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 Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, for respondent-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 Court 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”) finding 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 Veterans Court ignored the 

precedent of this court and incorrectly interpreted 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 Army from 1967 to 1972, including combat 

service in Vietnam. CAVC Op. at 1. Medical records showed that Mr. Davidson 

suffered from anxiety both before and during his service. Id. at 1-2. On July 8, 1973, 

Mr. Davidson drowned while swimming with his 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 death 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 natural causes. J.A. 58. 

In 1975, Ms. Davidson submitted an initial claim for entitlement to dependency 

and indemnity compensation, death 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 was not likely that Mr. Davidson committed 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 producing 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 

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testimony and concluded that Ms. Davidson was “not competent to provide a probative 

(persuasive) opinion on a medical matter such as the etiology of a disability.” Id. at 14. 

The Board therefore found that Mr. Davidson’s death was accidental rather than the 

result of suicide, and that his anxiety disorder did not cause or materially contribute to 

his death. Id. at 3. Thus, the Board denied entitlement to service connection. Id. at 15. 

The Veterans Court affirmed, reasoning that the Board’s determination as to the 

cause of Mr. Davidson’s death 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 eliminate the need for a valid medical 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. Davidson] that [Mr. Davidson’s] death was a result of a mental 

disorder do not provide this required medical nexus because, as the Board properly 

concluded, she is not competent to provide evidence that requires medical knowledge 

such as an opinion of the etiology 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 validity of a decision of the [Veterans] Court on a 

rule of law or of any statute or regulation . . . or any interpretation thereof (other than a 

determination as to a factual matter) that was relied on by the [Veterans] Court in 

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making the decision.” However, unless an appeal “presents a constitutional issue,” we 

“may not review (A) a challenge to a factual determination, 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 that 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 connection 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, campaign, 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 that 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 inapplicable. 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 added). Thus, in this 

case, § 1154(b) could be used only to show that Mr. Davidson incurred or aggravated a 

disease during service. As the Veterans Court correctly noted, the Board found an in2009-7075 4
service disease. Specifically, “the Board found that [Mr. Davidson] suffered from an 

anxiety disorder in service.” CAVC Op. at 5. The reason that Ms. Davidson’s claim for 

service connection was denied was 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 indemnity 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 considered as having been due to a service-connected 

disability when the evidence establishes 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 the question whether a particular disease 

or injury was incurred or aggravated in service—that is, what happened then—not the 

questions of either current disability or nexus to service . . . .”), aff’d, 78 F.3d 604 (Fed. 

Cir. 1996) (unpublished table decision). Because § 1154(b) concerns only whether a 

disease was incurred or aggravated in service—not whether the disease was the 

principal or a contributory cause 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 anxiety or depression incurred or aggravated 

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during service. Board Op. at 13-14. The Veterans Court affirmed the Board’s rejection 

of this evidence, held that “a valid medical opinion” was required to prove nexus, and 

concluded that Ms. Davidson was “not competent 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 interpreting 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 consistently held that “[l]ay evidence can be 

competent and sufficient to establish a diagnosis of a condition when (1) a layperson is 

competent to identify the medical condition, (2) the layperson 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) (footnote omitted). In fact, we have previously 

explicitly rejected the view of the Veterans Court that “competent medical evidence is 

required . . . [when] the determinative issue involves either medical 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 

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2009-7075 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 the 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.