, personality \[change\]s\". R. at 75. An undated but
apparently contemporaneous entry on the back of that report noted a
\"h\[istory\] of abn\[ormal\] movements and \[decreased\] memory during
past few years\" and a decrease in normal movement of the right face
probably due to a childhood injury. R. at 76.

In February 1991, the veteran filed with a VA regional office (RO) an
application for VA disability compensation or pension, listing his
disabilities as Huntington\'s chorea, dizziness, disorientation, and
headaches. R. at 69-72. Although he stated that all of these
disabilities had begun in June 1978, he indicated that he had received
treatment for them in April and May 1978 at the Tacoma, Washington, Army
hospital and between January 1979 and September 1980 at the Fort Lewis,
Washington, Army dispensary. R. at 70. He also indicated that he had
received treatment for all four claimed disabilities at the Walla Walla,
Washington, VAMC between June 1982 and January 1989 and at the San
Diego, California, VAMC starting in January 1991. He also gave the names
and addresses of three individuals who, he asserted, had knowledge,
starting in June 1978, of his having these disabilities. R. at 71.

According to a March 1991 VA neuropsychological examination report, the
veteran \"stated that he experienced some dizziness and headaches while
in the Army, but that he was unsure if these symptoms were related to
Huntington\'s.\" R. at 79. It further stated: \"During the past year, he
noticed fatigue, disequilibrium, dizziness and tingling in his arms. . .
. He denied any history of head trauma or other neurological
disorders.\" R. at 79-80. In conclusion, the two examiners stated that
the veteran\'s neuropsychological test results were \"consistent with
his diagnosis of early Huntington\'s disease\". R. at 84.

In a March 1991 VA outpatient consultation report, the examining
physician stated:

The patient\'s major complaints are dizziness and incoordination, which
he states began about 1978. . . . He also gets headaches. They also
began in 1978 and involve the right temple and occasionally the left
temple . . . . He was told in 1991, he says, by the VA Hospital in \[San
Diego\] that he has Huntington\'s Chorea. . . . I do not have those
records available to me and they should be gotten to confirm the
diagnosis and the workup and the assuredness of the diagnosis.

R. at 88. The physician recorded impressions of \"Huntington\'s Chorea
(by history)\", \"Headaches, in vascular nature\", and \"Incoordination
and dizziness, secondary to either one or other neurologic disorder to
be determined\". R. at 88-89.

In a May 1991 rating decision, the VARO denied service connection for,
inter alia, \"Huntington\'s chorea (also claimed as
dizziness/disorientation)\" and vascular headaches. R. at 98-99. In May
1991, the veteran filed a Notice of Disagreement. R. at 102. In August
1991, he testified under oath at a personal hearing at the San Diego RO
that from 1978 through 1980 he had gone to the dispensary and sick-call
bay many times to complain of \"the dizziness and \[his\] headaches, and
everything else\" (R. at 117); that while in service he had experienced
migraine headaches and high-pitched sound in his ears (ibid); that he
had been \"in good physical condition\" and had performed vigorous
workouts in service and that those workouts had become more difficult
for him during service (R. at 118); and that he had run about three
miles per day in service (ibid). When asked whether he had ever stumbled
or fallen, he said: \"My problem was coordination. My equilibrium could
have been thrown off, but I was young then and played it off. I kind of
brushed it aside. I didn\'t know what I know today.\" Ibid.

He further testified that while in service he had become dizzy on
several occasions, recalling one time when he couldn\'t play football
due to dizziness, disorientation, and double vision, and that he had
reported that episode to the dispensary. R. at 120. He stated that he
had gone to the sick bay at least 20 times for double vision and
dizziness; that military doctors had given him medication although he
did not know what the medication was; and that he remembered taking much
aspirin. R. at 127. He testified that he didn\'t understand why his SMRs
did not document his symptoms because a doctor at Madigan Army General
Hospital had told him that, because his mother had Huntington\'s
disease, he had a \"50/50 chance\" of developing the disease, but that
the doctor \"didn\'t elaborate a lot. He didn\'t know. . . . He didn\'t
want to tell me.\" R. at 122. The veteran said that when he had gone to
sick bay in service \"I didn\'t want to admit to myself that I was
suffering from Huntington. . . . I couldn\'t explain the dizziness and
the headaches. . . . I did have the symptoms.\" R. at 126. When asked
whether his symptoms had started in service, he testified: \"They
increased. They might not have started in the military, but they
increased.\" Ibid.

