JAMES A. W ASHINGTON v. R. James Nicholson
19 Vet. App. 362 (2005)
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Rule of Law:
When a veteran's service medical records (SMRs) are lost by the VA, the Board of Veterans' Appeals has a heightened duty to assist the claimant in developing alternative evidence. Furthermore, the Board must evaluate the veteran's competent lay testimony regarding in-service events and symptoms based on its credibility and weight, and cannot reject it merely for lack of independent corroboration.
Facts:
- James A. Washington served in the U.S. Army from September 1966 to April 1986.
- In the summer of 1969, while stationed in Korea, Washington woke with his right foot internally rotated and severe pain in his right hip and thigh.
- Following this incident, Washington was placed on limited duty for approximately two months and received physical therapy.
- Washington continued to receive treatment for hip pain for the remainder of his military service.
- In 1990, most of Washington's service medical records were sent to a VA regional office and were subsequently lost.
- In December 1994, a private radiologist diagnosed Washington with bilateral osteonecrosis of the hips.
- In January 1995, Washington's private physician noted that he had complained of hip pain for 26 years, and subsequently diagnosed him with avascular necrosis of the hip.
Procedural Posture:
- In March 1995, James A. Washington filed a claim with a VA regional office (RO) for service connection for a bilateral hip disability.
- The RO denied the claim in July 1995.
- Washington filed a Notice of Disagreement, and the RO issued a Statement of the Case.
- Washington appealed to the Board of Veterans' Appeals (Board).
- The Board denied the claim in May 2000.
- The U.S. Court of Appeals for Veterans Claims (the Court) granted a joint motion to vacate and remand the Board's decision in November 2000.
- The Board again denied the claim in June 2002.
- The Court, pursuant to another joint motion for remand, remanded the matter to the Board in February 2003.
- On October 2, 2003, the Board issued the decision on appeal, again denying Washington's claim.
- Washington (appellant) appealed the Board's October 2003 decision to the U.S. Court of Appeals for Veterans Claims, with the Secretary of Veterans Affairs as appellee.
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Issue:
Does the Board of Veterans' Appeals err when it denies a claim by rejecting a veteran's lay testimony about an in-service injury as not probative for lack of corroboration and by failing to fulfill its heightened duty to assist when the veteran's service medical records were lost while in VA custody?
Opinions:
Majority - Judge Moorman
Yes. The Board of Veterans' Appeals errs by rejecting a veteran's competent lay testimony for lack of corroboration and by failing to satisfy its heightened duty to assist when the veteran's records are lost. Washington's testimony about his own symptoms and experiences in service is competent lay evidence, not an improper medical diagnosis, and the Board must assess its credibility and weight rather than summarily dismissing it. The Board incorrectly required 'credible independent evidence' to corroborate this testimony. Because the VA lost Washington's records, it had a 'heightened duty' to assist him by seeking alternative evidence, such as morning reports, and by advising him to submit other forms of proof, like 'buddy statements,' which it failed to do. The Board's reliance on the absence of evidence in the few remaining records was improper, and its failure to provide a well-reasoned basis for its decision, especially under its heightened obligation, constitutes legal error.
Dissenting - Judge Kasold
Yes, but the proper remedy is reversal, not remand. While the dissent agrees that the Board's decision was legally infirm, it argues that sending the case back for further proceedings is unnecessary and unjust given the ten-year delay. The Secretary previously agreed in a joint motion that Washington's testimony was 'probative,' which the dissent interprets as an admission of credibility. Combined with medical opinion evidence linking his current condition to his in-service injury and the complete lack of evidence against his claim, the only permissible outcome is to grant the claim. Reversal is warranted because the record, after extensive development, permits only one resolution of the factual issue in the veteran's favor.
Analysis:
This decision significantly strengthens protections for veterans whose records are lost by the VA by defining the scope of the agency's 'heightened duty to assist.' It clarifies that this duty is proactive, requiring the VA to help find alternative evidence rather than simply noting the absence of the original records. The ruling also solidifies the principle that a veteran's own testimony about their experiences is competent evidence that must be weighed on its merits, preventing the Board from using the lack of corroboration—often caused by the VA's own error—as the sole basis for a denial. This precedent serves as a crucial check on the Board's reasoning, demanding a more thorough analysis in cases with missing evidence.
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