Veteranclaims’s Blog

December 5, 2012

King v. Shinseki, No. 2011-7159(Decided: December 5, 2012); Federal Circuit; Unqualified Determinations Regarding Lay Evidence; Davidson, 581 F.3d at 1316; Buchanan, 451 F.3d at 1337; Jandreau

Excerpt from decision below:
“In this case, neither the Board nor the Veterans Court deemed lay evidence
categorically incompetent. See Davidson, 581 F.3d at 1316; Buchanan, 451 F.3d at 1337. Moreover, neither forum improperly required a medical opinion as the sole
way to prove causation. Id. Although citing case law that has been overturned by this court’s precedent, the Board did not make the unqualified determinations
present in the above overturned cases
. Moreover, the Veteran’s Court reassessed the evidence and found as well that the Board did not err in its procedure or result.
The Veterans Court correctly evaluated the Board’s credibility assessment, weighing of evidence, and treatment of Mrs. King’s testimony and did not find clear error. The Veterans Court did not ignore the precedent of Jandreau and did not categorically dismiss Mr. King’s lay evidence. Rather, the Veterans Court addressed the Board’s reliance on the VHA examiner’s opinion over Mr.
KING v. SHINSEKI
12
King’s other medical evidence. The Veterans Court determined the Board did not err by favoring the opinion of one competent medical expert over that of another and found the Board’s reliance was justified. In reaching its conclusion, the Veterans Court gave due consideration to Mr. King and Mrs. King’s testimony, and did not deem them incompetent merely because they were laypersons. Accordingly, the Veterans Court did not err in its determination.”
===========================

United States Court of Appeals
for the Federal Circuit
__________________________
NATHAN KING,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7159
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-4533, Judge Ronald M.
Holdaway.
____________________________
Decided: December 5, 2012
____________________________
MICHAEL LAWRENCE VARON, of White Plains, New
York, argued for claimant-appellant.
MICHAEL D. AUSTIN, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondentappellee.
With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director,
and REGINALD T. BLADES, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
KING v. SHINSEKI
2
Assistant General Counsel, and AMANDA R. BLACKMON,
Attorney, United States Department of Veterans Affairs.
__________________________
Before RADER, Chief Judge, O’MALLEY, and WALLACH,
Circuit Judges. Dissenting opinion filed by Circuit Judge
O’MALLEY.
RADER, Chief Judge.

The United States Court of Appeals for Veterans
Claims affirmed the decision of the Board of Veterans
Appeals affirming the denial of Nathan King’s claim for
compensation benefits for his back and bilateral hip
conditions. On appeal to this court, Mr. King contends
that the Veterans Court erred by discounting lay testimony
offered by Mr. King and his wife. Because, as a
preliminary matter, the Veterans Court did not fail to
consider Mr. King’s proffered lay evidence, this court
lacks jurisdiction over Mr. King’s contention, which is
merely a challenge to the weight given his evidence.
I
A Department of Veterans Affairs (“VA”) regional office
awarded Mr. King disability compensation for residuals
of a left knee surgery and right knee arthritis. Mr.
King later sought disability compensation for disabilities
of the back and hips on a direct basis and as secondary to
his service-connected knee disabilities. In support of his
claim, Mr. King stated that he developed disabilities of
the back and hips as a result of falls and movement
adjustments attributed to his service-connected knee
disabilities.
Mr. King testified before the Board during a December
2, 1998 hearing. Mr. King described continuing
problems with his left knee, including incidents of insta
KING v. SHINSEKI
3
bility beginning “a couple of months after the service.”
A13. He further described the onset of his back pain,
ongoing symptoms, discussions with VA physical therapists,
and the results of an MRI on his back. Mr. King
also described his abnormal gait and its effect on his body.
He explained that, “[b]ecause my knees hurt and because
my back has a tendency, if I don’t walk right, to get loud
with me, I would put more weight on each hip as I walk. I
kind of overcompensate because I don’t want to have the
pain there.” A16.
In support of Mr. King’s claim, on November 30, 1998,
Mr. King’s wife also presented a two-page letter to the
VA. In her statement, which was included in the hearing,
Mrs. King explained that she was not a medically trained
professional; however, as a school teacher, she was keenly
aware of behavioral changes from her experience observing
and recognizing changes in students’ performance,
physical well-being, and attitude toward assigned tasks.
