Veteranclaims’s Blog

January 16, 2010

Veterans Competent to Testify About Persistent or Recurrent Symptoms, Jandreau v. Nicholson,. 492 F. 3d 1372, 1377

We like the citation to Jandreau in this decision.

The appellant is competent to testify that he has experienced “persistent or recurrent symptoms of a disability.” McLendon, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007).

U.S. Court of Appeals for Veterans Claims

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1681
PAUL W. KNIGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The appellant, Paul W. Knight, through counsel, seeks review of a June 7, 2007, decision of the Board of Veterans’ Appeals (Board) denying entitlement to service connection for a right knee disability, residuals of a chest injury, and hypertension. Both parties filed briefs, and the appellant filed a reply brief. On November 21, 2008, in a single-judge memorandum decision, the Court affirmed, in part, and vacated in part, the June 7, 2007, Board
decision, and remanded certain matters. Knight v. Peake, No. 07-1681, 2008 WL 5095956 (Vet. App. Nov. 21, 2008).
On December 11, 2008, the appellant filed a timely motion for
reconsideration, or in the alternative, for a panel decision to the extent
that the Court had affirmed the Board’s denial of entitlement to service connection for residuals of a chest injury. He contends that the Court did not address whether VA had failed to meet its duty to assist with respect to his chest claim. On November 2, 2009, the Secretary filed a response in opposition. The Court grants the appellant’s motion for reconsideration, withdraws its November 21, 2008, decision, and issues this decision in its place.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will vacate the Board’s decision denying

entitlement to service connection for residuals of a chest injury, a
right knee disability, and hypertension and will remand those matters for further proceedings consistent with this decision.
I. FACTS
Mr. Knight served on active duty in the U.S. Army from July 1981 to July
1984. Record (R.) at 20. Service medical records (SMRs) reflect that he complained of chest pain with trouble breathing in February 1983, and was diagnosed with muscle strain. R. at 57- 58. Mr. Knight was
also treated in June 1983 for an injury he sustained when he hit a diving
board at a swimming pool.
R. at 62, 64-65. His treatment records showed that his sternum area was
red with scratches and
slight bleeding. Id. X-rays revealed no fractures. R. at 65. A followup
visit reflected a diagnosis
of “blunt chest trauma, resolved.” R. at 67. In April 1984, Mr. Knight
reported chest pains after
running. R. at 85. Postservice medical records from July 1988 show a
diagnosis of musculoskeletal
chest pain. R. at 347. A September 2003 private medical report included Mr. Knight’s statement that he experienced recurrent chest pain. R. at 407. Subsequent VA medical
records also reflected reports of chest pain, which were described as “musculoskeletal” and not ” cardiac.” R. at 483, 538,
659. Mr. Knight submitted a claim for service connection for residuals of
a chest injury in February 2003. R. at 361-63, 368. The VA regional office (RO) denied Mr. Knight’s claim for service connection for a chest injury in June 2004. R. at 500.
Mr. Knight’s SMRs also showed blood pressure readings of 140/80 in June 1982 (R. at 40), 143/57 in August 1982 (R. at 46), 136/88 in June 1983 (R. at 67), and 140/80 in May 1984 (R. at 86). Postservice medical records from December 2002 showed a diagnosis of
hypertension. R. at 415. The RO denied a claim for service connection for hypertension in December 2005. R. at 678.
In August 1983, Mr. Knight was seen for a strain of his left knee. R. at
72-73. Army Reserve
medical records dated August 1991 and April 1998 reflected a scar along the right superior medial knee. R. at 116, 138. In September 2002, Mr. Knight filed a claim for compensation or pension and
listed, among other things, a bilateral knee disability. R. at 170-74. In
a December 2002 rating decision, the RO denied the claim for service connection for a bilateral knee disability. R. at 355-59.
A postservice medical record dated December 2002 showed a diagnosis of tendonitis in the right knee. R. at 415. Mr. Knight appealed the decision denying service connection for his right knee disability in February 2003. R. at 361. In November 2003, service connection was granted for a left
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knee injury, rated at less than 10% disabling. R. at 460. January 2004 VA medical records indicated
that Mr. Knight complained of bilateral knee pain. R. at 535. The examiner noted minimal effusion,
mild crepitus, and mildly decreased range of motion in the right knee, and diagnosed Mr. Knight as having degenerative joint disease of the knees. R. at 536. X-rays reflected “bilateral inferior patellar
bone spurs with irregular appearance of the lower portion of the articular
surfaces.” R. at 528.
In the decision on appeal, the Board determined that there was no need to obtain a medical opinion or examination, and denied entitlement to service connection for residuals of a chest injury,
a right knee disability, and hypertension. R. at 1-12.

II. APPLICABLE LAW
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the present disability. See
Davidson v. Shinseki, 518 F.3d 1313 (Fed. Cir. 2009), Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of service connection, or no service connection, is a finding of fact reviewed under the “clearly erroneous” standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). ”
A factual 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.'” Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United
States Gypsum Co., 333 U.S. 364 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have
decided those issues differently in the first instance. See id.
Moreover, the Board is required to provide a written statement of the
reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant 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); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility
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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. See Caluza, supra; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).