In a concluding statement, the veteran\'s representative stated at the
hearing:

In this veteran\'s case, symptoms were actually present, apparently,
before service, but \[in\] a very slight way. They were aggravated in
his last year of service to where he went to sick bay over 20 times,
where he became paranoid, disoriented, \[and experienced\] double
vision. . . . \[T\]he symptoms he had definitely show that this
condition was present, in fact, before service, and it was aggravated by
military service.

R. at 129. The representative concluded by asking the hearing officer to
\"grant service connection by aggravation.\" R. at 130.

In an August 1991 decision, the hearing officer denied service
connection for Huntington\'s chorea and vascular headaches. R. at 132.
In an October 1991 statement, the veteran\'s representative acknowledged
that \"there were no symptoms or signs of Huntington\'s \[c\]horea
documented either during, or for a significant period of time following
the veteran\'s military service\", but, the representative argued,
\"this void in the medical records does not present any irreconcilable
inconsistency with the veteran\'s evidence.\" R. at 136-37.

In the June 30, 1992, BVA decision, here on appeal, the Board denied
entitlement to service connection for Huntington\'s chorea and vascular
headaches. At the outset of its decision, the Board found that the
claims were well grounded and that \"all relevant facts necessary to an
equitable disposition of the appeal have been obtained\". R. at 4-5.
With respect to Huntington\'s chorea, the Board noted that SMRs
documented that on two occasions in 1978 and two occasions in 1979 the
veteran had been treated for influenza and viral syndrome, and that SMRs
were negative for any \"complaints, findings or manifestations of\"
Huntington\'s chorea. R. at 5. The Board noted that the January 1991 VA
examination report recorded the veteran\'s statement that he had
experienced double vision in 1979; that he had felt \"like he was about
to pass out\" in 1985-86 and had other symptoms starting in 1987; that
at the time of the March 1991 VA examination the veteran had reported
that episodes of dizziness and lack of coordination had begun in 1978;
and that at the August 1991 personal hearing he had testified that he
had experienced headaches, dizziness, loss of coordination, double
vision, and a memory problem in service. R. at 6.

The Board\'s decision stated, in relevant part:

\"Huntington disease is a progressive hereditary disorder that usually
appears in adult life. The symptoms usually appear between 35 and 40
years of age. However, the range of age is broad, with cases recorded as
early as age 5 and as late as age 70. The three characteristic
manifestations of the disease are movement disorder, personality
disorder and mental deterioration. In general, the onset is insidious
beginning with clumsiness, dropping of objects, fidgetiness,
irritability, slovenliness and neglect of duties progressing to frank
choreic movements and dementia. The disease tends to run its course over
a period of 15 years, more rapidly in those with an earlier age of
onset.\" Merritt\[\'\]s Textbook of Neurology, Rowland, Lewis P., Chap.
113. p. 647-650, 8th ed.

The symptoms identified above were not shown in service and were not
shown by the objective evidence of record until many years after service
discharge.

R. at 7.

As to the veteran\'s sworn testimony that he was treated on numerous
occasions in service for symptoms alleged to be consistent with
Huntington\'s chorea, the Board found that the SMRs \"do not confirm
this testimony as to the number of times he was treated\" and that \"on
those occasions where symptoms alleged to be consistent with
Huntington\'s chorea were treated, a diagnosis of an acute disorder such
as influenza or viral syndrome was noted.\" R. at 7. The Board found
that the first diagnosis of Huntington\'s chorea was in January 1991, at
which time the veteran had indicated that his symptoms had begun in
1985, and the Board concluded that the history the veteran had reported
in January 1991 \"for the purpose of receiving medical treatment is of
greater probative value than the testimony at the personal hearing in
August 1991\[ \] and the arguments advanced for the purpose of securing
disability compensation.\" R. at 7-8. Based on a lack of in-service
findings of the disease and a lack of evidence of continuity of
symptomatology between discharge and 1985, the Board concluded that the
preponderance of the evidence was against the claim. R. at 8.

With respect to vascular headaches, the Board found that the SMRs did
not reflect any complaints, findings, or manifestations of vascular
headaches and that although the veteran had complained of headaches in
1978 and 1980 \"those complaints were related to acute disorders
diagnosed at that time.\" Ibid. The Board stated that the first
post-service report of headaches was at the March 1991 VA examination,
when the veteran had reported a history of headaches since service. The
Board concluded that there was no objective evidence to relate the March
1991 diagnosis of vascular headaches to service, and denied the claim.
Ibid.

