BVA Case 11-1891: Depression

We conclude that the Veterans Court, like the Board, may well have applied an incorrect legal standard under the statute that provides for medical examinations in specified circumstances as part of the VA’s duty to assist a claimant, 38 U.

” In February 2011, the Board issued a decision finding that the Secretary’s duty to assist had been satisfied and that Mr.

Dellosa had “provided state- ments that his bipolar disorder is related to service,” “the record is silent for a nexus between [his] current disabili- ties and his active service” because “he is not competent to provide evidence of a diagnosis or etiology of a condi- tion.

” The Veterans Court repeated the Board’s finding that “‘the record is silent for a nexus between [Mr.

In Waters, we concluded that the Board’s findings of “‘no competent evidence of a nexus’” and “‘no competent medical evidence or record’ showing the necessary nexus” “appeared to use the evidentiary standard in subsection A in applying subsection B[,] thus subjecting the veteran to a more onerous standard of proof than the statute provides.

In Colantonio, we reviewed statements from the Vet- erans Court that “lay testimony ‘cannot provide the requisite medical nexus between service and the appel- lant’s current back disability,’ and that a lay person ‘is not competent to opine on matters requiring medical knowledge such as etiology of a condition or nexus.

We determined that those assertions could “be interpreted as meaning that a veteran’s lay testimony can never be sufficient in itself to satisfy the nexus re- quirement in section 5103A(d)(2)(B),” which would be incorrect.

Because the Veterans Court “may have overstated the extent to which competent medical evidence is required to make the minimal show- ing of nexus required by subparagraph B,” we vacated and remanded for reconsideration “in light of the proper interpretation of section 5103A(d)(2).