Panel Application, Colvin v. Derwinski, 1 Vet.App. 171(1991); "Two-Step Analysis" of Lay Evidence, Robinson v. Shinseki,No. 2008-7069Federal Circuit

Excerpt from decision below:

The question before the panel is whether the Board's findings concerning the credibility of the appellant's lay statements conflict with the Court's holding in Colvin v. Derwinski, 1 Vet.App. 171 (1991).
=======================================

"We generally agree with our colleague that too often the Board makes over broad categorical statements regarding the competency and credibility of lay testimony."

========================================

"The appellant argues that the Board made an improper medical finding based
on the nature of his claimed injury when it found that, had the appellant sustained such an injury in service, it would have required treatment and thus should have appeared in his SMRs. Appellant's Brief (Br.) at 8-9. The appellant also contends that VA, when it requested a revised medical opinion, improperly impinged on the examiner's impartiality by stating to the examiner that the appellant had
sustained no right knee injury in service. Id. at 11-13. Finally, the appellant argues that the Board failed to provide an adequate statement of reasons or bases for its decision because it rejected his lay testimony based on a lack of supporting medical records and that the revised medical opinion is inadequate because it is based on an inaccurate factual premise. Id. at 8-9, 13-17."
=================================

"We generally agree with our colleague that too often the Board makes over broad categorical statements regarding the competency and credibility of lay testimony.
However, our disagreement with our colleague's commentary on the proper evaluation of lay evidence starts at its base. Where our colleague begins with the general proposition that lay witnesses generally are not competent to provide evidence on matters that require medical expertise, we understand the Federal Circuit's direction in this area to begin with the basic premise that "in the veterans' context, traditional requirements for admissibility have been relaxed." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Federal Circuit has flatly rejected the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis." Id. at 1376-77 (emphasis added). The Board is required to consider "all pertinent
medical and lay evidence." 38 U.S.C. § 1154(a); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b) (2010). When considering such lay evidence, the Board
should determine, on a case-to-case basis, whether the veteran's particular disability is the type of disability for which lay evidence is competent. See Jandreau, 492 F.3d at 1376-77 (cited in Robinson v. Shinseki, 312 F. App'x. 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009)(remanding the matter for consideration of the appellant's lay evidence, which requires a "two-step
analysis" that begins with an evaluation of whether the veteran's disability is the type of injury for which lay evidence is competent))."

----------------------------------------------------


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3525
RICK K. KAHANA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided June 15, 2011)
Sandra W. Wischow, of Richmond, Virginia, was on the brief for the
appellant.
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General
Counsel; Nisha C. Wagle, Acting Deputy Assistant General Counsel; and Thomas E. Sullivan, all of Washington, D.C., were on the brief for the appellee.

Before MOORMAN, LANCE, and SCHOELEN, Judges.

SCHOELEN, Judge, filed the opinion of the Court. LANCE, Judge, filed an
opinion concurring in the result.

SCHOELEN, Judge: The appellant, Rick K. Kahana, appeals through counsel
the portion of an August 10, 2009, Board of Veterans' Appeals (Board) decision that
denied him entitlement to service connection for a right knee disability including as secondary to a service-connected left knee disability.1
Record of Proceedings (R.) at 3-17. This appeal is timely, and the Court
has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The question before the panel is whether the Board's findings concerning the credibility of the appellant's lay statements
The Board, in the same decision, granted the appellant service connection
for a low back disability. The Board noted that "some level of back problem in service as a result of his kickboxing activities is not unreasonable" and relied on a December 2008 VA examiner, who found that it was as likely as not that the appellant's low back disability was related to these falls in service. Record of Proceedings (R.) at 14.
1

conflict with the Court's holding in Colvin v. Derwinski, 1 Vet.App. 171 (1991). Because the Court holds that the Board erred in making a medical determination concerning the severity of an anterior cruciate ligament (ACL) in violation of Colvin, the Court will vacate the portion of the Board's decision denying the appellant entitlement to service connection for a right knee disability and remand the matter for further proceedings consistent with this opinion.

I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from September 1976
until September 1979. R. at 737. The appellant's service medical records (SMRs) and
service separation report of medical history include extensive references to in-service injuries to his left knee. R. at 613-708, 613-15. There is no reference to an injury to the right knee in the appellant's service separation report.2
Id. By March 1980, the appellant had been granted service connection for
his left knee injuries. R. at 603.
In April 1993, Dr. Frederick G. Nicola, the appellant's private
orthopedist, performed arthroscopic surgeryand an ACLreconstruction on the appellant's right knee.
3
R. at 262. According to the records of Dr. Sam Bakshian, the appellant's left ACL was surgically repaired for the first time in the early 1990s. R. at 558. Dr. Bakshian also reported that the appellant injured his back and both knees in 1995 while performing as a stuntman. R. at 509. Dr. Nicola
subsequently performed a

