Rick K. Kahana v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 1254
| Vet. App. | 2011Background
- Appellant Rick K. Kahana seeks service-connection for a right knee disability, including as secondary to a left knee disability, from an August 10, 2009 Board decision.
- The Board found the appellant not credible that a right knee injury occurred in service and denied entitlement accordingly, also finding he was not competent to relate medical nexus.
- Appellant had a documented left knee injury in service, with later right knee ACL surgery in 1990s; no contemporaneous right knee injury was noted in the service records.
- VA exams (December 2008 and March 2009) concluded the right knee injury was not related to service, relying in part on SMRs showing no right knee injury in service.
- The Board remanded previously for VA examination and ultimately relied on the March 2009 opinion in denying entitlement.
- The Court vacates the Board’s decision and remands for determinations consistent with Colvin and related due-process concerns about medical opinions and credibility assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred in applying Colvin to lay-credibility findings | Kahana argues the Board relied on its own medical inference without independent evidence. | Secretary contends the inference was permissible and based on evidence in the record. | Vacated; remand required for independent medical-evidence-supported credibility assessment. |
| Whether the Board adequately weighed lay testimony on right-knee injury | Lay statements are competent to describe observable symptoms and events; credibility must be addressed. | Board appropriately weighed credibility of lay statements. | Vacated; Board must reassess credibility with proper framework under Colvin and Jandreau. |
| Whether VA medical opinions were properly obtained and impartial | The addendum requested with a pre-determined fact (no in-service right knee injury) tainted impartiality. | Requests for addenda may rely on record evidence and do not show bias. | Vacated; remand for an impartial, adequately reasoned medical opinion. |
| Whether the Board violated Austin by directing a biased second opinion | The Board’s language indicating no right knee injury in service biased the examiner. | Requests for clarification are permissible if not biased. | Vacated; remand for an independent medical opinion free from predetermined premises. |
| Whether the Board should obtain a new medical opinion on remand | The medical evidence is complex and requires expert evaluation with clear factual predicates. | Existing opinions, if probative, may be sufficient on remand. | Vacated; Board must secure an impartial medical opinion addressing whether a right-knee injury could relate to service and its symptoms. |
Key Cases Cited
- Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board may not render medical conclusions without independent medical evidence)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence may be competent for observable symptoms; determine competence case-by-case)
- Barr v. Nicholson, 21 Vet.App. 303 (2007) (lay testimony may establish observable symptomatology for service-connection claims)
- Reonal v. Brown, 5 Vet.App. 458 (1993) (medical opinions based on incorrect premise have no probative value)
- Austin v. Brown, 6 Vet.App. 547 (1994) (procedural fairness in obtaining medical opinions; biased inquiry invalid)
- Bielby v. Brown, 7 Vet.App. 260 (1994) (hypothetical questions to examiners should be unbiased and not limit inquiry)
- Colayong v. West, 12 Vet.App. 524 (1999) (medical opinions must not be constrained to a predetermined outcome)
- Stefl v. Nicholson, 21 Vet.App. 120 (2007) (medical opinions must be sufficiently detailed for meaningful Board review)
- McLendon v. Nicholson, 20 Vet.App. 79 (2006) (duty to assist includes developing potentially favorable evidence)
- Washington v. Nicholson, 19 Vet.App. 362 (2005) (Board must determine probative weight of evidence; not passive factfinder)