II\. Analysis

In his pleadings, the appellant, through counsel, presents substantial
arguments that the Board\'s decision contains numerous errors; inter
alia, he argues that the Board failed to provide an adequate statement
of reasons or bases for its decision as required by 38 U.S.C. §
7104(d)(1) and Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990); that
the Board failed properly to apply the benefit-of-the-doubt rule as
required by 38 U.S.C. § 5107(b); that the Secretary violated the
provisions of 38 U.S.C. § 5107(a), the statutory duty to assist, by not
seeking to obtain medical records relating to the veteran\'s admissions
to both sick bay and Madigan General Hospital and service and medical
records of his National Guard service; and that the Board\'s quotation
of a medical-treatise definition of Huntington\'s chorea violated this
Court\'s holding in Thurber v. Brown, 5 Vet.App. 119, 126 (1993). Brief
at 4-6; Reply Brief at 2-3. The Court need not rule on these alleged
errors, however, because, as set forth in part II.A., below, the Court
holds that the appellant\'s claims were not well grounded.

A. Well-Grounded Claim Requirement

Section 5107(a) of title 38, U.S. Code, provides in pertinent part:
\"\[A\] 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.\" The Court has defined a well-grounded claim as follows:
\"a plausible claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only possible to
satisfy the initial burden of \[section 5107(a)\].\" Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). In addition, the Court held in
Tirpak v. Derwinski, that to be well grounded a claim must be
accompanied by supportive evidence and that such evidence \"must
\`justify a belief by a fair and impartial individual\' that the claim
is plausible.\" Tirpak, 2 Vet.App. 609, 611 (1992) (quoting section
5107(a)). Where the determinative issue involves either medical etiology
or a medical diagnosis, competent medical evidence is ordinarily
required to fulfill the well-grounded-claim requirement of section
5107(a); where the determinative issue (such as the recounting of
symptoms) does not require medical expertise, lay testimony by itself
may suffice. See Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)); Magana v. Brown, 7
Vet.App. 224, 227-28 (1994); Espiritu v. Derwinski, 2 Vet.App. 492,
494-95 (1992). The determination whether a claim is well grounded is a
conclusion of law subject to de novo review by the Court under 38 U.S.C.
§ 7261(a)(1). See Grivois v. Brown, 6 Vet.App. 136, 139 (1994);
Grottveit, supra.

When a claimant submits a well-grounded claim, the Secretary is required
under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts
pertinent to the claim. See 38 C.F.R. § 3.159 (1994); Littke v.
Derwinski, 1 Vet.App. 90, 91-92 (1990). The Court\'s jurisprudence
clearly establishes that the Secretary\'s duty to assist under section
5107(a) does not attach until the claimant has submitted a well-grounded
claim. E.g., Caluza v. Brown, 7 Vet.App. 498, 512-13 (1995); Grivois, 6
Vet.App. at 140; Grottveit, supra.

In the instant case, with respect to the Huntington\'s chorea claim,
because the determinative issue involves questions of medical etiology
\-- whether Huntington\'s chorea was incurred in service or, if it
preexisted service, whether it was aggravated by service \-- \"competent
medical evidence to the effect that the claim is \`plausible\' or
\`possible\' is required\". See Caluza, Grivois, and Grottveit, all
supra. Here, although the appellant has presented competent medical
evidence that he currently suffers from Huntington\'s chorea, he has
failed to present medical evidence linking either the onset or
aggravation of that disability to his period of service. The appellant
testified under oath that he had experienced headaches, dizziness, loss
of coordination, double vision, and a memory problem in service. As a
lay person, he is competent to testify as to the symptoms he experienced
in service, but he is not competent to opine as to a link between those
symptoms and his present diagnosis. See Heuer, Magana, Grottveit, and
Espiritu, all supra.

The appellant also testified that a physician at Madigan Army General
Hospital had informed him while he was in service that he had a \"50/50
chance\" of developing Huntington\'s chorea. However, the Court has held
that a \"layman\'s account, filtered as it was through a layman\'s
sensibilities, of what a doctor purportedly said is simply too
attenuated and inherently unreliable\" to constitute the medical
evidence required to render a claim well grounded under Grottveit.
Robinette v. Brown, 8 Vet.App. 69, 77 (1995). Furthermore, even if the
physician\'s statement were of record \-- as opposed to being filtered
through a lay person \-- it still would be insufficient to render the
claim well grounded because it would be an opinion only as to the
likelihood of the veteran\'s subsequently developing Huntington\'s
chorea, not an opinion that the disability had its onset in, was
aggravated by, or would otherwise be related to the appellant\'s
condition in service. Cf. Robinette, 8 Vet.App. at 77-79 (holding that
38 U.S.C. § 5103(a) imposes obligation on Secretary to notify claimant
of evidence needed to complete incomplete application for benefits and
that nature and extent of duty depends on evidence submitted in support
of particular claim and of which VA has notice).