In the decision here on appeal, the Board found that there is no evidence
of a right knee injury in the appellant's SMRs. R. at 14. The Court notes that the record contains a May 16, 1978, clinical record, which reported "effusion sighted r[ight] patella" and increased pain on palpation and on leg lift of the medial and lateral meniscus regions and a limited range of motion. R. at 634. The
appellant makes no reference to this record cite and does not specifically
dispute the Board's finding of no SMR evidence of a right knee injury in service. Nevertheless, the appellant maintains that he injured his right knee in service while participating in a Tae Kwon Do match in Korea and did seek medical attention at that time and was told it was "just a sprain."
Appellant's Brief at 10.
The April 1993 date for the appellant's right knee surgery performed by Dr.
Nicola was recorded in a clinical record. Accordingto the appellant's medical
historycontainedin a VA medical examination report, the first surgical repair of a right ACL tear occurred in 1994. R. at 58. In January 2002, Dr. Nicola confirmed that he had performed a right ACL reconstruction on the appellant, but did not indicate the date. R. at 578.
2
3
2

bilateral ACL reconstruction. Id.
The appellant was provided a hearing before the Board in September 2007. R.
at 306-26.
There, he stated that he injured his right knee in service, and was unsure
why the injury did not appear in his SMRs. R. at 311. He related that his original left knee injury was not fixed properly, and that led him to put too much pressure on his right leg so that when he was in a kickboxing competition in 1978 in Korea he "got kicked"and "got knocked down"and the right knee "snapped." R. at 311, 321. The appellant said "it was another ACL injury." R. at 321.
The appellant also reported that he sustained an additional Previous HitinjuryNext Hit to his right knee
following service, but attributed both
the in-service and postservice injuries to the fact that he continually
favored his left leg. R. at 325.
Following the appellant's hearing, in November 2007, the Board remanded
the matter for
additional development, which included providing the appellantwith a VA
medical examination "to
determine the likely etiology of [his] current right knee . . . disabilit[y]." R. at 300-05. The Board
noted:
The veteran has not received a VA examination
to specifically evaluate whether there
is a relationship between his right knee . . . disabilit[y] and his
military service. . . .
As he has made reasonable allegations regardingthe presence of such a
relationship, the Board finds that such a VA examination is warranted prior to final
adjudication of his claim. R. at 302 (emphasis added).
In a December 2008 VA examination report, the examiner recorded the appellant's assertions that his right knee snapped during an in-service kickboxing competition. R. at 58. The appellant stated that he was seen at a clinic and was told he had only sustained a sprain. Id. He related that he continued to have problems following his discharge, and was eventually diagnosed with a right ACL tear that required surgical repair in the 1990s. Id.
The examiner concluded that the appellant injured his right knee while in
service in 1979, but noted that the appellant did not seek treatment until the 1990s. R. at 73-74. The examiner also concluded that the appellant's right knee injury resulted from his habit of putting more weight on his right knee after numerous left knee injuries. R. at 74. In reaching her conclusions, the examiner reviewed private medical records, but did not review SMRS or VA records, and stated that she based her opinion on the history given by the appellant and the records of Dr. Nicola. Id.
3

VA requested that the claims folder be returned to the examiner who
completed the December 2008 examination for "addendum, opinion[,] and r[a]tionale for opinion." R. at 54.
Further instructions on the request stated:
Examination report states SMR[]s NOT reviewe[d].[Social Security Administration]
records show [appellant] sustained injuries in 1994 secondaryto work as a
stuntman.
No right knee injury in service. Injuries sustained post-service were not discussed. Id.
Subsequently, in a March 2009 VA examination report, the same examiner who
had performed the 2008 examination noted that the appellant reported an in-
service injury to his right knee, but that there was no documentation in his SMRs of a right knee injury. R. at 47-48. The examiner concluded that the appellant's right knee injury is not related to his military service. R. at 48. As rationale for her decision, the examiner stated that "[t]here is no documentation of right knee injury in the [appellant's SMRs] to support [his] claim." R. at 48-49. The examiner, discussing the appellant's private medical records, noted that, while Dr. Nicola's letter
indicates an in-service right knee injury, records from Dr. Sam Bakshian indicate that the appellant's right knee ACL tear was from a 1994 work-related Previous HitinjuryNext Hit. R. at 48. The examiner further found that
the appellant's right knee condition "is not felt to be caused by or related to" his left knee condition. R. at 49. As rationale, the examiner stated that the appellant's Previous HitinjuryNext Hit, an ACL ligament sprain, "resulted from a specific trauma incident and is not an overuse type of injury. Medical records reviewed did not support that a right knee Previous HitinjuryNext Hit occurred during the [appellant's] service but rather
was a work-related injury." Id.
The Board, in its August 10, 2009, decision here on appeal, denied the
appellant entitlement
to service connection for a right knee disability including as secondary
to a service-connected left
knee disability. The Board noted that the appellant's SMRs show that he
injured his left knee while in service but do not show that he injured his right knee. R. at 14. The Board then found that the appellant's assertion that he tore his right ACL during service was not credible. R. at 14-15. The Board also found that the appellant was not competent to "provide an opinion regarding medical
nexus." R. at 16. The Board found that the evidence failed to establish
any continuity of symptomatology in his right knee after service, and the lengthy gap between his service and the first evidence of a right knee disorder in 1993 is "a factor against a finding that the disability was incurred
4

or aggravated in service." Id.
Regarding the March 2009 VA medical opinion, the Board found that it "
provides specific probative evidence weighing against a finding that the [appellant's] current right knee disability is related to service or that it was caused or aggravated by the [appellant's] service[-]connected left knee disability." R. at 16.

