Lead Opinion
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.
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.
In April 1993, Dr. Frederick G. Nicola, the appellant’s private orthopedist, performed arthroscopic surgery and an ACL
The appellant was provided a hearing before the Board in September 2007. R. at 806-26. 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 injury 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 appellant with a VA medical examination “to determine the likely etiology of [his] current right knee ... disability].” 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 ... disability] and his military service.... As he has made reasonable allegations regarding the 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.
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:
*432 Examination report states SMR[ ]s NOT reviewe[d]. [Social Security Administration] records show [appellant] sustained injuries in 1994 secondary to 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 injury. 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 injury, 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 injury 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 symptomatolo-gy 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 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 Ills. 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
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 Davidson v. Shinseki,
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,
A. Lay Testimony
The Board, in its role as factfin-der, “is obligated to, and fully justified in,
1. Credibility
In finding that the appellant’s statements lack credibility, the Board stated:
Given that a right ACL tear is quite a significant injury, 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 injury 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 injury in service. Instead he alleged only that he incurred a left knee injury and that his right knee disability was secondary to that injury. 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 injury in service credible.
R. at 15.
Regarding the Board’s statement that, given the nature of the appellant’s injury, 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.
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 symptomatology and ‘may provide sufficient support for a claim of service connection.’ ” Barr v. Nicholson,
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 necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski,
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 injury in service” (R. at 54) made by VA to the
In Austin, the Board’s request for a medical opinion contained a sentence stating: “Clearly, [the veteran’s] in-service chest injury was not related to his fatal pulmonary emphysema.”
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.
Id.; see also Bielby v. Brown,
The Secretary attempts to distinguish Austin. Secretary’s Br. at 15. He argues that, in Austin, the Board “provided the answer to the examiner in advance of the examination,” whereas in 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 injury in service.”
The Secretary further argues that since the SMRs show no right knee injury 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 injury. R. at 634. In any event, the lack of medical evidence in service does not constitute substantive negative evidence. McLendon v. Nicholson,
Given this disposition, the Court will not, at this time, address the other arguments and issues raised by the appellant. See Best v. Principi,
III. CONCLUSION
After consideration of the appellant’s and Secretary’s pleadings, and a review of the record, the portion of the Board’s Au
Notes
. 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.
. 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. According to the appellant’s medical history contained in 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.
. We generally agree with our colleague that too often the Board makes overbroad 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,
. 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.
. 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 injury 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.
Concurrence Opinion
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 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,
However, I would 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,
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.
In determining whether lay evidence is credible, the Board must frequently consider 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 factfin-der.
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,
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
One type of evidence that often causes confusion is contemporaneous SMRs that do not record the alleged in-service disease or injury. 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 injury, disease, or related symptoms would ordinarily have been recorded 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 injury 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,
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 injury 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 injury, 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 injury 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 injury in service. Instead he alleged only that he incurred a left knee injury and that his right knee disability was secondary to that injury. 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 injury 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 injury, the Board relied upon its own lay opinion about the nature of the ACL injury to determine that it was a “signifi
Based upon the development of the record so far, the ACL injury here appears to fall clearly on the side of being medically complex. The record is devoid of any medical evidence establishing the common symptomatology and usual treatment of an ACL injury. 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 injury 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 injury in service or whether such an injury might have been misdiagnosed as a sprain. It is also not clear whether the appellant’s symptoms in service would have been of such severity that he would have likely reported them during his separation examination, particularly if they had been inaccurately attributed to a sprain instead of a more severe ACL injury. 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,
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 injury 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
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 injury that could have lead to his current condition. Cf. Daves v. Nicholson,
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,
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 ob-
. 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 evi-dentiary value to an opinion that is lacking in detail. Nieves-Rodriguez v. Peake,