Mrs. King explained that, after living with Mr. King for
twenty years, “. . . I have watch[ed] [Mr. King’s] physical
abilities deteriorate over the years, mainly because of his
knees, back and hips.” A8. She further described Mr.
King’s progressive decrease in ability to do home repairs
and that his general activity was increasingly limited.
Mrs. King also opined that Mr. King’s back and hip problems
were caused by his knee injuries. A8–9.
The record in this case shows, however, that medical
professionals were skeptical about the relationship between
his knee injury and his back and hip conditions.
Service medical records revealed no treatment for back or
hip problems during Mr. King’s active duty service from
February 1973 to June 1974. Post-service medical records
indicate that x-rays of the hips, in 1996, revealed bilateral
well-corticated ossific densitities of the hips, which were
most likely osteophytes. A 1996 MRI of the lumbar spine
KING v. SHINSEKI
4
revealed mild disc desiccation with central posterior disc
herniation at the L4-L5 disc level, and mild disc desiccation
with symmetrical disc bulge at the L3-L4 level. A
1997 MRI of the hips revealed mild degenerative arthritis
bilaterally, with no evidence of avascular necrosis. Mr.
King was diagnosed with herniated nucleus pulposus of
L4-L5 with multiple disk bulges of the lumbosacral spine
and degenerative joint disease of both hips in 1997.
Mr. King underwent a VA spine examination in 2000.
The examiner diagnosed Mr. King’s minimal degenerative
joint disease of both hips and lumbosacral spine. The
examiner related Mr. King’s conditions to his age. He
explained that Mr. King’s knee injury, specifically his left
postoperative anterior cruciate ligament reconstructive
condition of the knee, was not the type of injury that
causes the back and hip problems Mr. King experienced.
He also noted that Mr. King had symptomatology referable
to a chronic pain syndrome with possible psychosomatic
overlays. A VA medical examiner’s subsequent
examination in 2003 did not further opine on the etiology
of Mr. King’s back and hip conditions.
A private medical physician, Dr. Dashiff, disagreed
that Mr. King’s hip and back conditions were age-related.
In a 2000 letter, he opined that Mr. King’s knee problems
caused the hip and lower back problems. Dr. Dashiff
opined that he reached this conclusion in the absence of
any defined trauma or occupational hazard to account for
those other problems. Dr. Dashiff further stated that
studies had made clear the significant effect of weight
bearing on the lumbar spine. He noted that Mr. King’s
1997 MRI revealed only mild desiccation, which strongly
suggested that injuries to Mr. King’s back were not of
longstanding duration, but were recent. Dr. Dashiff
offered the opinion that, because only mild arthritic
changes were revealed in Mr. King’s hips, and because the
KING v. SHINSEKI
5
hip joints are between the knee and lumbar spine, Mr.
King’s hips were subjected to abnormal forces that resulted
from his knee injuries and subsequent off-loading
to ameliorate knee symptoms.
In a 2006 report, the VA Chief of Orthopedics again
reported on examinations he conducted in 2000 and 2003.
Regarding the 2000 examination, the examiner noted an
absence of important bridging symptoms in Mr. King’s
back, linking such findings to aging processes rather than
to his bilateral knee condition. Regarding Mr. King’s hip
condition, the VA examiner reported during a 2003 examination
that only very minimal degenerative arthritis
was revealed, which he stated, was age-related and substantiated
by few abnormal findings. The examiner thus
concluded that Mr. King’s bilateral hip and back disabilities
were not related to his bilateral service-connected
knee conditions.
In 2007, the Board denied Mr. King’s appeal. He appealed
that determination to the Veterans Court. The
parties filed a joint motion for remand, which the court
granted. On remand, additional evidence was developed
and associated with the record.
In 2008, the Board obtained a medical opinion from a
Veterans Hospital Administration (VHA) orthopedist.1
Based on his review of the record, the VHA examiner
opined that it was not likely that Mr. King’s back and
bilateral hip disabilities were either directly caused or
permanently worsened as a consequence of the serviceconnected
knee disabilities. The VHA examiner concluded
that the mild symmetrical changes in Mr. King’s
1 In its opinion, the Veterans Court refers to this as
an opinion from an independent medical examiner (IME).