B. Arguments on Appeal
The appellant argues that the Board made an improper medical finding based
on the nature of his claimed injury when it found that, had the appellant sustained such an injury in service, it would have required treatment and thus should have appeared in his SMRs. Appellant's Brief (Br.) at 8-9. The appellant also contends that VA, when it requested a revised medical opinion, improperly impinged on the examiner's impartiality by stating to the examiner that the appellant had
sustained no right knee injury in service. Id. at 11-13. Finally, the appellant argues that the Board failed to provide an adequate statement of reasons or bases for its decision because it rejected his lay testimony based on a lack of supporting medical records and that the revised medical opinion is inadequate because it is based on an inaccurate factual premise. Id. at 8-9, 13-17.
The Secretary argues that the Board's finding that the appellant's injury should have required medical treatment was not an improper medical finding, but permissible as an "inference based on the evidence." Secretary's Br. at 12. The Secretary also asserts that the VA examiner, in her first opinion, relied only on medical history as provided by the appellant and private medical records.
Id. at 14. Her opinion changed, the Secretary contends, after reviewing
other evidence found in the claims file. Id. The Secretary further argues that VA asked for a revised opinion for a number of reasons, and that the Agency did nothing to solicit or predetermine the outcome of the examination.Id. at 15-16. The outcome of the revised examination, the Secretary argues, was a reflection of the
evidence of record and not tainted by bias or impartiality. Id. at 16-17.

II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. See
5


Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table). A finding of service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (1999).
When deciding a matter, the Board must include in its decision a written
statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.

A. Lay Testimony4
The Board, in its role as factfinder, "is obligated to, and fully
justified in, determining

We generally agree with our colleague that too often the Board makes over broad categorical statements regarding the competency and credibility of lay testimony.
However, our disagreement with our colleague's commentary on the proper evaluation of lay evidence starts at its base. Where our colleague begins with the general proposition that lay witnesses generally are not competent to provide evidence on matters that require medical expertise, we understand the Federal Circuit's direction in this area to begin with the basic premise that "in the veterans' context, traditional requirements for admissibility have been relaxed." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Federal Circuit has flatly rejected the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiologyor a medical diagnosis." Id. at 1376-77 (emphasis added). The Board is required to consider "all pertinent
medical and lay evidence." 38 U.S.C. § 1154(a); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b) (2010). When considering such lay evidence, the Board
should determine, on a case-to-case basis, whether the veteran's particular disability is the type of disability for which lay evidence is competent. See Jandreau, 492 F.3d at 1376-77 (cited in Robinson v. Shinseki, 312 F. App'x. 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009)(remanding the matter for consideration of the appellant's lay evidence, which requires a "two-step
analysis" that begins with an evaluation of whether the veteran's disability is the type of injury for which lay evidence is competent)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).
6
4


whether lay evidence is credible in and of itself." Buchanan, 451 F.3d at
1337 (emphasis added).
Also, a layperson may be competent "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, 492 F.3d at 1377 (footnote omitted).
The Board rejected the appellant's lay statements based both on credibility and competency.

1. Credibility
In finding that the appellant's statements lack credibility, the Board
stated:
Given that a right ACL tear is quite a significant Previous HitinjuryNext Hit, one would
expect to see at
least some documentation of it in the [SMRs]. Also, one would expect that
the
[appellant] would have mentioned this right knee Previous HitinjuryNext Hit on his report of
medical
history at separation[,] but instead this document shows only that the [
appellant]
reported two separate injuries to the left knee. In addition[,] the Board
notes that
when the [appellant] initially filed his claim, he did not allege a right
knee Previous HitinjuryNext Hit in
service. Instead he alleged only that he incurred a left knee Previous HitinjuryNext Hit and
that his right
knee disability was secondary to that Previous HitinjuryNext Hit. The [appellant] then made
similar
contentions in his Notice of Disagreement. For all of these reasons, the
Board does
not find his more recent assertions of right knee Previous HitinjuryNext Hit in service
credible.
R. at 15.
Regarding the Board's statement that, given the nature of the appellant's
Previous HitinjuryNext Hit, some
documentation in his SMRs is expected, the Court agrees with the
appellant's argument that the
Board violated the Court's holding in Colvin, supra. Appellant's Br. at 8-
9. 5
In Colvin, the Court
heldthattheBoard"mustconsideronlyindependent medicalevidencetosupport[its]
findings rather
than provide [its] own medical judgment in the guise of a Board opinion."
1 Vet.App. at 172.
Requiring the Board to support its medical determinations with independent
medical evidence
"ensures that all medical evidence contrary to the veteran's claim will be
made known to him and be
a part of the record before this Court." Id. at 175. In this case, the
Board is making a medical
determination as to the relative severity, common symptomatology, and
usual treatment of an ACL
Previous HitinjuryNext Hit without citing to any independent medical evidence to corroborate
its finding. Indeed, the
In his separate statement, our colleague is in agreement with this stated
Colvin violation and
the reasoning of the majority that follows on this point.
7
5