III. APPLICATION OF THE LAW TO THE FACTS
A. Chest Injury Claim
The Board denied entitlement to service connection for a chest injury
because, other than
complaints of pain, the appellant did not currently have a disability as
contemplated by the law.
R. at 9-10; see Hickson, supra. The appellant argues this finding is
clearly erroneous “in light of
evidence documenting not only a current diagnosis of musculoskeletal chest pain, but [the
appellant’s] own competent reports of on-going and current chest pain
symptomatology that have never been rejected by VA.” Appellant’s Brief (App. Br.) at 13. The appellant further argues that
the Secretary failed to satisfy his duty to assist because the appellant
was not afforded a medical examination. App. Br. at 8-9.
Pursuant to 38 U.S.C. § 5103A, the Secretary’s duty to assist includes,
in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination. See Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary’s duty to assist requires that
he provide a VA medical examination to a claimant when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or, for certain diseases, manifestation of the disease during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or
persistent or recurrent symptoms of the disability may be associated with the veteran’s service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d); Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R.
§ 3.159(c)(4)(i)(2009).
In this case, rather than finding that the record already contained
sufficient medical evidence for the Secretary to reach a decision, the Board found that a VA medical opinion or examination was not required because there was “no evidence that the veteran has a current disability, or persistent
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or recurrent symptoms of a disability.” R. at 6. However, the appellant
has testified that he has experienced chest pain since the documented chest injury occurred in service, and the postservice medical evidence reflected recurrent chest pain. R. at 62, 186, 347, 407, 409, 483, 538, 659. The appellant is competent to testify that he has experienced “persistent or recurrent symptoms of a disability.” McLendon, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007).
The Court notes that, in certain situations, lay evidence may be used to
diagnose a veteran’s medical condition. See Jandreau, supra; Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection'” (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))); Washington v. Nicholson, 21 Vet.App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability”). Recently, the Federal Circuit provided further guidance concerning Jandreau. In Davidson, the Federal Circuit reemphasized the utility and appropriate consideration of lay evidence, even in the absence of competent medical evidence addressing medical etiology or medical diagnosis. See Davidson, 518 F.3d at 1316 ( rejecting the view that “competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.” (citing Jandreau, 492 F.3d at 1376-77)); see also Jandreau, 492 F.3d at 1377 (cited in Robinson v. Shinseki, 312 Fed. App’x 336, 339, 2009 WL 524737, at *2-3 (Fed. Cir. Mar. 3, 2009) (nonprecedential) (remanding for the Board to determine whether a low back disability is the type of injury for which lay evidence is competent evidence)).
Accordingly, remand is required for the Board to provide an adequate
statement of reasons or bases on the issue whether the duty to assist requires VA to provide a medical examination.

B. Right Knee and Hypertension Claims
The Secretary concedes that the portion of the Board’s decision regarding the appellant’s right knee and hypertension claims contains errors. Secretary’s (Sec.) Br. at 6.
Because the Secretary has conceded Board errors regarding those claims, and because, upon review, the Court agrees that errors were made, the only dispute is whether remand or reversal is the appropriate remedy.
Reversal is appropriate solely in cases where the only permissible view of the evidence is contrary to the Board’s decision. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Where the Board has incorrectly applied the law, failed to provide an
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adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, remand is generally the appropriate remedy. See Gutierrez, 19 Vet.App. at 10; Tucker
v. West, 11 Vet.App. 369, 374 (1998).
In this case, the appellant argues that the Board’s determination that VA
satisfied its duty to assist should be reversed. App. Br. at 10. However, a review of the Board’s decision shows that remand is the appropriate remedy because the Board has provided an inadequate statement of the reasons or bases for finding that VA was not required to provide a medical opinion or examination with respect to the appellant’s right knee and hypertension claims. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but(4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(a)(1), (d)(1); 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81.
The Board acknowledged that there is competent evidence that the appellant has a current right knee disability and current hypertension. R. at 8, 11. Nonetheless, the Board found a medical opinion or examination was not required because “[t]here is no record of a
right knee injury or hypertension, or complaints relative to such, during service.” R. at 5.
However, the appellant testified that his “right knee sprained a little bit” while he was in the military. R. at 427. The Board dismissed this testimony, finding that the appellant “is not competent to offer an opinion as to questions of medical diagnosis or causation.” R. at 8. That may be true under certain circumstances, however, the appellant is competent to testify that he sustained a knee injury in service. See Jandreau, supra. Therefore, the Board should have considered this evidence when determining whether a medical examination was warranted. Similarly, the Board erred in not considering records showing that the appellant’s blood pressure was elevated during his service. R. at 40, 46, 67, 86.
The Board disregarded these records because “hypertension was not
diagnosed on those occasions, and blood pressure readings were otherwise shown to be normal.” R. at 10.
While such evidence may be insufficient to support a finding of service connection, the Board erred in failing to consider
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whether it was sufficient to trigger VA’s duty to provide a medical
examination. See McLendon, supra (stating that the evidence necessary to trigger the Secretary’s duty to provide a medical examination “is a lowthreshold” requiring only an indication that a
disability may be associated with the claimant’s service).
The Court cannot conclude from the evidence of record that the only ”
permissible view” is a finding that the appellant is entitled to service connection for a right knee disability and hypertension. See Gutierrez, 19 Vet.App. at 10; Johnson, 9 Vet.App. at 10.
Rather, remand is the appropriate remedy in this case to provide the Board an opportunity to weigh and consider all evidence of record, particularly as it pertains to the need for further development in accordance with VA’s duty to assist, and to make an appropriate determination based upon such development. On remand, the appellant is free to submit additional evidence and argument on the remanded matters,
which the Board must consider when readjudicating his claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S.C.§§ 5109B, 7112.

III. CONCLUSION
Based on the parties’ pleadings, the foregoing analysis, and a review of
the record on appeal, the appellant’s motion for reconsideration is granted, the Court’s November 21, 2008, decision is WITHDRAWN and this decision is issued in its stead. The Board’s June 7, 2007, decision denying entitlement to service connection for residuals of a chest injury, for a right knee disability, and hypertension is VACATED, and the matters are REMANDED for further proceedings consistent with this decision.

DATED: November 30, 2009
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
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