UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 09-3525

R I C K K. K

A H A N A , A P P E L L A N T ,

V

. E R I C K. S H I N S E K I , S E C R E T A R Y O F V E T E R A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls

(De cided June 15, 2011)

Sandra W . W ischow , of Richmond, Virg inia, was on the br ief for the appe llant.

W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; Nisha C. W agle , Acting Deputy Assistant Gene ral Counsel; and Thomas E. Sullivan , all of Washington, D.C.,
wer e on the br ief for

the appe llee.

Be fore MOORMAN, L ANCE, and SCHOEL EN, Judges

. S CHOEL EN, Judge , filed the opinion of the Court. L ANCE, Judge , filed an opinion
concur ring in the result.
SCHOEL EN, Judge : The appe llant, Rick K. Kaha na, appe als throug h counsel the portion of an Aug ust 10, 2009, Boa rd of Veter ans' Appea ls (B oard) decision that denied him entitlement to service connec tion for a rig ht knee disability including as seconda ry to a service -conne cted left knee disability

. Record of Procee dings (R.) at 3-17. This appea l is timely , and the Court has jurisdiction

1
to revie w the Boa

rd' s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)

. The question befor e the panel is whether the Boa rd' s finding s conce rning the cre dibilit y of the appellant' s lay statements

The Boar d, in the same de cision, g rante d the appe llant service connec tion for a low back 1 disability

. The Boa

rd noted that "some level of back problem in service as a result of his kickboxi ng activities is not unrea sonable" and relied on a Dec ember 2008 VA examiner, who found that it was as likely as not tha t the appellant' s low back disability was rela ted to the se falls in service

. Record of Proce eding s (R.) at 14.conflict with the Court's holding in Colvin v. Derwinski , 1 Vet.App. 171 (1991). Be cause the Court

holds that the Boa

rd err ed in making a medical deter mination conce rning the sever ity of an anter ior

cruc iate liga

ment (A C L ) in violation of Colvin , the Court will vacate the portion of the Boa rd' s dec i s i o n deny ing the appellant entitlement to service connec tion for a rig ht knee disability and

rema nd the matter f

or fur ther proc eeding s consistent with this opi nion.

I. BACKG ROUND A. Fa cts The appellant serve d on active duty in the U.S. Army from September 1976 until September 1979. R. at 737. The appe llant's service medical rec ords (SMRs) a nd service separ ation repor t of medical hist ory include ex tensive r ef er ence s to in-servic e inj uries to his left knee. R. at 613-708, 613-15. There is no ref

ere nce to an injury to the rig ht knee in the appell an t 's s er v i ce separ ation
repor t. Id. By Marc h 1 9 8 0 , t h e ap p el lant had been g rante d service connec tion for his left knee 2 injuries. R. at 603. I n April 1993, Dr. Fr eder ick G. Nicola, the appellant' s private orthopedist, perf ormed arthrosc opic surg ery and an ACL rec onstruction on the appellant' s rig ht knee. R. at 262. Acc ording 3
to the rec ords of Dr. Sam Ba kshian, the appellant' s left ACL was surg ically repa ired for the first time in the ear ly 1990s. R. at 558. Dr. Ba kshian also repor

ted that the appellant injured his back and both knees in 1995 while pe rfor ming a s a stuntman. R. at 509. Dr. Nicola subsequently

perf ormed a

I n the decision here on appea l, the Board found that ther e i s n o ev i dence of a rig ht knee 2 injury in the appellant' s SMRs

. R. at 14. The Court notes that the rec ord contains a May 16, 1978, clinical rec ord, which repor ted "e ffusion sighte d r[ight] patella" and incre ased pain on palpation and
on leg lift of the medial and latera l meniscus reg ions and a limit ed rang e of motion. R. at 634. The appellant makes no ref

ere nce to this rec ord cite and does not specific ally dispute the Boa rd' s finding of no SMR evidenc e of a rig ht knee injury in service

. Neve rtheless, the appellant maintains that he injured his rig ht knee in service while participa ting in a Tae Kwon Do match in Kore a and did seek medical a ttention at that time and was told it was " just a sprain." Appellant' s Br ief a t 10.
The April 1993 date for the appellant' s rig ht knee surg ery perf ormed by Dr. Ni co l a wa s 3
rec orded in a clinical rec ord. Acc ording to the appellant' s medical history contained in a VA medical examination repor

t, the first surg ical repa ir o f a rig ht ACL tear occur red in 1994. R. at 58. I n J anuar y 2002, Dr. Nicola confirm ed that he had perf ormed a rig ht ACL rec onstruction on the appellant, but did not indicate the date. R. at 578.
2bilatera l ACL rec onstruction. Id.

The appellant was provided a hearing befor e the B oard in Septembe r 2007. R. at 306-26. There , he stated that he injured his rig ht knee in service , and was unsure why th e i n j u ry d i d not appea r in his SMRs

. R. at 311. He rela ted that his orig inal left knee injury was not fix ed proper ly , and that led him to put too m u ch p re s s u re o n h is rig ht leg so that when he was in a kickboxi ng competition in 1978 in Kore a he "g ot kicked" and "g ot knocked down" and the rig ht knee "sna pped." R. at 311, 321. The appellant said "it was another AC L i n j u ry
. " R. at 321. The appellant also
repor ted that he sustained an additional injury to his rig ht knee following service , but attributed both the in-servic e and postservice injuries to the fac t that he continually favor ed his left leg

. R. at 325. Following the appellant' s hear ing, in November 2007, the Boa rd rema nded the matter for additional development, which included providing the appellant with a VA medical examination "to deter mine the likely etiology of [hi s] cur rent rig ht kne e
. . . disabilit[ y ]." R. a t 300- 05. The Boa rd noted: The veter an has not rec eived a VA examination to specific ally evalua te whether there is a rela tionship betwee n his rig ht knee

. . . disabilit[ y ] and his military service

. . . . As he has made reasonable allegations reg arding the prese nce of such a rela tionship, the Boa rd finds that such a VA examination is war rante d prior to final adjudication of his claim. R. at 302 (emphasis adde d). I n a Dec ember 2008 VA examination repor t, the examiner rec orded the appellant' s asser tions that his rig ht knee snapped during an in-servic e kic k b o x ing competition. R. at 58. The appellant stated that he w as see n at a c linic and was told he ha d only sustained a spra in. Id. He related tha t he continued to ha

ve problems following his discha rg e, and was eventua lly diag nosed with a rig ht ACL tear that require d surg ical re pair in the 1990s. Id. The ex aminer concluded that the appellant injured hi s rig ht knee while in service in 1979, but noted that the appellant did not seek trea tment until the 1990s. R. at 73-74. The examiner also conclude d that the appellant' s rig ht knee injury resulted from his habit of putting more weig ht on his rig ht knee afte r numerous left knee injuries. R. at 74. I n re ac h i n g her conclusions, the examiner revie wed private medical rec ords, but did not revie w SMRS or VA rec ords, and stated that she based her opinion on the history g iven by the appe llant and the re cords of Dr. Nic ola. Id.