Similarly, because the appellant\'s vascular-headache claim involves a
determination of medical etiology, competent medical evidence that the
claim is plausible is required. Although the February 1978 SMR entry is
competent medical evidence that he had complained of headaches on one
occasion in service, and although the veteran currently has a diagnosis
of vascular-headache disorder, there is no medical evidence of record
linking either that single headache episode specifically or the
appellant\'s service generally to his present headache disorder. See
Heuer, Magana, Grottveit, and Espiritu, all supra.

The Court holds that the appellant failed to submit a well-grounded
claim under 38 U.S.C. § 5107(a) as to either Huntington\'s chorea or
vascular headaches and that VA was not, therefore, required to afford
him the duty to assist (see Tirpak, supra) or to carry his claims to
full adjudication (see Heuer, Magana, Grottveit, and Espiritu, all
supra).

Although the BVA erred in finding that the claims for service connection
for Huntington\'s chorea and vascular headaches were well grounded, the
error did not result in prejudice to the appellant. See 38 U.S.C. §
7261(b) (Court shall take due account of rule of prejudicial error);
Edenfield, \_\_ Vet.App. at \_\_, slip op. at 10. The outcome,
disallowance of the claim, would be the same whether VA had treated the
claim as not well grounded or, as in this case, adjudicated it on the
merits. The appropriate remedy is therefore to affirm the BVA decision
as to the disallowance of these claims. Id. at 7-8.

B. Asserted Adjudication Errors

In Thurber, the Court held:

\[B\]efore 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 \[Statement of the Case (SOC)\] or \[Supplemental SOC\] with
respect to such claim, the BVA must provide a claimant with reasonable
notice of such evidence and of the reliance proposed to be placed on it
and a reasonable opportunity for the claimant to respond to it. If, in
the course of developing or obtaining or attempting to so develop or
obtain such evidence, the BVA becomes aware of any evidence favorable to
the claimant, it shall provide the claimant with reasonable notice of
and a reasonable opportunity to respond to the favorable evidence, and
shall in its decision provide reasons or bases for its findings with
respect to that evidence.

Thurber, 5 Vet.App. at 126.

In the present case, the record contains no evidence that the Board
provided the appellant with notice of its intent to rely upon the quoted
excerpt from Merritt\'s Textbook of Neurology. The Board\'s material
reliance in its decision upon a medical treatise to which it had not
given the appellant an opportunity to respond appears to have violated,
in a way that would generally be considered prejudicial, the procedural
requirements set forth in Thurber. It also appears to have violated
Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992), in not providing the
context for the quotation. The Court holds, however, that, because the
appellant failed to submit a well-grounded claim and thus was not
entitled to receive an adjudication of his claim on the merits, any
Board Thurber or Hatlestad violations were not prejudicial to him. See
38 U.S.C. § 7261(b); see also White (Frank E.) v. Brown, 6 Vet.App. 247,
252 (1994) (where claimant fails to submit new and material evidence to
reopen claim under 38 U.S.C. § 5108, Board\'s Thurber error is
nonprejudicial and does not require remand); cf. Yabut, 6 Vet.App. at 85
(\"failure of the BVA to provide appellant with \[Thurber-required\]
notice and an opportunity to respond to the medical treatises
superfluously cited in its decision constitutes \[nonprejudicial\]
error\"). The same conclusion obtains as to any deficiencies in the
Board\'s statement of reasons or bases, including consideration of the
benefit-of-the-doubt rule. See Soyini v. Derwinski, 1 Vet.App. 540, 546
(1991); see also Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74
(1993) (holding that \"\[i\]n a case where there is significant evidence
in support of an appellant\'s claim . . . , the Board must provide a
satisfactory explanation as to why the evidence was not in equipoise\"
so as to require application of benefit-of-the-doubt rule).

III\. Conclusion

Upon consideration of the record and the pleadings of the parties, the
Court holds that the appellant has not demonstrated that the BVA
committed error that would warrant remand or reversal under 38 U.S.C. §§
5107(a), 7252, and 7261. The Court grants the Secretary\'s motion for
summary affirmance (except to the extent that it urges summary action),
and affirms the June 30, 1992, BVA decision with respect to its
disallowance of the two claims.

AFFIRMED.