For consistency, we refer to it as the opinion of the VHA
examiner.
KING v. SHINSEKI
6
hips reflected expected changes from the aging process.
The VHA examiner explained that, in order for the hip
condition to be associated with the knee condition, it
would have to have occurred in a progressive and persistent
manner from his period of service, rather than beginning
twenty years after his service. Regarding Mr.
King’s back condition, the VHA examiner noted Mr.
King’s multiple level (L4-L5 and L3-L4) spine desiccation,
as revealed in the 1996 MRI, reflected the effects of aging
rather than load transfer from an adjacent limb or joint.
The VHA examiner stated that the record contained no
evidence for the permanent worsening of Mr. King’s back
or hip conditions.
In 2009, Mr. King submitted a 2004 treatise article,
which addressed the question of a relationship between
limping and back symptoms, noting that a limp can in
some specific instances cause back pain and aggravate
preexisting back pain.
In 2009, the Board denied Mr. King’s appeal. In its
analysis of the record, the Board determined that this
case presented conflicting medical opinion evidence, and,
consequently, that it was required to determine the
relative probative value and weight to be accorded these
opinions. The Board then reviewed case law applicable to
its review of the medical opinion evidence.
The Board first considered the favorable medical opinion
of Dr. Dashiff, but concluded that his opinion was of
limited probative value. The Board found that the basis
for Dr. Dashiff’s opinion was unclear because it was not
apparent that Dr. Dashiff proffered his opinion based
upon a review of either the claims file or other records in
the file. The Board, moreover, noted that Dr. Dashiff did
not indicate that his opinion was based on any period of
prior treatment or other opportunity during which he
KING v. SHINSEKI
7
evaluated Mr. King’s claimed back and hip disabilities.
The Board also noted that Mr. King’s treatment records
dated before 2000 were from VA examiners and included
no records from Dr. Dashiff. The Board concluded that
Dr. Dashiff’s opinion was not based upon a review of the
claims file or upon a course of treatment by which he
could have become familiar with Mr. King’s claim.
The Board further determined the treatise article
submitted by Mr. King was of extremely low probative
value because, although the article generally addressed
questions on the relationship between limping and back
symptoms, the article did not address matters specific to
Mr. King’s case.
With respect to the VA medical opinion evidence, the
Board found VHA examiner’s opinion provided a clear
rationale for his conclusions, which were based upon a
review of the claims file with citation to specific medical
records. The VHA examiner’s opinion identified three
significant findings in support of its conclusion: the absence
of any record of treatment for the claimed disabilities
between 1974 and 1995, the symmetrical changes
revealed in the hips, and the locations of the disc changes
in the spine. The Board concluded this opinion was of
high probative value because it had no deficiencies and
was comparatively more complete than Dr. Dashiff’s
opinion.
The Board then considered the lay testimony offered
by Mr. King and his wife. The Board found Mr. King
generally asserted that he developed back and hip disabilities
from falls and movement adjustments that were
a result of his service-connected knee disabilities. The
board further found Mrs. King’s statement provided
similar contentions. The Board concluded the Kings’ lay
statements were not competent on the question of medical
KING v. SHINSEKI
8
causation because they lacked the medical training and
expertise required to render an opinion on medical causation.
The Board ultimately concluded that, on balance, the
evidence of record did not establish an etiological link
between Mr. King’s low back and hip disorders and his
period of service. The Board further concluded that the
evidence did not establish the claimed back and hip
disorders were shown to be secondary to Mr. King’s service-
connected disabilities. The Board, accordingly,
denied Mr. King’s claim.
Mr. King appealed to the Veterans Court. Regarding
the Kings’ lay testimony, the Veterans Court believed the
Board’s treatment was within its role as the fact finder.
While the Veterans Court acknowledged that lay evidence
may be used to establish medical causation, the court
observed the Board is not required “to accept all lay
statements as definitive proof of a service-connection
claim . . . .” The Veterans Court concluded that the Board
properly “considered [Mr. King’s] lay evidence but found
that it was outweighed by the competent medical evidence
of record . . . .” Mr. King appeals that holding.