record is devoid of any medical evidence establishing the relative
severity, common
symptomatology, and usual treatment of an ACL Previous HitinjuryNext Hit. Therefore, the Court
holds that the Board
clearly erred when it found the appellant not to be credible based on its
determination that a
particular Previous HitinjuryNext Hit, which is alleged to have occurred in service, is of the
type that should have been
documented in the service records and was not.
The Secretary argues that the Board was drawing a permissible "inference
based on the
evidence." Secretary's Br. at 12. Drawing an "inference based on the
evidence" is at the heart of any
adjudication. However, under Colvin, when a Board inference results in a
medical determination,
the basis for that inference must be independent and it must be cited. The
Court thus finds that the
Board has violated Colvin, and its statement of reasons or bases for its
determination that the
appellant's laystatements lack credibilityis inadequate. See 38 U.S.C. §
7104(d)(1); Allday, Caluza,
and Gilbert, all supra. Therefore, in considering the matter on remand,
the Board must reassess the
weight and credibility of the appellant's lay statements and adequately
explain any negative
credibility determination. See Washington v. Nicholson, 19 Vet.App. 362,
367-68 (2005) (it is the
Board's responsibility, as factfinder, to determine the credibility and
weight to be given to the
evidence).
2. Competency
The Board, in rejecting the appellant's lay statements based on competency,
found that he
"does contend that his current right knee disability is related to service
and to his service-connected
left knee disability, [but] as a layperson he is not competent to provide
an opinion regarding medical
nexus." R. at 16. This finding is legally unsupportable. This Court has
held that "[l]ay testimony
is competent . . . to establish the presence of observable
symptomatologyand 'mayprovide sufficient
support for a claim of service connection.'" Barr v. Nicholson, 21 Vet.App.
303, 307 (2007) (quoting
Layno v. Brown, 6 Vet.App. 465, 469 (1994)); see also Jandreau, supra;
Charles v. Principi,
16 Vet.App. 370, 374 (2002) (stating that a layperson is competent to
offer testimony regarding
symptoms capable of observation). And, as stated earlier, there is no
categorical requirement of
"'competent medical evidence . . . [when] the determinative issue involves
either medical etiology
or a medical diagnosis.'" Davidson, 581 F.3d at 1316 (quoting Jandreau,
492 F.3d at 1377). As a
result, the Court concludes that the Board's categorical rejection and
failure to analyze and weigh the
8


appellant's lay evidence in accordance with established precedent renders
its statement of reasons
or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
B. December 2008 and March 2009 VA Medical Examinations
The Secretary's duty to assist includes "providing a medical examination
or obtaining a
medical opinion when such an examination or opinion is necessaryto make a
decisiononthe claim."
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). This Court has
held that a medical opinion is adequate "where it is based on
consideration of the veteran's prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board's 'evaluation of the claimed disability will be a fully informed
one.'" Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (
1994)).
In evaluating disability claims, the Board is obliged to reject
insufficiently detailed medical
reports. 38 C.F.R. § 4.2 (2010) ("If a diagnosis is not supported by the
findings on the examination
report or if the report does not contain sufficient detail, it is
incumbent upon the rating board to
return the report as inadequate for evaluation purposes."). The appellant
does not dispute VA's
authority to request the December 2008 VA examiner to clarify her opinion.
Instead, the appellant
argues that the statement "[n]o right knee Previous HitinjuryNext Hit in service" (R. at 54)
made by VA to the examiner
in its request for a revised report infringed upon VA's responsibility to
observe the basic tenets of
fair play while gathering evidence. Appellant's Br. at 11. The appellant's
argument relies on
precedent set in Austin v. Brown, 6 Vet.App. 547, 552 (1994), and a
related line of cases.
In Austin, the Board's request for a medical opinion contained a sentence
stating: "Clearly,
[the veteran's] in-service chest Previous HitinjuryNext Hit was not related to his fatal
pulmonary emphysema." 6
Vet.App. at 549. The Court found that such a statement by the Board
indicates that "there was no
process at work to ensure impartiality, and creates the impression that
the Board was not securing
evidence to determine the correct outcome, but rather to support a
predetermined outcome." Id. at
552. The Court held:
A [Board] decision which relies upon a [Board] medical adviser's opinion
obtained
by a process that does not ensure an impartial opinion violates Thurber [v.
Brown,
5 Vet.App. 119 (1993)]-type fair process. We hold that basic fair play
requires that
evidence be procured by the agency in an impartial, unbiased, and neutral
manner.
The process employed here cannot be sustained as fair.
9


