BVA Case 98-772: Back

In a rating decision of November 1994, the VA regional office (RO) confirmed and continued the denial of the appellant's claim for service connection for residuals of a head injury on the basis that no new and material evidence had been submitted.

On April 8, 1998, the Board determined that the preponderance of the evidence was against the appellant's claim for service connection for residuals of a head injury with syncope and possible brain lesion and denied the claim.

The Board then denied the appellant's claim because it found that "the preponderance of the evidence [was] against the claim for service connection.

§ 1154(b) related only to the question of service incurrence, 'that is, what happened then -- not the questions of either current disability or nexus to service .

Moreover, in its most recent decision addressing section 1154(b), the Court recognized that the provisions of this section "do not provide a substitute for medical nexus evidence, but rather serve only to reduce the evidentiary burden for combat veterans with respect to the second Caluza requirement, the submission of evidence of incurrence or aggravation of an injury or disease in service.

Indeed, in Wade, this Court recognized that a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b) and Collette, must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability as required by Caluza.

Section 1154(b) necessarily focuses upon past combat service and, for this reason, it does not constitute a substitute for evidence of current disability, causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service.

The Secretary, relying upon Caluza and its progeny, argues that the "clear and convincing evidence to the contrary" provision of § 1154(b) applies only to the service incurrence element of a claim and that it is inapplicable to the current disability and nexus elements.