II
The governing statute, regulation, and our precedent
make clear that competent lay evidence may be used to
establish a medical condition, including causation. The
governing statute provides as follows:
The Secretary shall consider all information and
lay and medical evidence of record in a case before
the Secretary with respect to benefits under laws
administered by the Secretary. When there is an
approximate balance of positive and negative evidence
regarding any issue material to the deter
KING v. SHINSEKI
9

mination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.
38 U.S.C. § 5107(b) (emphases added). The applicable
regulation provides that “[t]he factual basis [for establishing
a chronic disease] may be established by medical
evidence, competent lay evidence or both. . . . Lay evidence
should describe the material and relevant facts as to the
veteran’s disability observed within such period, not
merely conclusions based upon opinion.” 38 C.F.R.
§ 3.307(b) (emphases added). Consistent with the statute
and regulation, this court has stated that “lay evidence is
one type of evidence that must be considered” and that
“competent lay evidence can be sufficient in and of itself.”
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir.
2006). In the same regard, this court has noted that the
Board’s failure to consider competent lay evidence is “a
legally untenable interpretation of the . . . [governing]
statutory and regulatory provisions . . . .” Id. at 1336.
Jandreau v. Nicholson followed Buchanan by reversing
the Veterans Court for applying the overbroad rule
that “competent medical evidence is required . . . [when]
the determinative issue involves either medical etiology or
a medical diagnosis.” 492 F.3d 1372, 1376 (Fed. Cir.
2007) (quotation marks and citation omitted). This court
noted that the Veterans Court’s holding was “inconsistent
with our decision in Buchanan . . ., which was decided
shortly before the decision of the Veterans’ Court in this
case.” Id. In Davidson v. Shinseki, this court again
stresses its consistent holdings that lay evidence may be
sufficient to establish a diagnosis of a medical condition
and its explicit rejection of the Veterans Court’s contrary
view in Buchanan and Jandreau. 581 F.3d 1313, 1316
(Fed. Cir. 2009). Nevertheless, “[i]gnoring [Buchanan and
Jandreau], the Veterans Court in this case stated categorically
that a valid medical opinion was required to
KING v. SHINSEKI
10
establish nexus, and that [the claimant] was not competent
to provide testimony as to nexus because she was a
layperson.” Id. This court, accordingly, reversed the
Veterans Court in Davidson.
In this case, the Board’s opinion stated:
The only other evidence of record supporting the
Veteran’s claim is his own opinion, as indicated in
his October 2004 Travel Board hearing testimony,
and that of his spouse, contained in a statement
received in December 1998, with similar contentions.
Neither individual, however, has been
shown to possess the requisite medical training,
expertise, or credentials needed to render a diagnosis
or a competent opinion as to medical causation.
Accordingly, this lay evidence does not constitute
competent medical evidence and lacks probative
value.
A40 (emphasis added). It is presumed the Board’s decision
was based on the entire record. See Gonzales v. West,
218 F.3d 1378, 1380–81 (Fed. Cir. 2000). The Board
seemed to place emphasis on the statutory requirement
that lay evidence demonstrate some “competence.”
The Veterans Court agreed with the Board that “the
probative value of [the November 2008 VHA] opinion is
very high” and King’s evidence “lacks probative value.”
A5–6, 40. Specifically addressing Mrs. King’s lay testimony,
the Veterans Court noted that nothing in the
record demonstrated that Mrs. King received any special
training or acquired any medical expertise in evaluating
and determining causal connections for conditions such as
Mr. King’s bilateral hip and back conditions. Accordingly,
the Veterans Court did not find error in the Board’s
statement that neither Mr. King nor his wife had “the
requisite medical training, expertise, or credentials
KING v. SHINSEKI
11
needed to render a diagnosis” thus their testimony “could
not establish medical causation” nor was it “a competent
opinion as to medical causation.” A40. Citing this court’s
precedent in Davidson v. Shinseki, 581 F.3d 1313 (Fed.
Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372
(Fed. Cir. 2007), the Veterans Court reasoned “[t]he
Board is not required to accept all lay statements as
definitive proof of a service-connection claim, however,
and nothing in Davidson precludes the Board from favoring
competent medical evidence over the lay statements
offered by a veteran.” A6. Thus, the Veterans Court
determined the Board did not improperly discount lay
evidence; instead, it simply found the expert’s testimony
more probative.