3VA re q u es ted that the claims folder be returne d to the examiner who completed th e

Dec ember 2008 examination for "a ddendum, opinion[ ,] and r[a]t ionale for opini on." R. at 54. Fur ther instructions on the re quest stated: Ex amination repor

t states SMR[ ]s NOT revie we [d ]. [S o c ia l Se c u r it y A d mi n is tr ation]
rec ords show [appellant] sustained injuries in 1994 seconda ry to work as a stuntman. No rig ht kne e injury

in service . I njuries sustained post-ser vice wer e not disc ussed. Id. Subsequently , in a Marc h 2009 VA examination repor t, the same examiner who had perf ormed the 2008 examination noted t hat t he ap p ell ant reported an in-servic e inj ury to his rig ht knee, but that there was no documentation in his SMRs of a rig ht knee injury

. R. at 4 7 -4 8

. T h e examiner conclude d that the appellant' s rig ht knee injury is not rela ted to his milit ary service

. R. at 48. As rationale for her decision, the examiner stated that "[t]here is no documentation of rig ht knee injury in the [appellant' s SMRs ] to support [hi s] claim." R. at 48-49. The examiner, discussing the appellant' s private medical rec ords, noted that, while Dr. Nicola' s letter indicates an in-servic e rig ht knee in j u ry , rec ords from Dr. S am Bakshian indi cate that the appellant's right knee ACL tear was from a 1994 work-r elated injury

. R. at 48. The examiner further found that the appellant' s rig ht knee condition "is not felt to be c aused by or re lated to" his left knee c ondition. R . at 49. As rationale , the examiner stated that the appellant' s injury , an ACL ligament sprain , "r es u l t ed from a specific
trauma incident and is not an overuse ty pe of injury

. Medica l rec ords revie wed did not support that a rig ht knee injury

occur red dur ing the [appellant' s] s ervic e but rathe r was a work-r elated injury ." Id

. The Boa

rd, in its Aug ust 10, 2009, decision here on appea l, denied the appellant entitlement to service connec tion for a rig ht knee disabilit y including as seconda ry to a service- connec ted left knee disability

. The Boa

rd noted that the appellant' s SMRs show that he injured his left knee while in service but do not show that he injured his rig ht knee. R. at 14. The Boar d then found that the appellant' s asser

tion that he tore his rig ht ACL during ser v i ce wa s n o t cre dible. R. at 14-15. The Boa rd also found that the appellant was not competent to "pr ovide an opinion reg arding medical nexus." R. at 16. The Boa rd found that t h e ev i dence failed to establish any continuity of
sy mptomatology in his rig ht knee afte r service , and the leng thy g ap betwee n his service and the first evidenc e of a rig ht knee disorder in 1993 is "a fac tor ag ainst a finding that the disability was incurre d

4or ag g rava ted in service ." Id.

Reg arding the Marc h 2009 VA medical opinion, the Boa rd found that it " provides spec ific probative e vidence weig hing a g ainst a finding that the [appellant' s] current rig ht knee disabilit y is rela ted to service or that it was cause d or ag g rava ted by the [appellant' s] service [-] connec ted left knee disa bility ." R. a t 16. B. A rg uments on Appea l The appellant arg ues that the Boa rd made an improper medical finding based on the nature of his claimed injury when it found that, had the appellant sustained such an injury in service , it would have require d trea

tment and thus should have appea red in his SMRs

. Appellant' s Br ief (B r.)
at 8-9. T h e appellant also contends that VA, when it reque sted a revised medical opinion, improperly impinged on the examiner' s impartiality by stating to the examiner that the appellant had sustained no rig ht knee injury in service

. Id . at 11-13. F inally , the appe llant arg ues that the B oard failed to provide an adequate statement of rea sons or bases for its decision beca use it reje cted his lay testimony based on a lack of supporting medical rec ords and that the revised medi ca l o p i n ion is inadequa te bec ause it is based on a n inacc urate fac tual premise. Id. at 8-9, 13-17. The Secre tary arg ues that the Boa rd' s finding that the appellant' s injury should have require d medical trea tment w as not a n improper medical finding , but pe rmissible a s an "inf ere nce based on the evidence." Secre tary ' s Br

. at 12. The S ecr etar y also asse rt s t hat t he VA examiner, in her first opinion, relied only on medical hist ory as provided by the appellant and p ri v ate medical recor ds. Id. at 14. Her opinion chang ed, the Secre tary contends, afte r revie wing other evidenc e found in the claims file. Id. The S ecr etar y further arg ues t hat VA asked for a revised opinion for a number of

rea sons, and that the Ag ency did nothing to solicit or prede termine the outcome of the examination. Id. at 15-16. The outcome of the revised examination, the Secre tary arg ues, was a ref lection of the evidenc e of r ecor d and not tainted by bias or impartiality

. Id. at 16-17.

