N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

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GEORGE E. JOHNSON, Claimant-Appellant,

v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.

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2010-7060

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Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2809, Judge Alan G. Lance, Sr.

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Decided: June 10, 2010

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G EORGE E. J OHNSON , of Little Rock, Arkansas, pro se.

A NUJ V OHRA , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were T ONY W EST , Assistant Attorney General, J EANNE E. D AVIDSON , Director, and M ARTINJOHNSON v. DVA 2

F. H OCKEY

, J R
., Assistant Director. Of counsel on the
brief was D AVID J. B ARRANS , Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC.

__________________________

Before R ADER

, Chief Judge , B RYSON , and D YK
, Circuit Judges

. P ER C URIAM

.

George E. Johnson (“Johnson”) appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”). The Board denied Johnson’s
claim for service connection. We affirm-in-part

, vacate-inpart , and remand

.

B ACKGROUND

While Johnson raised several claims before the Department of Veterans Affairs (“VA”), he raises only a single claim on appeal. We limit the description of the background facts to this one claim.

Johnson underwent surgery on his left knee when he was twelve years old. Residual effects from that surgery persisted throughout his adulthood and were noted upon his entry into service with the United States Army.Johnson served on active duty in the Army from September 1982 to February 1983, and then in the Army National Guard Reserves for more than nine years. On December 27, 1990, Johnson was involved in a motorvehicle accident during a period when he was not performing duties for the Army National Guard Reserves. He injured his neck, back, left knee, and left ankle.JOHNSON v. DVA 3

Johnson received workers’ compensation benefits for his injuries from that accident.

Two days after Johnson was involved in the motor vehicle accident, Johnson performed a single day of inactive duty for training (“INACDUTRA”) on December 29, 1990.
Johnson asserts that his one day of INACDUTRA aggravated the injuries he sustained in the December 27, 1990, car accident. In January of 2001, Johnson filed a claim for disability compensation wi th the VA based on this alleged aggravation of his injuries from the motor vehicleaccident by his one day of INACDUTRA, as well as several other unrelated injuries and conditions. The VA
denied his claim.

Following a remand by the Veterans Court, the Board issued a decision on August 21, 2008. It ruled that Johnson was not entitled to service connection for his claimed disabilities, and that a medical examination would not be ordered pursuant to 38 C.F.R. § 3.159(c)(4). That provision provides:

A medical examination or medical opinion is necessary if the information and evidence of recorddoes not contain sufficient competent medical evidence to decide the claim, but:

(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;

(B) Establishes that the veteran suffered an event, injury or disease in service, orJOHNSON v. DVA 4

has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and

(C) Indicates that the claimed disability orsymptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.

38 C.F.R. § 3.159(c)(4)(i).

The Board based its decision upon a review of the medical evidence in the record, including a July 1982 orthopedic consultation report, medical examination reports from March of 1986 and April of 1980, a December 1990 report from Johnson’s primary care physician, a January 1992 letter from his primary care physician, a January 1991 report pursuant to the Troop Medical clinic evaluation, an April 1991 letter from Johnson’s orthopedic surgeon, and a number of other medical records. The Board further considered the testimony of Johnson’s wife and noted that she was competent to provide a relevant medical opinion due to the fact that she was a registered nurse. However, the Board refused to consider Johnson’s own testimony regarding the continuity of his injuries, and his belief that they were aggravated by his one day of
INACDUTRA. The Board stated that Johnson “is not amedical professional, and therefore his beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis andJOHNSON v. DVA 5

absent a professional medical opinion linking a current disorder to service, service connection cannot be granted.”App. 33. The Board concluded that the competent medical evidence did not establish that any of Johnson’s disorders or injuries were aggravated by his one day of
INACDUTRA.

Johnson appealed the Board decision to the Veterans
Court. The Veterans Court affirmed the decision of the Board on November 13, 2009. Johnson v. Shinseki , No. 08-2809, 2009 WL 3784953 (Vet. App. Nov. 13, 2009). The
Veterans Court held that the Board had not erred in finding that the evidence in the record did not support
Johnson’s claims that his one day of INACDUTRA aggravated either his pre-existing knee condition or the injuries
he suffered in his December 1990 car accident. The Veterans Court also rejected Johnson’s contention that the Board ignored his wife’s testimony. The Veterans Court noted that the Board did consider her testimony but simply found the other medical evidence in the record to be more probative. The Veterans Court did not address whether the Board erred in refusing to consider Johnson’s own lay testimony. 1 The Veterans Court also ruled thatthe Board did not err in refusing to order a further medical examination.