Id.; see also Bielby v. Brown, 7 Vet.App. 260, 268 (1994) (holding that
VA must pose a hypothetical
question to an independent medical expert that "may not suggest an answer
or limit the field of
inquiry of the expert," and reliance on an independent medical opinion
where the Board constrained
the scope of inquiry is improper because such constraints resulted in "
limiting [the examiner's]
investigation and tainting the results"); Colayong v. West, 12 Vet.App.
524, 535 (1999) (holding that
VA erred because the nature of its questions suggested an answer and
impermissibly narrowed the
examiner's field of inquiry).
The Secretaryattempts to distinguish Austin. Secretary's Br. at 15. He
argues that, in Austin,
the Board "provided the answer to theexaminerin advanceoftheexamination,"
whereasin this case,
the Agency asked for a new opinion for a number of reasons, and thus the "[
A]gency was not
soliciting a particular result, but pointing to the insufficiencies in the
2008 opinion." Id. at 15-16.
The Court is not convinced. Despite the other reasons given to the
examiner for a new opinion, the
request in this case was unequivocal in stating that there was "[n]o right
knee Previous HitinjuryNext Hit in service."6
R.
at 54. This statement makes the matter at hand much like Austin, where VA
made an explicit
statement of fact to an examiner that spoke to the crux of the examiner's
opinion and of the case in
general.7
The Court also notes that at the time of the second examination request,
there was no
adverse credibility determination concerning the appellant's lay
assertions that he injured his right
knee in service. Contra Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (
holding that a medical
opinion based upon the appellant's account of his medical history and
service background was of no
probative value where the recitations bythe
appellanthadalreadybeenrejectedbythe1954regional
office decision). The statement in this case directly contradicted the
findings of the VA examiner
in her initial December 2008 opinion that the appellant injured his right
knee in service. R. at 73.
The Court notes that this statement by VA in the examination request was
given even
though there is an SMR dated May 16, 1978, that appears to refer to an
effusion of the right knee cap
with increased pain upon palpation of the meniscus regions and a limited
range of motion. R. at 634.
We express no opinion now as to the circumstances under which it would be
appropriate
for the Board to inform an examiner that a fact must be accepted as true.
Such an opinion would
depend on the evidence (or medical evidence) presented in a particular
case. Here, the statement by
the Board that there was no right knee Previous HitinjuryNext Hit in service was not supported
by the record (see supra
note 6) and spoke to a crucial fact at issue for which a medical opinion
was required.
10
7
6


The examiner subsequently reached the opposite conclusion in her March
2009 opinion – that the
appellant's right knee Previous HitinjuryNext Hit was not related to service. R. at 42. The
Court is left unsure whether
the examiner revised her opinion based on additional evidence she reviewed
or because she felt
coerced by the Agency's proclamation against her earlier conclusion.
Therefore, the Court finds the
request violated the Board's duty to procure evidence in an "impartial,
unbiased, and neutral
manner." Austin, 6 Vet.App. at 552; see also Bielby and Colayong, both
supra.
The Secretary further argues that since the SMRs show no right knee Previous HitinjuryNext Hit
during service,
"there was no bias or impartiality in the addendum request." Secretary's
Br. at 16. The Court does
not agree. As noted above, there appears to be one notation in the SMRs as
to a right knee Previous HitinjuryNext Hit.
R. at 634. In any event, the lack of medical evidence in service does not
constitute substantive
negative evidence. McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006). The
examiner could have
potentially determined, based on other evidence of record including lay
statements and private
medicalopinions, that,regardless ofthelackofdocumentationintheappellant's
SMRs,theappellant
injured his right knee in service. The statement in the request that there
was no right knee Previous HitinjuryNext Hit in
service indicated to the examiner that all of the evidence had alreadybeen
analyzed and a conclusion
reached, and thus impeded her impartiality. On remand, the Board should
procure an impartial
medical opinion on which to base its decision. In procuring an opinion,
the Board is not precluded
from asking the physician (1) whether there is any medical reason to
accept or reject the proposition
that had the appellant had a right knee Previous HitinjuryNext Hit in service, such Previous HitinjuryNext Hit
could have lead to his current
condition; (2) what types of symptoms would have been caused by the type
of ACL Previous HitinjuryNext Hit at issue;
and (3) whether a right knee Previous HitinjuryNext Hit as described in the SMRs (R. at 634)
could have been mistaken
for a sprain but was a precursor to the current condition.
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that "[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the
Board rule against him"). On remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
11


must consider additional evidence and argument in assessing entitlement
to benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims
remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the portion of the Board's August 10, 2009, decision denying the appellant
service connection for
a right knee disability is VACATED and the matter is REMANDED to the Board
for further
proceedings consistent with this decision.
LANCE, Judge, concurring: Although I agree with the result reached by my
colleagues, I
am compelled to write separately because the issues involved arise so
frequently as to justify
additional clarification. First, issues of witness credibility and
competence are among the most
common raised to us and the distinctions between various cases are often
misunderstood or
overlooked. Second, the proper relationship between the Board and VA
medical experts is also an
area beset with confusion. This case presents an ideal fact pattern to do
more than simply state what
the Board did wrong. Accordingly, I must address in greater detail how the
Board should approach
these issues so that it may clearly articulate its analysis on these
issues in the future.
I. THE RELATIONSHIP BETWEEN COMPETENCE AND CREDIBILITY
The first common issue that this case demonstrates is the often blurred
line between
competence and credibility in the assignment of weight to lay testimony.
1. Lay Competence
In general, neither lay witnesses nor members of the Board are medical
experts. Thus, the
beliefs of lay witnesses (including claimants) on issues of diagnosis and
medical causation are not
competent evidence in situations where those issues require medical
expertise to resolve. Compare
12


Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting
that a layperson is not
"competent" to diagnose a form of cancer), with Barr v. Nicholson, 21 Vet.
App. 303, 309 (2007)
(holding that a layperson is competent to diagnose vericose veins).
Similarly, in Colvin v.
Derwinski, the Court held that the Board "must consider only independent
medical evidence to
support [its] findings rather than provide [its] own medical judgment in
the guise of a Board
opinion." 1 Vet.App. at 171, 175 (1991); see also Maxson v. Gober, 230 F.
3d 1330, 1333 (Fed. Cir.
2000) (holding that the Board is competent to consider "evidence of a
prolonged period without
medical complaint, along with other factors" in determining that a
condition was not aggravated by
service). Thequestion of whetheraparticularmedicalissueis beyond the
competence of a layperson
— including both claimants and Board members — must be determined on a
case-by-case basis.
Jandreau, 492 F.3d at 1377. Simply put, any given medical issue is either
simple enough to be
within the realm of common knowledge for lay claimants and adjudicators or
complex enough to
require an expert opinion.
However, Iwould reiterate that even if a layperson is not competent to
diagnose or determine
the cause of a particular condition, lay evidence is still competent to
establish the occurrence of
observable events and medical symptoms. Davidson v. Shinseki, 581 F.3d
1313, 1316 (Fed. Cir.
2009). Accordingly, the Board should avoid overbroad statements about the
competence of
laypersons and should carefully distinguish its treatment of lay testimony
of symptoms and its
analysis of lay competence on issues of diagnosis or causation. Board
decisions that make blanket
statements about lay competence while failing to acknowledge and discuss
the competent lay
testimony of observable symptoms will face a rocky road on appeal.
More importantly, even if the Board acts properly in denying a claim, it
must clearly
communicate the basis of the denial so that the claimant and future
regional office adjudicators will
understand what types of evidence must be submitted in order to reopen the
claim. See Kent
v. Nicholson, 20 Vet.App. 1, 9-11 (2006). Simply denying the claim with a
terse sentence that the
lay evidence is not competent to establish the nature or origin of the
claimant's disability will often
leave it unclear whether the Board is accepting the claimant's account of
what happened in service
or what post service symptomatology was observed. In such cases, a remand
will often serve to
illuminate the basis of the decision not only to inform the claimant and
the Court, but to ensure that
13


a future attempt to reopen the claim can be properly adjudicated.
2. Credibility
Even where there are no competence issues, the value of medical evidence
and opinions will
frequently turn on the credibility of lay testimony. A medical opinion
based upon an incorrect
factual premise is of no probative value.8
See Reonal v. Brown, 5 Vet.App. 458, 461 (1993). Thus,
the Board, in its role as factfinder, "is obligated to, and fully
justified in, determining whether lay
evidence is credible in and of itself." Buchanan v. Nicholson, 451 F.3d
1331, 1337 (Fed. Cir. 2006).
In determining whether layevidence is credible, the Board must
frequentlyconsider whether
there is corroborating evidence that supports the witness's account or
suggests that the witness may
be untruthful or mistaken. In doing so, the Board must distinguish between
two distinct situations.
In some cases, there is a complete absence of any evidence to corroborate
or contradict the
testimony, while in other cases there is evidence that is relevant either
because it speaks directly to
the issue or allows a reasonable inference to be drawn by the Board as
factfinder.
In general, the Board cannot determine that a veteran's lay evidence lacks
credibility solely
because it is not corroborated by contemporaneous medical records.
Buchanan, 451 F.3d at 1336.
In cases involving disabilities related to combat, VA must presume lay
evidence that describes the
in-service disease or Previous HitinjuryNext Hit is credible so long as it is "consistent with
the circumstance, conditions,
or hardships of such service, notwithstanding the fact that there is no
official record." 38 U.S.C.
§ 1154(b). This presumption is rebuttable onlybyclear and
convincingevidence. Collette v. Brown,
82 F.3d 389, 393 (Fed. Cir. 1996). However, "the lack of contemporaneous
medical records may
be a fact that the Board can consider and weigh against a veteran's lay
evidence," when such
consideration is not prohibited by 38 U.S.C. § 1154(b). Buchanan, 451 F.
3d at 1336.
I would note that an opinion based upon an incorrect factual premise is
not the same as an
opinion based upon an incomplete factual premise. The Board may assign a
lesser evidentiaryvalue
to an opinion that is lacking in detail. Nieves-Rodriguez v. Peake, 22 Vet.
App. 295, 302 (2008).
However, the Board may not assume that additional information would
necessarily change an
expert's opinion unless the issue falls within the competence of a
layperson. Thus, an opinion that
lacks details may trigger the duty to assist by indicating that a
condition may be related to service,
McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006), and may lend some
evidentiary support to
other opinions — favorable or unfavorable to the claim — that reach
the same conclusion. Nieves-
Rodriguez, supra.
14
8