II. ANALYSIS Establishing service connec tion g ener ally require s medical or, in cer tain circ umstances, lay evidenc e of (1) a curr ent di sability ; (2) incur renc e or a g g rava tion of a disease or injury in service ; and (3) a nexus betwee n the claimed in-servi ce i n j u ry o r disease and the curr ent disability

. See

5Davidson v. Shinseki , 581 F.3d 1313, 1316 (F ed. Cir. 2009); Hickson v. W est , 12 Vet.App. 247, 252 (1999); Caluza v. Brown , 7 Vet.App. 498, 506 (1995), aff' d per curiam , 78 F.3d 604 (F ed. Cir. 1996) (table)

. A finding of service connec tion is a finding of fac t that the Court revie ws under the "c lear ly

err oneous" standard of

revie w. See D

yme nt v. W

est , 13 Vet.App. 141, 144 ( 1999). When deciding a matter, the Boa rd must includ e i n i t s d ec i sion a written statement of the

rea sons or bases for its finding s and conclusions, adequa te to enable an appellant to understand the
prec ise basis for the Boa

rd' s decision as well as to fac i l i t at e revie w in this Court. See 38 U.S.C. § 7104(d)( 1); Allday v. Brow n , 7 Vet.App. 517, 527 (1995); Gilber t v. Derwi nski , 1 Vet.App. 49, 56-57 (1990). To comply with this require ment, the Boa rd must analy

ze the cre dibilit y and probative value of the evidenc e, acc ount for the evidenc e that it finds persua sive or unpersua sive, and provide the rea sons for its reje ction of any materia l evidenc e fav o ra b l e to the claimant. See Caluza , 7 Vet.App. a t 506; Gilbert , 1 Vet.App. a t 57. A. L ay Testimony

4 The Boa rd, in its role as fac tfinder, "is oblig a t ed to , and fully justified in, deter mining

We g ener ally ag ree with our colleag ue that too often the Boa rd makes overbr oad cate g orica l 4 statements reg arding the competenc y and cre dibilit y of lay testimony

. Howeve r, our disag ree ment with our colleag ue' s commentar y on the proper evalua

tion of lay evidenc e starts at its base. Where
our colleag ue beg ins with the g ener al proposition that lay witnesses g ener ally are not competent to provid e ev i d en ce on matters that require medical expertise, we understand the Fe dera l Circuit's direc tion in this are a to beg in with the basic premise that "in the veter ans' cont ex t , t ra d i tional requirem en ts for admissibili ty have been rela x ed." Jandreau v. Nicholson , 492 F.3d 1372, 1377 (F ed. Cir. 2007). Thus, the Fe dera l Circuit has flatly reje cted the view that "c ompetent medical evidenc e is require d

. . . [when] the deter minative issue involves either medical etiology or a medical diag nosis." Id. at 1376-77 (e m p h as i s added)

. The Boa rd is require d to consider "a ll pertinent
m edical and lay evidenc e." 38 U.S.C. § 1154(a) ; see also 38 U.S.C. § 5107(b); 38 C

. F. R

. § § 3.303(a) , 3.307(b) (2010). When considering such lay evidenc e, the Boa rd should deter

mine, on a case -to-ca se basis, whether the ve tera n' s particular

disability is the ty pe of disabilit y for which lay evidenc e is comp et en t

. See Jandreau , 492 F.3d at 1376-77 (cited in Robinson v. Shinseki , 312 F. App' x
. 336, 339, No. 2008-7096, 2009 WL 524737, at *2-3 (F ed. Cir. Mar. 3, 2 009) (re manding the matter for consideration of the appellant' s lay evidenc e, which require s a "two- step analy sis" that beg ins with an eva luation of whethe r the ve tera n' s disability

is the ty pe of injury for wh i ch lay evidenc e is competent) ). I f the disability is of the ty pe for which lay ev i d en ce i s competent, the B oard must weig h that evidenc e aga inst the other evidenc e of r ecor d in making its deter minations reg arding the exis tence of service connec tion. See Buchanan v. Nicholson , 451 F.3d 1331, 1336-37 (F ed. Cir. 2006).
6whether

lay evidenc e is c redible in a

nd of itself." Buchanan , 451 F.3d a t 1337 (emphasis adde d). Also, a lay

person may be competen t "t o establish a diagnosis of a condition when (1) a lay person is competent to i d en t i fy t he medical condition, (2) the lay person is repor

ting a contempora

neous medical diag nosis, or

(3) lay testimony descr ibing sy

mptoms at the time suppor ts a later diag nosis by a medical profe ssional." Jandreau , 492 F.3d at 1377 (footnote omitted). The Boa rd reje cted the appellant' s lay

statements base d both on cre dibilit y and compe tency

. 1. Credibilit

y I n finding that the appe llant's state ments lack c redibility , the B oard state d: Given that a rig ht ACL tear is quite a signif

icant injury , one would expect to see at least som e d o cu m en t ati on of it in the [S MRs]

. Also, one would expect that the [appellant] would have mentioned this rig ht knee i n j u ry o n his repor

t of medical his t o ry at separ ation[,] but instead this document shows only that the [appellant]
re p o rt ed t wo separ ate injuries to the left knee. I n addition[ ,] the Boa rd notes th at when the [appellant] initially filed his claim, he did not a lleg e a rig ht kne e injury in service

. I nstead he alleg ed only that he incurre d a left knee injury and that his r ight k n ee d i sability was seconda ry to that injury

. The [appellant] then made simi l ar contentions in his Notice of Disag ree ment. For all of these rea sons, the Boa rd does not find his more rec ent asser tions of rig ht knee injury

in service cre dible.
R. at 15. Reg arding the Boa

rd' s statement that, g iven the nature of the appellant' s injury , some documentation in his SMRs is expected, t h e C ourt ag ree s with the appellant' s arg ument that the Boa rd violated the Court' s holding in Colvin , supra
. Appellant' s Br . at 8-9. I n Colvin , the Court 5 held that the Boa

rd "must consider only independe nt medical evidenc e to s u pport [i ts] finding s rathe r than p ro v i de [i ts] own medical judgme nt in the g uise of a Boa rd opinion." 1 Vet.App. at 172. Requiring the Boa

rd to support its medical deter minations with ind ep en d en t medical evidenc e "e nsures that all medical evidenc e contra ry to the veter an' s claim will be made known to him and be

a part of the rec ord befor e this Co u rt

. " Id

. at 175. I n this case , the Boa rd is making a medical deter mination as to the rela tive sever ity , common sy mptomatology , and usual trea tment of an ACL injury without citing to any independe nt medical evidenc e to corr oborate its finding

. I ndeed, the

I n his separ ate statement, our colleag ue is in ag ree ment with this stated Colvin violation and 5 the re asoning of the majority that follows on this point

.