III
This court notes that this case is different from previous
decisions reversed by this court. In this case, neither
the Board nor the Veterans Court deemed lay evidence
categorically incompetent. See Davidson, 581 F.3d at
1316; Buchanan, 451 F.3d at 1337. Moreover, neither
forum improperly required a medical opinion as the sole
way to prove causation. Id. Although citing case law
that has been overturned by this court’s precedent, the
Board did not make the unqualified determinations
present in the above overturned cases. Moreover, the
Veteran’s Court reassessed the evidence and found as well
that the Board did not err in its procedure or result.
The Veterans Court correctly evaluated the Board’s
credibility assessment, weighing of evidence, and treatment
of Mrs. King’s testimony and did not find clear
error. The Veterans Court did not ignore the precedent of
Jandreau and did not categorically dismiss Mr. King’s lay
evidence. Rather, the Veterans Court addressed the
Board’s reliance on the VHA examiner’s opinion over Mr.
KING v. SHINSEKI
12
King’s other medical evidence. The Veterans Court
determined the Board did not err by favoring the opinion
of one competent medical expert over that of another and
found the Board’s reliance was justified. In reaching its
conclusion, the Veterans Court gave due consideration to
Mr. King and Mrs. King’s testimony, and did not deem
them incompetent merely because they were laypersons.
Accordingly, the Veterans Court did not err in its determination.

IV
Our jurisdiction to review Veterans Court decisions is defined by 38 U.S.C. § 7292. This court has exclusive jurisdiction to interpret statutory provisions and reviews the Veterans Court’s statutory interpretations without deference. 38 U.S.C. § 7292(c); Cook v. Principi, 353 F.3d 937, 938 (Fed. Cir. 2003). Absent a constitutional issue, this court is precluded from reviewing challenges to factual determinations or challenges to an application of law to fact. 38 U.S.C. § 7292(d)(2) (“Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.”); Cook, 353 F.3d at 938–39. Although this Court has jurisdiction to review a “rule of law,” including a rule established by a judicial precedent of the Veterans Court, it may not review the application of law to the facts of a particular case. See Willsey v. Peake, 535 F.3d 1368, 1371–72 (Fed. Cir. 2008); see also Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact-finder. We lack jurisdiction to
review these determinations.”).
KING v. SHINSEKI
13
The Veterans Court addressed Mr. King’s contentions that his lay evidence was mistreated. In its evaluation, as described above, the Veterans Court did not misinterpret the applicable statutes or case law. On appeal, Mr. King’s
arguments fail on their merit and likewise fail to provide a jurisdictional basis. This court is precluded from reviewing Mr. King’s contentions because they involve a review of the application of law to fact. Because Mr. King only challenges the evaluation and weighing of evidence, this court lacks jurisdiction over this appeal.
DISMISSED
COSTS
Each party shall bear its own costs.
United States Court of Appeals for the Federal Circuit
__________________________

NATHAN KING,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
2011-7159
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-4533, Judge Ronald M.
Holdaway.
__________________________
O’MALLEY, Circuit Judge, dissenting.
I dissent from the Court’s judgment because I find the
rationale used to justify it both unsupported by the record
and inconsistent with this Court’s binding case law.
While the majority strains to characterize the findings of
the Veterans Court and those of the Board before it as
consistent with 38 U.S.C. § 5107(b) and our case law
interpreting that mandate, the majority’s efforts fail.
Though it tries mightily, the majority cannot rewrite the
decisions below.
I
The Board was wrong to conclude that the Kings’ lay
testimony was neither competent nor probative of the
KING v. SHINSEKI
2
question of medical causation. The Veterans Court was
wrong to affirm the Board’s treatment of that evidence.
As the majority concedes, “[t]he governing statute,
regulation, and our precedent make clear that competent
lay evidence may be used to establish a medical condition,
including causation.” Majority at 8. We consistently have
made clear that “lay evidence is one type of evidence that
must be considered” and that “competent lay evidence can
be sufficient in and of itself,” to prove medical causation.
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir.
2006) (emphasis added). We also have held that the
Board’s failure to consider competent lay evidence is “a
legally untenable interpretation of the . . . [governing]
statutory and regulatory provisions . . . .” Id. at 1336.
