## United States Court of Appeals for the Federal Circuit

2009-7075 BERTHA G. DAVIDSON, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Bertha G. Davidson , of Statesville, North Carolina, pro se. Michael D. Austin , Trial Attorney, Commercial Litigatio n Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for re spondent-appellee. With him on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Kirk T. Manhardt , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Rachael T. Shenkman , Staff Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Ronald M. Holdaway

## United States Court of Appeals for the Federal Circuit

2009-7075 BERTHA G. DAVIDSON, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims 07-2070, Judge Ronald M. Holdaway.

__________________________ DECIDED: September 14, 2009

__________________________ Before LINN, DYK, and PROST, Circuit Judges

. LINN, Circuit Judge

. Bertha G. Davidson (“Ms. Davidson”) appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”), which affirmed a decision of the Board of Veterans’ Appeals (“Board”) fi nding that Ms. Davidson’s husband did not die from a service-connected or compensable disability. In re Davidson , No. 02-16 322 (Bd. Vet. App. June 28, 2007) (“ Board Op. ”), aff’d, Davidson v. Shinseki , No. 07-2070 (Vet. App. Mar. 5, 2009) (“ CAVC Op. ”). Because the Vete rans Court ignored the precedent of this court and incorrectly interp reted 38 U.S.C. § 1154 to require a medical opinion to prove nexus between a veteran’s death and in-service disease, we vacate and remand.I. BACKGROUND Ms. Davidson is the surviving spouse of Grant J. Davidson (“Mr. Davidson”), who served on active duty in the United States A rmy from 1967 to 1972, including combat service in Vietnam. CAVC Op. at 1. Medical records showed that Mr. Davidson suffered from anxiety both befor e and during his service. Id. at 1-2. On July 8, 1973, Mr. Davidson drowned while swimming with hi s cousins at a pool that was part of a recreation facility operated by the company for which he then worked. Id. at 2; see also J.A. 111. Mr. Davidson’s deat h certificate listed the immediate cause of death as “[d]rowning,” and indicated that his death was “[a]ccidental,” rather than the result of suicide, homicide, or natur al causes. J.A. 58. In 1975, Ms. Davidson submitted an init ial claim for entitlement to dependency and indemnity compensation, deat h pension, and accrued benefits. CAVC Op. at 2. The Department of Veterans Affairs (“VA”) denied her claim, and the Board affirmed, concluding that the accidental drowning death of Mr. Davidson was not service connected. Id. Ms. Davidson applied to reopen the claim in 1999, and, in 2005, the Board reopened the claim for further development of the record concerning the cause of Mr. Davidson’s death. Id. A VA psychiatrist reviewed the medical record and concluded that it wa s not likely that Mr. Davidson co mmitted suicide, and that “it is not at least as likely as not that, at the time of his death, the veteran was suffering from [an] acquired psychiatric disability that had its clinical onset in the service and caused or contributed materially in pr oducing his demise.” J.A. 146. Ms. Davidson, however, submitted her own written and oral testimony to the Board, in which she stated her belief that Mr. Davidson had committed suicide as a result of a mental disorder related to his military service. Board Op. at 13-14. The Board credited the VA psychiatrist’s

2009-7075 2testimony and concluded that Ms. Davidson wa s “not competent to provide a probative (persuasive) opinion on a medical matter su ch as the etiology of a disability.” Id. at 14. The Board therefore found that Mr. Davidson’s death was a ccidental rather than the result of suicide, and that his anxiety disor der did not cause or ma terially contribute to his death. Id. at 3. Thus, the Board denied en titlement to service connection. Id. at 15. The Veterans Court affirmed, reasoning t hat the Board’s dete rmination as to the cause of Mr. Davidson’s deat h was not clearly erroneous. CAVC Op. at 4. The Veterans Court considered and rejected Ms . Davidson’s argument that the Board had erred by failing to accept her lay testimony concerning the cause of Mr. Davidson’s death. Id. at 5. In reaching its conclusion, the Veterans Court held that “lay statements . . . do not elimi nate the need for a valid medica l opinion establishing a nexus between [a veteran’s] death and the in-service disease.” Id. Applying this principle to Ms. Davidson’s testimony, the Veterans Court concluded that “[t]he lay statements by [Ms. Da vidson] that [Mr. Davidson’s] death was a result of a mental disorder do not provide this required medi cal nexus because, as the Board properly concluded, she is not compet ent to provide evidence that requires medical knowledge such as an opinion of the etio logy of the veteran’s death.” Id. Ms. Davidson appeals from that decision. This court’s jurisdiction over appeals from the Veterans Court is strictly limited by statute. Under 38 U.S. C. § 7292(a), we have jurisdiction to review a decision of the Veterans Court “with respect to the validit y of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interp retation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in