7rec ord is devoid of any medical evidenc e establish i ng the rela tive sever ity , common sy mptomatology , and usual trea tment of an ACL injury

. There fore , the Court holds that the Boa rd clea rly err ed when it found the appellant not to be credible based on its deter mination that a particula r injury , which is alleg ed to have occur red in ser vice, is of the ty

pe that should have been documented in the se rvice rec ords and wa s not. The Secre tary arg

ues that the Boa

rd was draw ing a permis s i b l e "i n fer ence based on the evidenc e." Secre tary ' s Br

. at 12. Dra wing an "inf

ere nce based on the evidenc e" is at the hear t of any adjudication. However , under Colvin , when a Boa rd i nfer ence resul t s i n a medical deter mination, the basis for that infere nce must be independe nt and it must be cited. The Court thus finds that the Boa rd has violated Colvin , and its sta t em en t o f re asons or bases for its deter mination that the appellant' s lay statements lack cre dibilit y is inadequa te. See 38 U.S.C. § 7104(d)( 1); Allday , Caluza , and Gilbert , all supra. There fore , in considering the matter on rema nd, the Boa

rd must rea ssess the weig ht and cre d i b i l i t y o f the appellant' s lay statements and adequately explain any neg ative

cre dibilit y deter

mination. See W

ashington v

. Nicholson , 19 Vet.App. 362, 367-68 (2005) (it is the Boa rd' s responsibility , as fac tfinder, to deter mine the cre dibilit y and weig ht to be g i v en t o the evidenc e). 2. Competenc y The Boa rd, in reje cting the appel l an t 's lay statements based on competenc y , found that he "doe s contend that his curr ent rig ht knee disability is rela ted to service and to his service -conne cted left knee disability , [but ] as a lay person he is not competent to provide an opinion reg arding medical nexus." R. at 16. This finding is leg ally unsupportable. This Court has held that "[l]ay testimony is competent

. . . to establish the prese nce of observa ble sy mptomatology and ' may provide sufficie nt support for a claim of service connec tion.'" Barr v. Nicholson , 21 Vet.App. 303, 307 (2007) (quoting L a yn o v. Brown , 6 Vet.App. 465, 469 (1994)) ; see also Jandreau , supra; Charles v. Princi p i , 16 Vet.App. 370, 374 (2002) (stati n g that a lay person is competent to offe r testimony reg arding
sy mptoms capa

ble of observa tion). And, as stated ear lier, there is no cate g orica l require ment of

"' competent medic al evidenc e . . . [when] the de terminative issue involves either me dical etiolog y

or a medical diag nosis.'" Davidson , 581 F.3d at 1316 (quoting Jandreau , 492 F.3d at 1377). As a result, the Court conclude s that the Boa rd' s cate g orica l reje ction and failure to analy ze and weig h the

8appellant' s lay eviden ce i n acc ordanc e with established prece dent renders it s statement of rea sons

or base s inadequa te. See 38 U.S.C. § 7104(d)(1); Allday , Caluza , and Gilbert , all supra.

B. D ece mber 2008 a

nd Marc h 2009 VA Medic al Examinations T h e S ecr etar

y ' s duty to assist includes "pr oviding a medical examination or obtaining a medical opinion when such an examination or opinion is nece ssary to make a decision on the claim." 38 U.S.C. § 5103A(d)( 1); see also Gree n v. Derwinski , 1 Vet.App. 121, 124 (1991). This Court has held t h at a medical opinion is adequate "w here it is based on consideration of the veter an' s prior medical history and examinations and also descr ibes the disability , if any , in sufficie nt detail so that the Boa rd' s ' evalua tion of the claimed disability will be a fully informed one.' " Stefl v. Nicholson , 21 Vet.App. 120, 123 ( 2007) (quoting Ardison v. Brown , 6 Vet.App. 405, 407 ( 1994)). I n evalua ting disability claims, the Boa rd is oblige d to reje ct insufficiently detailed medical
repor ts. 38 C.F.R. § 4.2 (2010) (" I f a diag nosis is not supported by the finding s on the examination
repor t or if the rep o rt d o es n o t contain sufficie nt detail, it is incumbent upon the rating board to
return the repor

t as inadequa

te for evalua

ti o n p u rp oses." ). The appellant does not dispute VA' s authority to reque st the Dec ember 2008 VA examiner to clar ify her opinion. I nstead, the appellant
arg ues that the statement "[n]o rig ht knee injury in service " (R. at 54) made by VA to the examiner in its reque st for a revised report infringe d upon VA' s responsibility to observe the basic tenets of fair play while g ather ing evid en ce
. Appellant' s Br

. at 11. The appellant' s arg ument relies on prec edent se t in Austin v. Brown , 6 Vet.App. 547, 552 ( 1994), and a rela ted line of c ases. I n Austin , the B oard' s reque st f or a medica l opinion contained a se ntence stating: " Clearly , [ t h e v eteran' s] in-servic e chest injury was not rela ted to his fata l pulmonary emphy sema." 6 Vet.App. a t 549. The Court found that such a statement by

the B oard indica tes that " there was no proce ss at work to ensure impartiality , and cr eate s the impression that the B oard w as not secur ing evidenc e to de termine the corr ect outcome, but r ather to suppor t a prede termined outcome." Id. at 552. The Court held: A [Board] decision which relies upon a [Board] medical adviser' s opinion obtaine d by a process t hat does not ensure an im partial opini on violates Thurbe r [ v. Brown , 5 Vet.App. 119 (1993)]-ty pe fair proce ss. We hold that basic fair play require s that evidenc e be pr ocure d by the ag ency in a n impartial, unbiased, and neutr al manner

. The proc ess employ ed her e ca nnot be sustained as f

air.

