NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

GEORGE E. JOHNSON, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7060 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in 

case no. 08-2809, Judge Alan G. Lance, Sr. 

___________________________ 

Decided: June 10, 2010 

___________________________ 

GEORGE E. JOHNSON, of Little Rock, Arkansas, pro se. 

ANUJ VOHRA, Trial Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent-appellee. 

With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN 
JOHNSON v. DVA 2

F. HOCKEY, JR., Assistant Director. Of counsel on the 

brief was DAVID J. BARRANS, Deputy Assistant General 

Counsel, United States Department of Veterans Affairs, 

of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, BRYSON, and DYK, Circuit 

Judges. 

PER CURIAM. 

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. 

BACKGROUND 

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 motor 

vehicle 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. 
3 JOHNSON v. DVA

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 with the VA based on this 

alleged aggravation of his injuries from the motor vehicle 

accident 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 record 

does 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, or 
JOHNSON 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 or 

symptoms 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 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 
5 JOHNSON v. DVA

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 that 

the 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

DISCUSSION

This court’s jurisdiction to review decisions by the 

Veterans Court is limited. We “have exclusive jurisdiction to review and decide any 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 the 

jurisdiction 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 Veterans 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 Court 

erred by affirming the Board’s determination that Johnson’s wife did not qualify as a “medical expert” and by 

finding that the opinion of Johnson’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 concerns 

purely 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 by 

Mr. Johnson’s wife, which the Board recognized constituted competent medical evidence.” RespondentAppellee’s Br. at 9. 
7 JOHNSON v. DVA

We conclude we have jurisdiction over Johnson’s appeal with respect to the legal issues he raises. Johnson 

contends that the Veterans Court, in denying service 

connection 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 Court 

did 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 regarding 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’s 

testimony about his injuries that were allegedly aggravated by his one day of INACDUTRA. The Veterans 

Court 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 Veterans 

Court 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 to 
JOHNSON v. DVA 8

establish a diagnosis when (1) a layperson is competent to 

identify 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 (quoting 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 with 

the 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 

COSTS

 No costs.