2009-7075 3making the decision.” However, unless an appea l “presents a constitutional issue,” we “may not review (A) a challenge to a factual det ermination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). II. DISCUSSION A. Section 1154(b) In her informal brief, Ms. Davidson argues t hat the Veterans Court misinterpreted 38 U.S.C. § 1154(b). See Informal Br. of Appellant ¶ 2. Section 1154( b) governs the treatment of lay evidence of service connec tion for veterans who engage in combat: In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, cam paign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact t hat there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b) (emphases added); see also 38 U.S.C. § 1154(a) (requiring “due consideration” to “all pertinent medical and lay evidence” even in cases not involving combat injury). We understand Ms. Davidson’ s argument to be that the Veterans Court misinterpreted § 1154(b) by failing to require that the Board consider her lay testimony about the cause of Mr. Davidson’s death. We conclude that § 1154(b) is inapplicab le. As the text of § 1154(b) makes clear, the section applies only to “lay or other evidence of service incurrence or aggravation of [an] injury or disease.” Id. § 1154(b) (emphasis ad ded). Thus, in this case, § 1154(b) could be used only to show t hat Mr. Davidson incurred or aggravated a disease during service. As the Veterans Court correctly noted, the Board found an in2009-7075 4service disease. Specifically, “the Board found that [Mr. Davids on] suffered from an anxiety disorder in service.” CAVC Op. at 5. The reason that Ms. Davidson’s claim for service connection was denied wa s not because Mr. Davidson did not incur a disease during service, but rather because of the perceived absence of a nexus between that disease and Mr. Davidson’s death. See 38 U.S.C. § 1310(a) (“When any veteran dies after December 31, 1956, from a service-connected or compensable disability , the Secretary shall pay dependency and indemnit y compensation to such veteran’s surviving spouse, children, and parents.” (emphasis added)); 38 C.F.R. § 3.312(a) (“The death of a veteran will be co nsidered as having been du e to a service-connected disability when the evidence establishe s that such disability was either the principal or a contributory cause of death .” (emphasis added)); see also Caluza v. Brown , 7 Vet. App. 498, 507 (1995) (“Section 1154(b) deals with t he question whether a particular disease or injury was incurred or aggravated in se rvice—that is, what happened then—not the questions of either curr ent disability or nexus to service . . . .”), aff’d , 78 F.3d 604 (Fed. Cir. 1996) (unpublished t able decision). Because § 1154( b) concerns only whether a disease was incurred or aggravated in se rvice—not whether the disease was the principal or a contributory c ause of death—the Board did not misinterpret § 1154(b) by declining to give controlling weight to Ms . Davidson’s testimony about Mr. Davidson’s cause of death. B. Section 1154(a) Ms. Davidson also argues that “the [Veteran’s] Court did not consider . . . competent lay or medical evidence.” See Informal Br. of Appellant ¶ 4. Ms. Davidson offered her own lay testimony to the Board suggesting that Mr. Davidson had committed suicide as the result of anxie ty or depression in curred or aggravated

2009-7075 5during service. Board Op. at 13-14. The Veterans Court affirmed the Board’s rejection of this evidence, held that “a valid medical opinion” wa s required to prove nexus, and concluded that Ms. Davidson was “not com petent to provide evidence that requires medical knowledge.” CAVC Op. at 5. We interpret Ms . Davidson’s argument on appeal to be that the Veterans Court erred in inte rpreting 38 U.S.C. § 1154(a) by requiring that nexus be proven with “a valid medial opinion.” In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. We have consis tently held that “[l] ay evidence can be competent and sufficient to establish a diagno sis of a condition when (1) a layperson is competent to identify the medical cond ition, (2) the layp erson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson , 492 F.3d 1372, 1377 (Fed. Cir. 2007) (f ootnote omitted). In fa ct, we have previously explicitly rejected the view of the Veterans Court that “competent medical evidence is required . . . [when] the determina tive issue involves either m edical etiology or a medical diagnosis.” Id. at 1376-77 (quoting Jandreau v. Nicholson , No. 04-1254, 2006 WL 2805545, at *3 (Vet. App. Aug. 24, 2006)) (alterations in original); see also Buchanan v. Nicholson , 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Ignoring this precedent, the Veterans Court in this case stated categorically that “a valid medical opinion” was required to establish nexus, and that Ms. Davidson was

2009-7075 62009-7075 7 “not competent” to provide testimony as to nexus because she was a layperson. CAVC Op. at 5. The Veterans Court’s holding in this case is in direct conflict with our precedent and must be vacated. We leave it to the Veterans Court, applying the principles set forth in Jandreau , to determine in the first instance on remand what further proceedings may be required. III. CONCLUSION For the foregoing reasons, we vacate t he judgment of the Veterans Court and remand to the Veterans Court for further proceedings consistent with this opinion. VACATED AND REMANDED COSTS Costs are awarded to Ms. Davidson.