9Id .; see also Bielby v. Brown , 7 Vet.App. 260, 268 (1994) (holding that VA must pose a hy pothetical question to an independe nt medical expert that "ma y not sug g est an answe r or limit the field of inquiry of the expert," and relianc e on an independe nt medical opinion wher e the Boa rd constraine d th e s co p e of inquiry is improper beca use such constraints resulted in "limiting [t he examiner' s] investiga tion and tainting the results" ); Colayong v. W est , 12 Vet.App. 524, 535 (1999) (holding that VA err ed beca

use the nature of its que stions sug g ested an answe r and impermissibly narr owed the examiner' s field of inquiry ). The Secre tary attempts to distinguish Austin

. Secre tary ' s Br

. at 15. He arg ues that, in Austin , the Boa rd "pr ovided the answe r to the examiner in advanc e of the examination," wher eas in this case , the Ag enc y as k ed fo r a new opinion for a number of rea sons, and thus the "[A]ge ncy was not soliciting a particula

r result, but pointing to the insufficienc ies in the 2008 opinion." Id. at 15-16. The Court is not convince d. Despite the other rea sons g iven to the examiner for a new opinion, the
reque st in this case was unequivoca l in stating that there was "[n]o rig ht knee injury in service ." R. 6
at 54. This statement makes the matter at hand m u ch l i k e A u s tin , wher e VA made an expli cit
statement of fac t to an examiner that spoke to the crux of the examiner' s opinion and of the case in
g ener al. The C o u rt also notes that at the time of the second examination reque st, there was no

7 adver se cr edibility

deter mination concer

ning the appellant' s lay

asser tions that he injured hi s rig ht knee in service

. Contra Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical opinion based upon the appellant' s acc ount of his medical history and service backg round was of no probative value wher e the rec itations by the appellant had already been rejec ted by the 1954 reg ional office decision). The statement i n this case direc tly contra dicted the f indings of the VA examiner in he r initial De cembe r 2008 opinion that the appellant injured his r ight knee in se rvice

. R. a t 73.

The Court notes that this statement by VA in the examination reque st was g iven even 6 though there is an SMR dated May 16, 1978, that appea rs to ref er to an eff

usion of the rig ht knee cap with incre ased pain upon palpation of the meniscus reg ions and a limit ed rang e of motion. R. at 634. We express no opinion now as to the circumstances under which it would be appropria te 7 for the Boa

rd t o inform an examiner that a fact m ust b e ac ce p t ed as true. Such an opini on would depend on the evidenc e (or medical evidenc e) prese nted in a particula r case
. Her e, the statement by the Boa rd that there was no rig ht kne e injury in se rvice was not supported by the rec ord ( see supra note 6) a nd spoke to a c rucia l fac t at issue for whic h a medica l opinion was require d.
10The e x aminer subse quently rea ched the opposite conclusion i n her March 2009 opinion – that the appellant' s rig ht knee injury was not re lated to servic e. R. a t 42. The Court is left unsure whe ther the examiner revised her opinion based on additional ev i d ence she revie wed or beca use she felt

coer ced by the Ag ency ' s procla mation ag ainst her ear lier conclusion. There fore , the Court finds the
reque st violated the Boa rd' s duty to procur e evidenc e in an "impar tial, unbiased, and neutra l

manner ." Austin , 6 Vet.App. a t 552; see also Bielby and Colayong , both supra
. The Secre tary further arg ues that since the SMRs show no rig ht knee injury during service , "the re was no bias or impartiality in the addendum reque st." Secre tary ' s Br

. at 16. The Court does
not a g ree
. As noted above, there appea rs to be one notation in the SMRs as to a rig ht kne e injury

. R. at 634. I n any event, the lack of medical evidenc e in service does not co nstitut e substantive
neg ative evidenc e. McLendon v. Nicholson , 20 Vet.App. 79, 85 (2006). The examiner could have potentially deter

mined, based on other evidence o f record including lay statements and private medical opinions, that, reg ardle ss of the lack of doc u me n ta tion in the appellant' s SMRs , the appellant injured his rig ht knee in service

. The statement in the reque st that there was no rig ht knee injury in service indicated to the examiner that all of the evidenc e had alre ady been analy zed and a conclusion

rea ched, and thus impeded her impartiality

. On re m an d, the Boa rd should procur e an impartial medical opinion on which to base its decision. I n procur ing an opinion, the Boa rd is not prec luded from asking the phy sician (1) whether there is any medical rea son to acc ept or reje ct the proposition that had the appellant had a right knee injury in service , such injury could have lead to his curr ent condition; (2) what ty

pes of sy mptoms would have been cause d by the ty pe of ACL injury at issue; and (3) whether a rig ht knee injury as descr ibed in the SMRs (R. at 634) could have been mistaken for a sprain but was a

prec ursor to the c urre nt condition. Given this dispositi on, the Court will not, at this time, addre ss the other arg uments and issues raised by the appellant. See Best v. Principi , 15 Vet.App. 18, 20 (2001) (per curia m order ) (holding that "[a] narr ow decision prese rves for the appellant an o p p o rt u nity to arg ue those claimed err ors befor e the Boa

rd at the rea djudicati on, and, of course , befor e this Court in an appea l, should the Boa rd rule ag ainst him"). On rema nd, t h e ap pellant is fre e to submit additional evidenc e and
arg ument on the rema

nded matters, and the Boa rd is require d to consider any such rele vant evidenc e and arg ument. See Kay v. Principi , 16 Vet.App. 529, 534 (2002) (stating that, on rema nd, the Boa

rd

11must consider additio n al evidence and arg ument in assessing entitlement to benef it soug ht); Kutscherousky v. W

est , 12 Vet.App. 369, 372-73 (1999) (per curia m order ). The Court has held that "[a] rema nd is meant to entail a critica l examination of the justification for the decision." Fletche r v. Derwinski , 1 Vet.App. 394, 397 (1991). The Boar d must proce ed ex peditiously , in acc ordanc e wi t h 3 8 U. S.C. § 7112 (re quiring Secre tary to provide for "e x peditious trea tment" of claims

rema nded by the Court).

III. CONCLUSION After consideration of the appellant' s and Secre tary ' s pleading s, and a revie w of the rec ord, the porti on of t he Board' s Aug ust 10, 2009, decision deny ing the appellant serv i ce co nnection for

a rig ht knee disability is VACATED and the matter is REMAN DE D t o t h e Boa rd for further
proce eding s consistent with this decision.

L ANCE, Judge , concur

ring : Altho u gh I ag ree with the result rea ched by my colleag ues, I

am compelled to wr i t e s epar ately beca use the issues involved arise so fre quently as to justify additional clar ification. First, issues of witness cre dibilit y and compet en ce ar e among the most

common raised to us and the distinct i o n s b et we en various case s are often misunderstood or overlooke d. Second, the proper rela tionship betwee n the Boa rd and VA medical experts is also an

are a beset with confusion. This case prese nts an ideal fac t pattern to do more than simply state what the Boa rd did wrong
. Acc ording ly , I must addre ss in g rea ter detail how the Boa rd should approa ch these issues so that it may clea rly articula te its analy sis on these issues in the future.