Johnson timely appealed to this court.

1 Before the Veterans Court, Johnson specifically referenced his brief in his prior appeal to the Veterans Court. That brief raised the issue of the Board’s failure to consider Johnson’s lay testimony.JOHNSON v. DVA 6

D ISCUSSION

This court’s jurisdiction to review decisions by the
Veterans Court is limited. We “have exclusive jurisdiction to review and decide an y challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack thejurisdiction to 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.” Id. § 7292(d)(2).

Johnson argues that the Ve terans Court erred as a
matter of law when it failed to consider his lay evidence in deciding the issue of service connection and the question
of whether he was entitled to a medical examination. Specifically, Johnson contends that “the Board erred as a matter of law by finding [his ] statements concerning the continuity of [his] symptoms had to be ‘backed up’ by medical evidence.” Claimant-Appellant’s Br.

, attachment
item no. 4. Johnson also asserts that the Veterans Courterred by affirming the Board’s determination that Johnson’s wife did not qualify as a “medical expert” and by finding that the opinion of Jo hnson’s wife was insufficient to establish his claim. Claimant-Appellant’s Br., attachment items nos. 2-5; Reply Br . of Claimant-Appellant 2-3. The government responds that Johnson’s appeal concernspurely factual issues beyond our jurisdiction. The government further asserts that, jurisdictional considerations aside, “there was an abundance of medical evidence upon which the Board relied in reaching its decision on Mr. Johnson’s claim, including the testimony offered byMr. Johnson’s wife, which the Board recognized constituted competent medical evidence.” RespondentAppellee’s Br. at 9.JOHNSON v. DVA 7

We conclude we have jurisdiction over Johnson’s appeal with respect to the lega l issues he raises. Johnson contends that the Veterans Court, in denying serviceconnection and in denying Johnson a medical examination, misinterpreted and misapplied the governing statutory provisions. This is the type of legal issue we have jurisdiction to review. See Waters v. Shinseki , 601 F.3d 1274, 1276 (Fed. Cir. 2010).

As an initial matter, we hold that the Veterans Courtdid not err in affirming the Board’s determination regarding the opinion of Johnson’s wife. The Veterans Court properly concluded that the Board did in fact consider the opinion of Johnson’s wife re garding Johnson’s conditions but “merely found her opinion to be less probative than the other medical evidence of record, a determination that is well within the Board’s purview.” Johnson , 2009 WL 3784953, slip op. at *3.

We reach a different result with regard to Johnson’stestimony about his injuries that were allegedly aggravated by his one day of INACDUTRA. The VeteransCourt did not explain why the Board’s treatment of Johnson’s testimony was appropriate. The language in the Board’s opinion suggests it did not regard Johnson’s testimony as competent. Indeed, the Board stated that Johnson “is not a medical professional, and therefore his
beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis and absent a professional medical opinion linking a current disorder to service, service connection cannot be granted.” App. 33. The VeteransCourt appears to have recognized that the correct standard for the consideration of lay evidence under Jandreau
v. Nicholson , 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), is that “[l]ay evidence can be competent and sufficient toJOHNSON v. DVA 8

establish a diagnosis when (1) a layperson is competent toidentify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” See Johnson

, 2009 WL 3784953, slip op. at *2 (q uoting the first prong of
the Jandreau framework). We recently held in Colantonio v. Shinseki , No. 2009-7067, 2010 WL 2163002 (Fed. Cir. June 1, 2010), and in Waters , 601 F.3d at 1278, that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. Here, the Veterans Court did not address the question of whether the Board in this case departed from the correct standard with regard to Johnson’s lay testimony both in connection withthe ultimate question of service connection and the question of whether a further medical examination should be
ordered.

We therefore affirm-in-part, vacate-in-part, and remand for the Veterans Court to address whether the Board erred by disregarding Johnson’s lay testimony.

AFFIRMED-IN-PART, VACATED-IN-PART, and
REMANDED

C OSTS

No costs.