Veteranclaims’s Blog

February 21, 2022

Single Judge Application; lay evidence; veterans are generally competent to testify about their symptoms and personal observations. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994); Miller v. Derwinski, 3 Vet.App. 201, 204 (1992) (“[L]ay evidence, including an appellant’s observations, may be sufficient in and of itself to warrant service connection.”). And the Board must consider lay evidence and provide reasoning when it finds lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006) (“[L]ay evidence is one type of evidence that must be considered [when a veteran submits it in support of a claim.]”) ; Miller, 3 Vet.App. at 204 (stating that the Board must assess the credibility of lay testimony);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4616
LENARD J. RILEY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Air Force veteran Lenard J. Riley, through counsel, appeals a May 4,
2020, Board of Veterans’ Appeals decision denying service connection for right and left knee
disorders. 1 The appeal is timely, the Court has jurisdiction, and single-judge disposition is
appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990).
We are asked to decide whether the Board adequately explained its denial of service
connection and reliance on VA medical examinations. Because the Board failed to address
favorable evidence and relied on inadequate medical examinations, we will set aside the parts of
its decision that addressed the right and left knee disorders and remand those matters for further
proceedings consistent with this decision.
1 The Board also remanded the issue of service connection for degenerative arthritis of the spine. Record (R.)
at 5. That remanded matter is not before the Court on appeal. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004)
(per curiam order) (holding tha t a Board remand “does not represent a final decision over which this Court has
jurisdiction”).
2
I. FACTS
Mr. Riley served on active duty from December 1997 until October 2002. R. at 1241.
During service, in November 2001, he sought treatment for foot pain and was diagnosed with flat
feet. R. at 1280.
During a December 2003 VA telehealth appointment, Mr. Riley reported moderate-tosevere
right knee pain of an unknown origin that had begun four months earlier. R. at 454-55. A
few days later, he was diagnosed with right knee tendinitis. R. at 452. Later in December 2003, he
complained of worsening right knee pain. R. at 441. In February 2004, he reported popping in his
right knee, but with no pain, and an x-ray showed no abnormalities. R. at 433-34.
In May 2004, Mr. Riley sought VA treatment for pain and swelling in his left knee that had
begun after he played a game of basketball a few days earlier. R. at 428. The treating physician
diagnosed a knee sprain for which he prescribed a brace, and he observed a limp, moderate effusion
and an inability to squat. R. at 428. Later that month, the VA physician noted continued left knee
pain with mild effusion, and he scheduled an MRI. R. at 423.
In June 2004, the MRI showed mild degenerative changes in the left knee but no meniscal
tears. R. at 412. On the VA physician’s recommendation, Mr. Riley received a physical therapy
consult that same month. R. at 412-13. Also in June 2004, a VA podiatrist noted a valgus2 left
ankle. R. at 416.
In May 2006, Mr. Riley sought VA disability compensation for bilateral flat feet. R. at
1229-30. In a November 2006 rating decision, the regional office (RO) granted service connection
and assigned a noncompensable rating. R. at 1033.
In June 2019, Mr. Riley filed a claim for bilateral knee disabilities. R. at 1417. At a VA
examination later that month, he reported experiencing a gradual onset of knee symptoms, which
he described as pain, intermittent swelling, and difficulty squatting. R. at 524. He stated that his
symptoms interfered with his activities of daily living and asserted that his service-connected flat
feet caused his knee conditions. R. at 524-25. After testing, the examiner recorded normal range
of motion (ROM) for both knees, noting that there was pain on testing but no functional loss due
to pain. R. at 525-26 The examiner noted degenerative arthritis in the left knee but opined that a
diagnosis of a chronic right knee condition was unwarranted, as the veteran’s symptoms were
2 Valgus means a body part is bent or twisted outward from the midline of the body to an abnormal degree.
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1990 (33d ed. 2020).
3
subjective only. R. at 522, 524. The examiner also concluded that Mr. Riley’s flat feet and his
claimed knee disorders were unrelated and “[t]he medical literature did not support a medical
relationship” between them. R. at 565. But the examiner offered no opinion about whether Mr.
Riley’s flat feet aggravated his claimed knee conditions. See R. at 565-66.
In September 2019, another VA examiner provided a second opinion, concurring with the
first examiner that Mr. Riley’s flat feet and his claimed knee conditions were unrelated. R. at 310-

  1. This examiner also offered no opinion about whether Mr. Riley’s flat feet aggravated his
    claimed knee conditions. See R. at 310-11. Three days later, the RO denied service connection for
    the bilateral knee conditions. R. at 251. Mr. Riley then appealed to the Board, again asserting that
    his service-connected flat feet caused his claimed knee disorders. R. at 227.