There is a wide variety of evidence that may corroborate or contradict a
lay witness's
testimony, including prior consistent statements of the witness, prior
inconsistent statements of the
witness, and current medical evidence, such as an x-ray showing the
veteran has a healed fracture
in the allegedly injured area. Of course, this list is by no means
exclusive. Cf. Stefl v. Nicholson,
21 Vet.App. 120, 124 (2007) (providing a nonexclusive list of factors a
physician may discuss to
support an opinion).
One type of evidence that often causes confusion is contemporaneous SMRs
that do not
record the alleged in-service disease or Previous HitinjuryNext Hit. As discussed above, in
cases involving combat, VA
is prohibited from drawing an inference from silence in the SMRs. However,
in cases where the
inference is not prohibited, the Board may use silence in the SMRs as
contradictory evidence only
if the alleged Previous HitinjuryNext Hit, disease, or related symptoms
wouldordinarilyhavebeenrecorded in the SMRs.
See Buczynski v. Shinseki, 24 Vet.App. 221, 225-26 (2011) (noting that the
Board could not rely on
silence in medical records to conclude that the appellant's Previous HitinjuryNext Hit was not "
exceptionally repugnant"
because there was no medical reason for the examiner to address that
subjective conclusion); FED.
R. EVID. 803(7) (the absence of an entry in a record may be evidence
against the existence of a fact
if such a fact would ordinarily be recorded).
In order to rely on this inference, the Board must make two findings.
First, the Board must
find that the SMRs appear to be complete, at least in relevant part. If
the SMRs are not complete in
relevant part, then silence in the SMRs is merely the absence of evidence
and not substantive
negative evidence. See McLendon, 20 Vet.App. at 85. If the SMRs are
complete in relevant part,
then the Board must find that Previous HitinjuryNext Hit, disease, or related symptoms would
ordinarily have been
recorded had they occurred. In making this determination, the Board may be
required to consider
the limits of its own competence on medical issues. For example, the Board
may reasonably
conclude that a compound fracture of a bone would have been observed and
recorded, but would
require medical evidence to determine whether a particular type of cancer
would have manifested
observable symptoms in service that likely would have been reported and
recorded. Cf. Jandreau,
492 F.3d at 1377 n.4 (noting that a layperson is competent to identify a
broken leg, but not a form
of cancer).
15


3. Application
In this case, the Board rejected the appellant's lay statements based both
on competence and
credibility. The Board determined that the nature and origin of the
appellant's knee Previous HitinjuryNext Hit were
medical issues beyond his competence. R. at 16. As to credibility, the
Board stated:
Given that a right ACL tear is quite a significant Previous HitinjuryNext Hit, one would
expect to see at
least some documentation of it in the [SMRs]. Also, one would expect that
the
[appellant] would have mentioned this right knee Previous HitinjuryNext Hit on his report of
medical
history at separation[,] but instead this document shows only that the [
appellant]
reported two separate injuries to the left knee. In addition[,] the Board
notes that
when the [appellant] initially filed his claim, he did not allege a right
knee Previous HitinjuryNext Hit in
service. Instead he alleged only that he incurred a left knee Previous HitinjuryNext Hit and
that his right
knee disability was secondary to that Previous HitinjuryNext Hit. The [appellant] then made
similar
contentions in his Notice of Disagreement. For all of these reasons, the
Board does
not find his more recent assertions of right knee Previous HitinjuryNext Hit in service
credible.
R. at 15.
The flaw in the in Board's analysis is apparent. Although it concluded
that the appellant was
not competent as a layperson to provide a medical opinion as to his ACL
Previous HitinjuryNext Hit, the Board relied
upon its own lay opinion about the nature of the ACL Previous HitinjuryNext Hit to determine
that it was a "significant
Previous HitinjuryNext Hit" that would have been documented in the SMRs. The Board cannot have
it both ways. Either
this type of Previous HitinjuryNext Hit is relatively simple and within the common knowledge
of a layperson or it is
complex enough that expert opinion or treatise evidence is required to
understand its origins,
progression, and symptoms.
Based upon the development of the record so far, the ACL Previous HitinjuryNext Hit here
appears to fall clearly
on the side of being medically complex. The record is devoid of any
medical evidence establishing
the common symptomatologyand usual treatment of an ACL Previous HitinjuryNext Hit. The record
does contain a May
16, 1978, clinical record, which reported "effusion sighted r[ight]
patella" and increased pain on
palpation and on leg lift of the medial and lateral meniscus regions and a
limited range of motion.
R. at 634. It also contains the appellant's testimony that he was seen at
a clinic for a right knee Previous HitinjuryNext Hit
during service and was told that he had sustained only a sprain. R. at 58.
It is not apparent whether
the clinical record can be evidence of an ACL Previous HitinjuryNext Hit in service or whether
such an Previous HitinjuryNext Hit might have
been misdiagnosed as a sprain. It is also not clear whether the
appellant's symptoms in servicewould
have been of such severity that he would have likely reported them during
his separation
16