I. THE RELATIONS HIP BETWEEN COMP ETE NCE AND C REDIBILIT Y The first common issue that this case demonstrates is the often blurred line b et ween competenc e and c redibility in the assig nment of we ight to lay testimony

. 1. Lay Competenc e I n g ener al, neither

lay witnesses nor members of the Boa rd ar e medica l experts. Thus, the beliefs of lay witnesses (including claimants) on issues of diag nosis a nd medical causa tion are not competent evidenc e in situations wher e those issues require medical expertise to resolve. Compare

12Jandreau v. Nicholson , 492 F.3d 1372, 1377 n.4 (F ed. Cir. 20 0 7 ) (n o ting that a lay person is not "c ompetent" to diag nose a form of canc er) , with Barr v. Nichol s o n , 2 1 Vet.App. 303, 309 (2007) (holding that a lay

person is competent to diag nose veric ose veins). Simi larly , in Colvin v. Derwinski , the Court held that the Boa rd "must consider on l y i n d ep endent medical evidenc e to support [i ts] finding s rathe r than provide [i ts] o wn m ed i cal judgme nt in the g uise of a Boa rd opinion." 1 Vet.App. at 171, 175 (1991); see also Maxson v. Gober , 230 F.3d 1330, 1333 (F ed. Cir. 2000) (h o l d i n g that the Boa rd is competent to consider "e vidence of a prolong ed period without medical complaint, along with other fac tors" in deter mining that a condition was not ag g rava ted by service ). The question of whether a particula r medical issue is bey ond the competenc e of a lay person

— including both claimants and Boa rd m ember s — must be determined o n a ca se-by -ca se basis. Jandreau , 492 F.3d at 1377. Simpl y put, any g iven medical issue is either simple enoug h to be within the realm of co m m o n k n o wl edge for lay claimants and adjudicator s or complex enoug h to require an expert opinion. Howeve r, I would reiter ate that even if a lay person is not competent to diag nose or deter mine the cause o f a particula

r condition, lay evidenc e is still competent to establish the occur renc e of observa ble events and medical sy mptoms. Davi dson v. Shinseki , 581 F.3d 1313, 1316 (F ed. Cir. 2 0 09). Acc ording ly , the Boa rd should avoid overbr oad statements about the compe t en ce o f lay persons and should car efully distinguish its trea tment of lay testimony o f s y m p t oms and its analy sis of lay competenc e on issues of diag nosis or causa tion. Boa rd decisions that make blanket
statements about lay competenc e while failing to acknow ledg e and dis cu s s the competent lay testimony of obser vable sy mptoms wil l fac e a r ocky road on a ppeal. M o re i m p ortantly , even if the Boa rd acts proper ly in deny ing a claim, it must clearl y communicate the basis of the denial so that the claimant and future reg ional office adjudicator s will

u n d er s t an d what ty

pes of evidenc e must be submitt ed in order to reope n the claim. See K en t

v. Nicholson , 20 Vet.App. 1, 9-11 (2006). Simpl y deny ing the claim with a terse se ntence that the lay evidenc e is not competent to establish the nature or orig in of the claimant' s disability will often leave it unclea

r whether the Boa

rd is a cce pting the claimant' s acc ount of what happene d in se rvice

or what post service sy

mptomatology was observe d. I n such ca s es , a re mand will often serve to illumi nate the basis of the decision not only to inform the claimant and the Court, but to ensure that

13a future attempt to reope n the claim ca n be prope rly

adjudicate d. 2. Credibilit

y Even wher e there are no competenc e issues, the value of medical evidenc e and opinions will fre quently turn on th e credibilit y of lay testimony

. A medical opinion based upon an incorre ct fac tual premise is of no probative value. See Reonal v. Brown , 5 Vet.App. 458, 461 (1993). Thus, 8 the Board, in its ro l e as factfinder , "is obli g ated to, and fully justified in, deter mining whether lay evidenc e is cre dible in and of itself." Buchanan v. Nicholson , 451 F.3d 1331, 1337 (F ed. Cir. 2006). I n deter mining whether lay evidenc e is cre dible, the Boa rd must fre quently consider whether there is corr oborating evidenc e that supports the witness' s acc ount or sug g ests that the witness may be untruthful or mistaken. I n doing so, the Boa rd must distinguish betwee n two distinct situations. I n some case s, there is a complete absenc e of any evidenc e to co rrobor ate or contra dict the testimony , while in other case s there is evidenc e that is rele vant either beca use it speaks direc tly to the issue or a llows a rea sonable infe renc e to be dr awn by the B oard a s fac tfinder. I n g ener al, the Boa

rd cannot deter

mine that a veter an' s lay evidenc e lacks cre dibilit y solely beca use it is not corr oborate d by contempora neous medical rec ords. Buchanan , 451 F.3d at 1336. I n case s involving disabiliti es rela ted to combat, VA must pre sume lay evidenc e that descr ibes the in-servic e disease or injury is cre dible so long as it is "c onsistent with the circ umstance, conditions,

or h ar d s hips of such service , notwithstanding the fac t that there is no officia l rec ord." 38 U.S.C. § 1154(b). This presumption is rebuttable only by clea r and convincing evidenc e. Collette v. Brown , 82 F.3d 3 8 9 , 393 (F ed. C ir. 1996). Howeve r, "the l ack of contempora neous m edica l rec ords m ay be a fac t that the Boa

rd can consider and weig h ag ai n s t a v et er an ' s lay evidenc e," when such consideration is not prohibited by 38 U.S.C. § 1154(b). Buchanan , 451 F.3d a t 1336.