    In May 2020, the Board denied the knee condition claims. R. at 5-12. The Board denied
    service connection for the right knee because it found that the evidence did not show the existence
    of a right knee disability. R. at 9-11. And it denied service connection for the left knee condition
    because it found that the disability was neither incurred during service nor secondary to his flat
    feet. R. at 9-11. This appeal followed.
    II. ANALYSIS
    Mr. Riley argues that the Board failed to consider lay evidence that his right knee pain
    caused functional impairment. Appellant’s Brief (App. Br.) at 8-14. He also asserts that the June
    and September 2019 VA examinations did not sufficiently address whether his claimed knee
    disorders were related to his flat feet, thereby violating VA’s duty to assist, and that the Board
    erred by relying on the examinations. App. Br. at 14-22.
    The Secretary concedes that the Board overlooked lay evidence of functional loss caused
    by right knee pain, although he does not concede that a new examination is warranted. Secretary’s
    (Sec.) Br. at 5-7. The Secretary also argues that the June and September 2019 VA examinations
    were adequate and showed that there was no link between the veteran’s flat feet and his claimed
    knee conditions, including no evidence of a causal or aggravating relationship. Sec. Br. at 7-11.
    We review the Board’s findings of fact under the “clearly erroneous” standard. Gilbert v.
    Derwinski, 1 Vet.App. 49, 52 (1991). “‘A finding is “clearly erroneous” when although there is
    evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
    conviction that a mistake has been committed.'” Id. (quoting United States v. U.S. Gypsum Co.,
    4
    333 U.S. 364, 395 (1948)). But the appellant bears the burden of showing prejudicial error. Hilkert
    v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
    (table).
    With any finding on a material issue of fact or law presented on the record, the Board must
    support its determination with an adequate statement of reasons or bases that enables the claimant
    to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C.
    § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57. This means that the Board must analyze the credibility
    and probative value of the evidence, account for the evidence that it finds to be persuasive or
    unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
    claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
    1996) (table).
    A. Functional Impairment
    To establish service connection, generally one must show competent evidence of a current
    disability, among other criteria. Caluza, 7 Vet.App. at 506. A diagnosis or identifiable condition
    is not needed to establish a current disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356,
    1366-68 (Fed. Cir. 2018). Pain may be a compensable disability if it causes a functional
    impairment of earning capacity. Id. And even when the rating schedule defines a musculoskeletal
    disability by decreased ROM, adjudicators must consider pain, swelling, weakness, and functional
    loss. See Chavis v. McDonough, 34 Vet.App. 1, 11 (2021); 38 C.F.R. §§ 4.40 (2021), 4.45 (2021).
    Here, the Board found that Mr. Riley had no current disability in his right knee and thus
    denied service connection. R. at 9-10. The Board noted that the veteran reported right knee pain,
    swelling, difficulty squatting, and effects on his daily activities due to his symptoms, but it found
    “highly probative” the June 2019 VA examination, including the examiner’s statement that right
    knee pain did not cause functional impairment. R. at 8. Finding that there was no “competent and
    credible evidence in significant conflict with the VA medical opinion,” the Board concluded that
    there was no functional impairment of the right knee. R. at 8.
    The Court agrees with the parties that the Board inadequately addressed lay evidence. Mr.
    Riley reported pain in his right knee, and the June 2019 VA examiner noted right knee pain upon
    examination. R. at 524, 526. Moreover, Mr. Riley stated that his right knee pain impaired his ability
    to squat and affected his daily activities. R. at 524. Yet the Board did not consider Mr. Riley’s lay
    testimony when it concluded that he did “not have any functional impairment of the right knee that
    5
    could be considered a disability.” R. at 8; see Saunders, 886 F.3d at 1366-68. Although the June
    2019 VA examiner found no evidence of functional loss due to pain, R. at 526, Mr. Riley’s report
    of pain interfering with his ability to squat or perform daily activities appears to contradict this
    conclusion, and the Board should have explained why it found his testimony not “competent and
    credible,” R. at 8; see Caluza, 7 Vet.App. at 506. After all, veterans are generally competent to
    testify about their symptoms and personal observations. Layno v. Brown, 6 Vet.App. 465, 469-70
    (1994); Miller v. Derwinski, 3 Vet.App. 201, 204 (1992) (“[L]ay evidence, including an appellant’s
    observations, may be sufficient in and of itself to warrant service connection.”). And the Board
    must consider lay evidence and provide reasoning when it finds lay evidence not credible.
    Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006) (“[L]ay evidence is one type of
    evidence that must be considered [when a veteran submits it in support of a claim.]”) ; Miller, 3
    Vet.App. at 204 (stating that the Board must assess the credibility of lay testimony)
    .
    Because the Board disregarded Mr. Riley’s lay evidence of functional impairment without
    explanation, both the veteran’s understanding of the decision and our judicial review are frustrated.