examination, particularlyif theyhad been inaccuratelyattributed to a
sprain instead of a more severe
ACL Previous HitinjuryNext Hit. Therefore, I agree with the appellant's argument that the
Board violated the Court's
holding in Colvin, supra, in finding that some documentation in his SMRs
is expected as the Board
is not competent to make this determination based solely on its own
medical beliefs.
II. THE RELATIONSHIP BETWEEN THE BOARD AND VA MEDICAL EXPERTS
The second common issue that this case presents is the delicate balance
between the Board's
primacy as a factfinder and its obligation to seek expert assistance in
resolving complex medical
issues when appropriate.
In evaluating disability claims, the Board is obliged to reject
insufficiently detailed medical
reports. 38 C.F.R. § 4.2 (2010) ("If a diagnosis is not supported by the
findings on the examination
report or if the report does not contain sufficient detail, it is
incumbent upon the rating board to
return the report as inadequate for evaluation purposes."). A medical
opinion is adequate "where it
is based on consideration of the veteran's prior medical history and
examinations and also describes
the disability, if any, in sufficient detail so that the Board's
'evaluation of the claimed disability will
be a fully informed one.'" Stefl, 21 Vet.App. at 123 (quoting Ardison v.
Brown, 6 Vet.App. 405, 407
(1994)). It necessarily follows that the Board has an obligation to reject
medical opinions that are
based upon an inaccurate factual premise. See Reonal, supra.
Although the basic requirement to obtain a detailed medical opinion based
upon an accurate
factual premise is straightforward in principle, this case demonstrates
the types of chicken-or-egg
problems that frequently arise in a system where adjudicators and experts
do not converse directly.
I agree with my colleagues that the request for a medical opinion in this
case violated Austin. The
request in this case was unequivocal in stating that there was no right
knee Previous HitinjuryNext Hit during service.
This statement makes the case at hand much like Austin, where VA made an
explicit statement of
fact to an examiner that a reasonable physician would likely understand as
a necessary premise of
the opinion being requested. As noted by the majority's opinion, the
statement directly contradicted
the findings of the VA examiner in her initial December 2008 opinion and
in the subsequent March
2009 opinion, the examiner found that the appellant's right knee Previous HitinjuryNext Hit
was not related to service.
R. at 49. In particular, her conclusion focused on whether the appellant's
ACL Previous HitinjuryNext Hit was secondary
17


to his left knee condition and concluded that it was not related because
it was a traumatic Previous HitinjuryNext Hit and
not an overuse Previous HitinjuryNext Hit. Id. The opinion does not address whether a
traumatic Previous HitinjuryNext Hit to the right knee
occurred and the reader is left unsure whether the examiner revised her
opinion based on additional
evidence she reviewed or because she felt bound by the Board's apparent
finding against her earlier
conclusion. Therefore, regardless of the intent of the request, the
Board's categorical statement must
be read as limiting the scope of the medical opinion, which had the result
of violating Austin under
the facts of this case.
In this case, the opinion should have asked the physician whether there
was any medical
reason to accept or reject the proposition that the appellant had a right
knee ACL Previous HitinjuryNext Hit that could
have lead to his current condition. Cf. Daves v. Nicholson, 21 Vet.App. 46,
51-52 (2007) (where an
examinerstatesthatadditional informationmayhelpresolveadisputed
medicalissue,theSecretary's
duty to assist requires the Secretary to determine whether that
information can be reasonably
obtained). The opinion could have specifically asked what types of
symptoms would have been
caused by the type of ACL Previous HitinjuryNext Hit at issue and whether such an Previous HitinjuryNext Hit could
have been mistaken for
a sprain or otherwise gone undiagnosed during service. Had it done so,
perhaps this remand could
have been avoided.
Nonetheless, I think it is vital to stress that in many cases it is
perfectly appropriate for a
request for a medical opinion to define the facts that a medical examiner
must accept are true.
Factfinding is a responsibility that is ultimately committed to the Board
and not the VA medical
examiner. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (it
is Board's duty to
determine probative weight of evidence). As mentioned earlier, where the
duty to provide a medical
opinion applies, the Board must obtain an opinion that is based upon the
factual predicate that it
finds to be true. In some cases, a medical opinion may help resolve
certain kinds of disputed issues
of fact, such as whether a particular Previous HitinjuryNext Hit occurred in service or the
precise nature of an intervening
Previous HitinjuryNext Document after service. As a result, in many cases, it may make sense for
the Board to make specific
findings before remanding a matter and require a medical opinion to accept
those findings as true.
In other cases, it is better for the Board to note that it needs to
resolve a component factual question
and then to ask the physician to include in the report an opinion as to
whether there is any medical
reason to accept or reject the veteran's testimony as to what occurred in
the past. When the Board
18


seeks such an opinion, the examiner should explicitly address the issue,
even if only to state that
there is no medical evidence that either supports or contradicts the lay
testimony. Cf. Jones
v. Shinseki, 23 Vet.App. 382, 390-91 (2010) (concluding that a medical
examiner may report that
an issue of medical causation cannot be resolved without resorting to
speculation if that conclusion
is adequately explained).
Unfortunately, it is not always easy at the outset of a claim to identify
all potential theories
of entitlement that have been raised or all the facts that must be
determined to adequately resolve
each theory. Unlike a courtroom setting where a skilled advocate can
respond to an expert's
testimony and methodically work through all the issues that arise, VA's
system for obtaining expert
medical opinions through regional offices by written request means that
developing evidence in a
complex case can be a piecemeal process. See Disabled Am. Veterans v.
Sec'y of Veterans Affairs,
327 F.3d 1339, 1346-68 (Fed. Cir. 2003) (invalidating VA's proposal to
allow the Board to develop
new evidence because it would violate claimant's right to one review on
appeal). In many complex
cases, the understanding of both the medical expert and the Board will
evolve through multiple
cycles of requests and opinions, which may or may not be accompanied by
additional development
of other evidence. However, I would note that the number of iterations
required to cover all the
issues can be substantially reduced if adjudicators are explicit as to
whether anyunderlying facts are
in dispute at any given point and if medical experts are explicit in
stating how and why they are
resolving any disputes as to the underlying facts. Although this may take
extra effort initially, in the
long run it will reduce the burden of avoidable remands that VA too
frequently inflicts upon itself
and provide faster, clearer decisions to claimants that have too often
been waiting for manyyears for
resolution of their claims.
19