Reuben T. Grissette v. R. James Nicholson, Secretary of Veterans Affairs

Presently before the court is the appeal of Reuben T. Grissette, a Korean War
veteran, from the final judgment of the Court of Appeals for Veterans Claims ("CAVC")
affirming a determination by the Board of Veterans Appeals ("Board") that
Mr. Grissette's previously-denied claim for service connection should not be reopened
based on new and material evidence. Because this appeal ultimately presents a
disagreement over factual determinations, we dismiss.

I

Reuben T. Grissette served in active duty in the United States Army for
approximately two years from April 1953 until April 1955. Prior to his entry into service, Mr. Grissette states that he was in excellent physical health, and that he was a
participant in many organized sports, including track, football, and boxing. On April 20,
1953, the Army gave Mr. Grissette a physical examination and the record of that exam
shows a clean bill of health. In the autumn of 1954, however, Mr. Grissette was treated
by Army doctors for asthma. The treatment notes reflect that Mr. Grissette reported
having asthma for the past ten years, and that his symptoms were "[w]orse around this
time of year." Upon his honorable discharge in April 1955, the Army gave Mr. Grissette
another physical examination, and the record of that exam notes that he suffered from
"asthma and shortness of breath."

Later in 1955, shortly after his release from active duty, Mr. Grissette was
hospitalized for intense shortness of breath. The clinical record written by his treating
physician reflects that Mr. Grissette reported having seasonal asthma "for about the
past five years and suffers exacerbations in June or July of each year," but that "[h]e is
relatively free of attacks in between times." Mr. Grissette then filed a claim with the
Veterans Administration ("VA") for service connection based on his asthma, which he
alleged that he had acquired while serving in active duty. Citing Mr. Grissette's selfreported
history reflected in his medical records of having asthma for at least the past
five years, however, the VA's regional office ("RO") in Chicago rejected his claim as
being unrelated to his military service. Mr. Grissette did not appeal the RO's decision.

Mr. Grissette was seen by another physician, Dr. Walter K. Grigg, in 1957.
Dr. Grigg reported in an affidavit that Mr. Grissette complained of "[a]sthma
intermittently for 3 years," and that Mr. Grissette "[n]ever had asthma prior to its onset
while in service." Based on Dr. Grigg's affidavit (and possibly other evidence as well), Mr. Grissette subsequently attempted to reopen his claim for service connection in
1957, 1959, and 1960. The RO refused on each occasion. Mr. Grissette appealed
none of these decisions.

Mr. Grissette again attempted to reopen his claim for service connection in 2000
based on new and material evidence, including, inter alia, statements submitted by both
his cousin and his sister-in-law. Mr. Grissette's cousin, Reverend Edward Grissette,
explained in his statement that he had "known [Mr. Grissette] all his life during his
childhood and he was in good health," and that Mr. Grissette "was active in athletics
(boxing, football, track, etc.) before entering the military." Rev. Grissette further
explained that he was "certain that [Mr. Grissette] did not have bronchial asthma prior to
being drafted into the military otherwise his physical examination during induction
should have revealed it," and also that "[i]mmediately following discharge when he
came home he complained of shortness of breath which was diagnosed by his
physician as bronchial asthma." Mr. Grissette's sister-in-law, Vivian Grissette, gave a
statement along similar lines: "Prior to entering the Army in April 1953 [Mr. Grissette] did
not have Bronchial Asthma, however when he returned home or shortly thereafter he
was seen by a doctor and diagnosed with asthma and hospitalized . . . ." In a parallel
proceeding also initiated by Mr. Grissette in 2000, he challenged the various rating
decisions during the period of 1955-60 on the basis of clear and unmistakable error.

The RO again declined to reopen Mr. Grissette's claim. With respect to new and
material evidence, the RO briefly explained in a written decision dated August 30, 2000
that the statements of Rev. Grissette and Mrs. Grissette "do[] not constitute new and
material evidence because [they] do[] not establish a chronic condition was incurred in or aggravated by service." And with respect to clear and unmistakable error, the RO
concluded that although Mr. Grissette "was certainly qualified to provide testimony as to
the history of the symptomatology," "[t]he fair preponderance of evidence shows service
connection for allergic asthma originally claimed as a chest condition is not warranted
because the symptoms of the condition existed prior to service and the evidence of
record does not show aggravation of the condition during active military service."
Mr. Grissette appealed these decisions to the Board.

Prior to the Board's consideration of his appeal, however, the RO readjudicated
Mr. Grissette's request to reopen his claim,1 but arrived at the same conclusion as it had
in 2000. The RO explained that although the statements of Rev. Grissette and
Mrs. Grissette constituted new evidence, the assertions contained therein were
duplicative of Dr. Grigg's assertions, which had already been found to be "contradicted
by clear and credible evidence that [Mr. Grissette's] asthma was present prior to
service." The RO continued, characterizing the new evidence as merely being
"statements by family members made many years after the fact who may or may not
have known about a relatively mild and episodic health condition of [Mr. Grissette] prior
to service." As such, the RO concluded that these statements did not justify reopening
the claim on the basis of new and material evidence. The RO also acknowledged the
existence of "a dispute about whether or not [Mr. Grissette's] asthma actually began
prior to service, [but that] there was evidence [on] file which supported the conclusion that it had." Thus, in the RO's opinion, there was no justification for reopening the claim
on the basis of clear and unmistakable error because "the alleged error involved an
exercise of judgment which cannot be characterized as undebatably erroneous."