    See Caluza, 7 Vet.App. at 506. Thus, the Board’s reasons or bases were inadequate on this point,
    and remand is appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand
    is the appropriate remedy where the Board did not provide an adequate statement of reasons or
    bases for its determinations); Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 56-57.
    B. Inadequate Medical Examinations
    Mr. Riley also argues that the June and September 2019 VA examinations were inadequate
    because they insufficiently addressed whether his service-connected flat feet could have caused or
    aggravated his claimed knee conditions. App. Br. at 14-21.
    A veteran may receive secondary service connection for a disability that is caused or
    aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b) (2021). A medical
    examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
    medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); “describes
    the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability
    will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); and
    “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the
    essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per
    6
    curiam). Whether a medical opinion is adequate is a finding of fact that the Court reviews under
    the “clearly erroneous” standard. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
    Here, the Board considered secondary service connection for the left knee disability3 but
    found it unwarranted because the July and September 2019 VA examiners both opined that the left
    knee disability was unlikely related to the veteran’s flat feet. R. at 10. The Board noted that the
    examiners explained that the two conditions were separate entities and that the medical literature
    did not support a relationship. R. at 10, 310, 565. Although neither examiner specifically addressed
    aggravation, the Board found no error in this, deeming the opinions to implicitly address
    aggravation when they stated that the conditions were unrelated. R. at 10; see R. at 310, 565.
    The Court finds that the June and September 2019 VA examinations were inadequate. Each
    opinion provided as its rationale only that the flat feet and claimed knee conditions were “separate
    entit[ies]” and thus unrelated and that the medical literature did not support a relationship between
    the disabilities. R. at 310, 565. The examiners did not explain what they meant by the conditions
    being “separate entit[ies]” and how this categorically foreclosed the possibility of a relationship
    between the conditions. This part of the examiners’ opinions was conclusory and lacked the
    “essential rationale” needed to inform the Board of a medical expert’s judgment. See Monzingo,
    26 Vet.App. at 105. We likewise do not think the examiners’ conclusions can be supported simply
    by noting that the medical literature does not show a relationship between the conditions. See id.;
    Bailey v. O’Rourke, 30 Vet.App. 54, 60 (2018) (stating that an examiner should provide a rationale
    specific to the veteran’s condition and circumstances).
    What’s more, neither examiner addressed the evidence that Mr. Riley’s flat feet caused an
    abnormal gait with a valgus left ankle. R. at 416; see R. at 310, 565. Thus, the examinations were
    not based on the veteran’s full medical history. See Stefl, 21 Vet.App. at 123. And as for the
    argument that Mr. Riley’s flat feet aggravated rather than caused his knee conditions, the examiners
    failed to expressly address this possibility. See R. at 310, 565-66. Although the Board read into the
    examinations an implicit finding about aggravation, R. at 10, we believe the examiners did not
    address aggravation sufficiently to inform the Board, see El-Amin v. Shinseki, 26 Vet.App. 136,
    140 (2013) (finding an examination inadequate when the examiner did not specifically address
    aggravation); Monzingo, 26 Vet.App. at 105.
    3 The Board did not consider secondary service connection for the claimed right knee condition because it
    found that no right knee disability existed and ended its analysis there. R. at 8-9.
    7
    In sum, the Court finds that the June and September 2019 VA examinations were
    inadequate because they were insufficiently detailed to inform the Board’s decision about a
    relationship between Mr. Riley’s service-connected flat feet and his claimed knee disabilities. And
    the Board clearly erred by regarding the examinations to be adequate and relying on them. See
    D’Aries, 22 Vet.App. at 104. Thus, we will remand for the Board to ensure that VA provides an
    adequate examination. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (“[O]nce the Secretary
    undertakes the effort to provide an examination when developing a service-connection claim . . .
    he must provide an adequate one . . . .”); Stegall v. West, 11 Vet.App. 268, 271 (1998) (holding
    that, when a medical examination is inadequate for evaluation purposes, remand is the appropriate
    remedy).
    C. Other Arguments and Remand Instructions
    To the extent that Mr. Riley makes other arguments, we find it unnecessary to address
    them. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (holding that, when the Court has decided
    to remand a case, it need not consider arguments that would lead to no additional remedy).
    Mr. Riley is free on remand to submit additional evidence and arguments, including those
    raised in his briefs, and he has 90 days from the date of the postremand notice VA provides to do
    so. See Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also Clark
    v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such evidence or argument
    submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court also reminds the Board
    that a remand must be performed in an expeditious manner, 38 U.S.C. § 7112, and 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).
    III. CONCLUSION
    Based on the above considerations, the parts of the May 4, 2020, Board decision denying
    service connection for right and left knee disorders are SET ASIDE, and the matters are
    REMANDED for proceedings consistent with this decision. The rest of the appeal is DISMISSED.
    DATED: February 18, 2022
    8
    Copies to:
    Brittani L. Howell, Esq.
    VA General Counsel (027)
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