Notwithstanding the clear directive set forth in the
statute, regulation, and our holding in Buchanan, we
repeatedly have had to reverse the Veterans Court for
endorsing the Board’s failure to even consider competent
lay evidence when considering medical causation. In
Jandreau v. Nicholson, we reversed the Veterans Court
because it held that “competent medical evidence is
required . . . [when] the determinative issue involves
either medical etiology or a medical diagnosis.” 492 F.3d
1372, 1374 (Fed. Cir. 2007) (quotation marks and citation
omitted). We pointed out that this holding was untenable
under and “inconsistent with our decision in Buchanan . .
.” Id. at 1376. In Davidson v. Shinseki, we once more
emphasized that lay evidence may be sufficient to establish
a diagnosis of a medical condition and reemphasized
our explicit rejection of the Veterans Court’s contrary
view in Buchanan and Jandreau. 581 F.3d 1313, 1316
(Fed. Cir. 2009). As the majority concedes, we were again
forced to reverse the Veterans Court in Davidson.
KING v. SHINSEKI
3
Here, the Veterans Court and the Board persist in
their disregard of the governing law. In its opinion, the
Board states:
The only other evidence of record supporting the
Veteran’s claim is his own opinion, as indicated in
his October 2004 Travel Board hearing testimony,
and that of his spouse, contained in a statement
received in December 1998, with similar contentions.
Neither individual, however, has been
shown to possess the requisite medical training,
expertise, or credentials needed to render a diagnosis
or a competent opinion as to medical causation.
Accordingly, this lay evidence does not constitute
competent medical evidence and lacks probative
value.
In re King, No. 98-08 643A (Bd. Vet. App. Feb. 27, 2009)
(emphasis added). It is difficult to understand how the
Veterans Court endorsed that treatment of the Kings’ lay
evidence in the face of Buchanan, Jandreau, and Davidson.
1 Remarkably, the Board failed to cite any of these
1 In fact, the language used by the Board here is
strikingly similar to that which it used in Davidson.
There, the Board said:
In this case, there is no indication that the appellant
is other than a layperson without the appropriate
medical training and expertise, so she is
not competent to provide a probative (persuasive)
opinion on a medical matter such as the etiology
of a disability.
In re Davidson, No. 02-16 322 (Bd. Vet. App. June 28,
2007). I struggle to understand how the outcome here is
different when the Board gave lay testimony the same
treatment it did in Davidson (i.e., because the witnesses
lacks medical credentials, their testimony is not probative).
KING v. SHINSEKI
4
cases; rather, it instead, relied on two Veterans Court
cases with contrary holdings that preceded Buchanan and
Jandreau. See Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992); Routen v. Brown, 10 Vet. App. 183, 186
(1997), aff’d on other grounds, 142 F.3d 1434 (Fed. Cir.
1998).
The Board was entitled to weigh the persuasiveness of
the Kings’ lay testimony against the other evidence in the
record. It was not permitted, however, to ignore that
evidence merely because it was lay evidence. And, it was
wrong to characterize that evidence as neither “competent”
nor “probative.”
II
Despite this clear disregard of governing law, the majority
attempts to salvage the Veterans Court’s ruling,
and that of the Board before it, by characterizing them as
saying something different than they do. First, the majority
says the Veterans Court did not “ignore the precedent
of Jandreau.” Majority at 11. It is hard to see how that
can be so, however, when that Court not only failed to cite
Jandreau and its progeny, but cited to contrary case law
of its own which Jandreau overruled.
Next, the majority says that neither the Board nor the
Veterans Court “deemed lay evidence categorically incompetent.”
Majority at 11. Again, it is hard to accept
this proposition when the Board opinion expressly states
that Mr. King’s lay evidence was rejected solely because it
was lay evidence. The Board made clear its view that “lay
evidence does not constitute competent medical evidence”
and, “lacks probative value” when assessing medical
causation. This rejection of Mr. King’s lay evidence —
once more based on outdated and long-since rejected legal
authority — could hardly be more categorical.
KING v. SHINSEKI
5
The Veterans Court erred as a matter of law by endorsing
the Board’s refusal to consider the Kings’ lay
testimony. Because the Veterans Court has, once more,
chosen to ignore our binding, repeated case law to the
contrary, we should reverse its decision and remand this
matter for reconsideration and application of correct
governing legal principles.

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