Board Erred in Denying Examination for Left Knee Disability
CCK Law: Our Vital Role in Veterans Law
Summary
The Veteran served on active duty in the Navy from July 1969 to September 1971, in the Army National Guard from June 1973 to August 1990, and in the Army Reserve from November 1994 to October 2010. In May 1989, he injured his left knee when he fell off of a wash rack and hit his knee on the concrete edge of a hole. The treating physician assessed him with a bruised left knee. The Veteran underwent two surgeries on his left knee in 1999 and 2010, but his knee continued to be painful. He filed a claim for service connection for a left knee disability in December 2010. The following June, the Regional Office denied the claim, and the Veteran timely disagreed and perfected his appeal to the Board of Veterans’ Appeals.
Board denied service connection
While the Veteran’s claim with the Board was pending, he testified as to how he sustained his left knee injury in a hearing before the Board. He also testified that he was on active duty for training when the injury occurred and he had experienced symptoms since the injury. One year later, the Board remanded the case to verify any and all periods of active duty for training. In December 2016, the Board denied the claim for service connection.
CCK appeals to the Court
CCK successfully appealed to the Court the Board’s denial of service connection for the Veteran’s left knee disability. In its decision, the Board found that it was not clear whether the Veteran was on a period of active military service when the left knee injury occurred. However, the Board concluded that even if the injury occurred during active service, a VA examination was not necessary. The Board found that the evidence did not satisfy the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), which requires an indication that the current disability may be related to the in-service injury.
CAVC agrees with CCK’s arguments
CCK argued, and the Court agreed, that the Board provided inadequate reasons or bases for finding that a VA examination for the Veteran’s left knee disability was not necessary. The Court held that the Board did not identify which of the Veteran’s statements it deemed too “general” and “conclusory” to satisfy McLendon. And the Board did not explain whether his statements constituted credible evidence of continuous symptoms since the in-service injury. On remand, the Board must analyze the credibility of the Veteran’s lay evidence to determine whether it satisfies the McLendon standard. If it does, the Board must then determine whether the Veteran was on active military service when he injured his left knee.