Before the Board, Mr. Grissette was granted the opportunity to offer his own live
testimony to supplement the allegedly new and material evidence he had submitted to
the RO. In the course of testifying, Mr. Grissette reiterated his assertions that he
showed no symptoms of asthma until 1954, recounted his extensive exposure to
"various chemicals, fuels, [and] diesel fuels" while in the military, and explained that the
statements in his medical records as to his long history of asthma were simply
"mistake[s]." Mr. Grissette also submitted to the Board a letter from a Notary Public
attesting to the fact that two men - a Mr. Obbie Rumley Sr. and a Mr. John Massey -
stated on August 25, 2003, that they worked with Mr. Grissette as longshoremen prior to
his entry into service in 1953, and that they "did not observe or notice any heavy
breathing difficulties or signs of abnormal breathing on the part of [Mr. Grissette]" those
many years ago.2

Upon its consideration of the newly-submitted evidence - the statements of
Mr. Grissette's relatives, the letter from the Notary Public, and Mr. Grissette's own
testimony - the Board explained in an October 8, 2004 written opinion that Mr. Grissette's submissions were "duplicative of evidence already of record." Moreover,
the Board explained,

Insofar as the statements attempt to refute the conclusion of the RO that
the veteran suffered from asthma prior to service, they are insufficient to
support the claim. It is now well-established that a layperson without
medical training, such as the veteran, is not qualified to render a medical
opinion regarding the etiology of disorders and disabilities. . . . Because
there is no competent medical evidence that the veteran's preexisting
asthma was aggravated in service, the new evidence is not so significant
that it must be considered in order to fairly decide the merits of the claim.
In the absence of such evidence, the claim may not be reopened.

Accordingly, the Board rejected Mr. Grissette's attempt to reopen his claim on the basis
of new and material evidence. The Board also concluded, for largely the same reasons
as the RO, that there had been no clear and unmistakable error in previously denying
his claim for service connection.

Mr. Grissette then appealed to the CAVC, where he challenged only the Board's
rejection of his personal testimony and the statements of his relatives as new and
material evidence. On May 30, 2006, the CAVC affirmed the Board's decision, and in
so doing, observed:

Mr. Grissette asserts that his personal statement and the lay testimony of
his relatives were offered to provide evidence that he did not have asthma
prior to service. Rather than address the observable symptomatology,
however, the statements provide assertions as to when Mr. Grissette first
had asthma. . . . The Board correctly concluded that Mr. Grissette and
his relatives were not competent to state whether or not Mr. Grissette had
asthma at any particular time, and that such statements were not
probative.

Mr. Grissette now appeals to this court, asserting jurisdiction pursuant to
38 U.S.C. § 7292

II

By statute, Congress has explicitly directed the VA to reopen a veteran's
previously-denied claim for service connection "[i]f new and material evidence is
presented or secured with respect to [that claim]." 38 U.S.C. § 5108. In so doing, the
VA must "consider all information and lay and medical evidence of record." 38 U.S.C.
§ 5107(b) (emphasis added). See also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a);
38 C.F.R. § 3.307(b); Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006).
Pursuant to VA regulations, competent lay evidence is defined as follows:

Competent lay evidence means any evidence not requiring that the
proponent have specialized education, training, or experience. Lay
evidence is competent if it is provided by a person who has knowledge of
facts or circumstances and conveys matters that can be observed and
described by a lay person.

38 C.F.R. § 3.159(a)(2). New evidence need not be considered, however, if it is merely
duplicative of evidence already in the record. See 38 C.F.R. § 3.156(a) ("New and
material evidence can be neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought to be reopened, and must raise
a reasonable possibility of substantiating the claim.").

This court's jurisdiction to hear appeals from the CAVC is strictly limited to
questions of law; we have no power to 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. Given this narrow standard of review, Mr. Grissette
argues that the CAVC and the Board erred as a matter of law by misinterpreting the
relevant statutes and regulations in determining that he had not submitted new and material evidence.3 In particular, Mr. Grissette contends that the CAVC and the Board
discounted the lay evidence he submitted due to the erroneous belief that such
evidence is legally incompetent to prove the timing of observable symptoms of his
asthma. In other words, Mr. Grissette believes he was wrongfully precluded from using
his new lay evidence to demonstrate that he exhibited symptoms of asthma only after
he entered the military. Mr. Grissette therefore urges us to reverse and remand for a
full consideration of his new evidence.

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