I would note that an opinion based upon an incorrect fac tual premise is not the same as an 8 opinion based upon an incomplete fac tual premise. The Boa rd may assig n a lesser evidentiar y value to an opini on that is lacking in detail. Nieves- Rodriguez v. Pea ke , 2 2 Ve t

. Ap p
. 295, 302 (2008). Howeve r, the Boa

rd may not assume that additional information would nece s s ar i l y ch ange an expert' s opinion unless the issue falls within the competenc e of a lay person. Thus, an opinion that lacks de tails may

trig g er the duty to assist by indicating that a condition may be re lated to servic e, McLendon v. Nicholson , 20 Vet.App. 79, 83-84 (2006), and may lend some evidentiar y support to other opinions — favor able or unfavor able to the claim — that rea ch the same conclusion. NievesRodriguez , supra. 14There i s a wi d e v arie ty of evidenc e that may corr oborate or contra dict a lay witness' s

testimony , including prior consistent statements of the witness, prior inconsistent statements of the witness, and current medical evidence, such as an x -ra y showing the veter an has a heale d fra cture in the alleg edly injured area. Of course, thi s list is by no means e x clusive. Cf. Stefl v. Nicholson , 21 Vet.App. 120, 124 (2007) (providing a nonexclusive list of fac tors a phy sician m ay d i s cuss to support an opinion). One t y p e of evidenc e that often cause s confusion is contempora neous SMRs that do not

rec ord the alleg ed in-servic e disease or injury

. As discussed above, in case s involving combat, VA is prohibited from draw ing an infere nce from silence in the SMRs

. Howeve r, in case s wher e the infere nce is not prohibited, the B oard ma y use silence in the SMRs as contra dictory evidenc e only if the alleg ed injury , disease, or rela ted sy mptoms would ordinarily have been rec orded in the SMRs

. See Buczynsk

i v. Shinseki , 24 Vet.App. 221, 225-26 (2011) (noting that the Boa rd could not rely on silence in medical rec ords to conclude that the appellant' s injury was not "e x ceptionally repug nant" beca use there was no medical rea son for the examiner to a ddress that subjective conclusion); F E D

. R. E V I D

. 803(7) (the absenc e of an entry in a rec ord may be evidenc e ag ainst the exis tence of a fac t if such a f act would or dinarily

be re corde d). I n order to rely on this infere nce, the Boa rd must make two finding s. First, the Boa rd must find that the SMRs appea

r to be complete, at least in rele vant part. I f the SMRs are not complete in rele vant part, th en s i l ence in the SMRs is mere ly the absenc e of evidenc e and not substantive
neg ative evidence. See McLendon , 20 Vet.App. a t 85. I f the SMRs are c omplete in rele vant part,
t h en t h e Bo ard must find that injury , disease, or rela ted sy mptoms would ordinarily have been

rec orded ha d they occur

red. I n making this deter mination, the Board may

be re quired to consider the limit s of its own competenc e on medical issues. For ex am p l e, the Boa rd may rea sonably conclude that a compound fra ctu re o f a bone would have been observe d and rec orded, but would require medical evidence to determine whether a particular ty pe of canc er would have manifested observa ble sy mptoms in se rvice that likely would have been repor ted and rec orded. Cf. Jandreau , 492 F.3d a t 1377 n.4 (noting tha t a lay person is compe tent to identify a broke n leg , but not a form of ca ncer ).

153. Application

I n this case , the Boa

rd reje cted the appellant' s lay statements based both on competenc e and

cr ed i b i lity

. The Boa

rd deter mined that the nature and orig in of the appellant' s knee injury wer e medical issues be y ond his competenc e. R. at 16. As to cr edibility , the B oard state d: Given that a r ight ACL

tear is quite a signif

icant injury , one would expect to s ee at leas t s o m e d o cumentation of it in the [S MRs]

. Also, one would expect that the [appellant] would have mentioned this rig ht knee injury on h i s re p o rt of medical history at separ ation[,] but inst ea d t his document shows only that the [appellant] repor ted two separ ate injuries to the left knee. I n add i t i o n [ , ] t he Boa rd notes that when the [appellant] initially filed his claim, he did not alleg e a rig ht knee injury in service

. I nstead he alleg ed only that he incurre d a left knee injury and that his r ight knee disa b i l i t y wa s seconda ry to that injury

. The [appellant] then made simil ar contentions in his Notice of Disag ree ment. For all of these rea sons, the Boa rd does not find his more rec ent asser tions of rig ht knee injury

in service cre dible.
R. at 15. The flaw in the in Boa

rd' s analy sis is appar ent. Although it conclude d that the appellant was not comp et en t as a lay

person to provide a medical opinion as to his ACL injury , the Boa rd relied
upon its own lay opinion a bout the nature of the ACL injury to de termine that it wa s a "sig nificant injury " that would have been documented in the SMRs

. The Boa rd cannot have it both way s. Either this ty pe of injury is rela tively simple and within the com m o n knowledg e of a lay person or it is complex enoug h that expert opinion or t re at i s e ev i dence is require d to understand its orig ins,
prog ression, and sy

mptoms. Ba sed upon the development of the rec ord so far , the ACL injury here appea rs to fall clea

rly

on the side of being medically complex. The rec ord is devoid of any medical evidenc e establishing the common sy

mptomatology and usual trea tment of an ACL injury

. The rec ord does contain a May 16, 1978, clinical rec ord, which repor ted "e ffusion si ghted r[ight] patella" and incre ased pain on palpation and on leg lift of the medial and latera l meniscus reg ions a nd a limit ed rang e of motion. R. at 634. I t also contains the appellant' s testimony that he was seen at a clinic for a rig ht knee injury during service and was told that he had sustained only a sprain. R. at 58. I t is not appar ent whether the clinical rec ord can be evidenc e of an ACL injury in service or whether such an injury might have been misdiagnose d as a sprain. I t is also not clea r whether the appellant' s sy mptoms in service would have been of such sever ity that he would have likely repor ted t h em during his separ ation

16examination, particula rly if they had been inacc urate ly attributed to a sprain instead of a more sever e ACL injury

. Theref

ore, I ag ree with the appellant' s arg ument that the Boa rd violated the Court's holding in Colvin , supra , in finding that some documentation in his SMRs is expected as the Boa rd is not competent to make this deter mination based solely

on its own medical belief s.

II. THE RELATIONS HIP BETWEEN TH E BOARD AND VA M EDICAL EXP ERTS The second common issue that this case prese nts is the delicate balanc e betwee n the Boa rd' s primacy as a fa ct fi n d er and its obliga tion to seek expert assistance in resolving complex medical issues when a

ppropriate

. I n evalua ting disability claims, the Boa rd is oblige d to reje ct insufficiently detailed medical
repor ts. 38 C.F.R. § 4.2 (2010) (" I f a diag nosis is not supported by the finding s on the examination
repor t or if the repor

t does not contain s u ff

i ci en t d et ail , it is incumbent upon the rating board to
return the repor

t as inadequa

te for evalua tion purposes." ). A medical opinion is adequate "w here it is based on consideration of the veter an' s prior medical history and examinations and also descr ibes the disability , if any , in sufficie nt detail so that the Boa rd' s ' evalua

tion of the claimed disability will be a fully informed one.' " Stefl , 21 Vet.App. at 123 (quoting Ardison v. Brown , 6 Vet.App. 405, 407 (1994)) . I t nece ssarily

follows that the B oard ha s an oblig ation to rejec t medical opinions that are based upon a

n inacc urate fac tual premise. See Reonal , supra
. Although the basic require ment to obtain a detailed medical opinion based upon an acc urate fac tu al p remise is straig htforwa rd i n principle, thi s case demonstrates the ty pes of chicke n-or- eg g problems that fre quently arise in a sy stem wher e adjudicator s and experts do not conver se direc tly

. I ag ree with my

colleag ues that the re quest for a medical opinion in this c ase violated Austin

. The
reque st in this case was unequivoca l in stating that there was no rig ht knee injury during service

. This statement makes the c ase a t hand much like Austin , wher e VA made an expli cit statement of fac t to an examiner that a r easona ble phy sician would likely understand as a necessar y premise of the opinion being reque sted. As noted by the majority ' s opinion, the statement direc tly contra dicted the finding s of the VA examiner in her initial Dec ember 2008 opinion and in the subsequent Marc h 2009 opinion, the examiner found that the appe llant's r ight kne e injury was not relate d to service

. R. at 49. I n particula

r, her conclusion focuse d on whether the appellant' s ACL injury was seconda ry

17to his left knee condition and conclude d that it was not rela ted beca use it was a traumatic injury and
not an overuse injury

. Id. The opinion does not addre ss whether a traumatic injury to the rig ht knee

occur red and the rea der is left unsure whether the examiner revised her opinion based on additional evidenc e she revie wed or beca use she felt bound by the Boa rd' s appar ent finding ag ainst her ear lier conclusion. There fore , reg ardle ss of the intent of the reque st, the Boa rd' s cate g orica l statement must be rea d as limit ing the scope of the medical opinion, which had the result of violating Austin under the fa cts of this case

. I n this case , the opinion should have asked the phy sician whether there was any medical

rea son to acc ept or re

ject the pr oposition t hat the appellant had a rig ht kne e ACL injury that could have lead to his curr ent condition. Cf. Dave s v. Nicholson , 21 Vet.App. 46, 51-52 (2007) (whe re an examin e r s ta

te s th a t a dditional information may help resolve a disputed medical issue, the Secre tary ' s duty to assist require s the Secre tary to deter mine whether that information can be rea sonably obtained). The o pinion could have specific ally asked what ty pes of sy mptoms would have been

cause d by the ty

pe of ACL injury at issue and whether such an injury could have been mistaken for

a sprain or otherwise g one undiag nosed during service

. Had it done so, perha ps this rema

nd could have be en avoide d. Nonethele ss, I think it is vital to stress t h at i n m any case s it is perf ectly appropr iate for a reque st for a medical opinion to define the fac ts that a medical examiner must acc ept are true. Fa ctfinding is a responsibility that is ultimately committed to t h e Bo ar d and not the VA medical examiner

. S

ee W a s hington v. Nicholson , 19 Vet.App. 362, 367-68 (2005) (it is Boa rd' s duty to deter mine probative weig ht of evidenc e). As mentioned ear lier, wher e the duty to provide a medical opinion applies , the Boa

rd must obtain an opinion that is based upon the fac tual predic ate that it finds to be true. I n some case s, a medical opinion may help resolve cer tain kinds of disputed issues of fac t, such as whether a particula r injury occur

red in service or the prec ise nature of an intervening i n j u ry afte r service. As a result, in many case s, it may make sense for the Board to make specific finding s befor e rema

nding a matter and require a medical opinion to acc ept those finding s as true. I n other case s, it is better for the Boa rd to note that it needs to resolve a component fac tual question and then to a sk the phy sician to inc lude in the repor t a n opinion a s to w hether there is a ny medical

rea son to acc ept or re

ject the veter an' s testimony as to what oc curr ed in the past. When the B oard

18seeks su ch an o p i nion, the examiner should expli citly addre ss the issue, even if only to state that

there is no medical evidenc e that either supports or contra dict s t h e lay testimony

. Cf. Jones v. Shins eki , 23 Vet.App. 382, 390-9 1 (2010) (concluding that a medical examiner may repor t that

an issue of medical causa tion cannot be resolved without resor ting to specula tion if that conclusion is adequa tely

explained). Unfortuna tely , it is not alway s easy at the outset of a claim to ide ntify all potential theories of entit lement t hat have been raised or all the facts that must be determined t o ad eq u at el y resolve

eac h theory

. Unlike a courtroom setting wher e a s k i lled advocate can respond to an expert' s testimony and methodically work throug h all the issues that arise, VA' s sy stem for obtaining expert medical o pinions throug h reg ional office s by written request means that developing evidenc e in a complex case can be a piece meal proce ss. See Disabled Am. Veterans v. Sec'y of Veterans Affairs , 327 F.3d 1339, 1346-68 (F ed. Cir. 2003) (invalidating VA' s proposal to allow the Boa rd to develop

new evidenc e beca

use it would violate claimant' s rig ht to one revie w on appea l). I n many complex

case s, the understanding o f b oth the medical expert and the Boa rd will evolve throug h multipl e cy cles of reque sts and opinions, which may or may not be acc ompanied by additional development of other evidenc e. Howeve r, I would note that the number of iterations re q u i re d to cover all the issues can be substantially reduc ed if adjudicator s are expli cit as to whether any underly ing fac ts are in dispute at any g iven point and if medical experts are expli cit in stating how and why they are resolving any disputes as to the underly ing fac ts. Although this may take extra eff ort initially , in the long r un it will re duce the burden of avoidable r emands that VA too freque ntly inflicts upon itself and provide faster , clea

rer decisions to claimants that have too often been waiting for many y ear s for resolution of their c laims.

19