McLendon v. Nicholson
20 Vet. App. 79 (2006)
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Rule of Law:
Under 38 U.S.C. § 5103A, the Secretary of Veterans Affairs has a duty to provide a veteran with a medical examination when the record contains competent evidence of a current disability, evidence of an in-service injury, an indication that the disability may be associated with that injury, and there is insufficient competent medical evidence to render a decision on the claim.
Facts:
- William P. McLendon served in the U.S. Marine Corps from December 1963 to December 1967.
- While serving in Spain in 1964 or 1965, McLendon fell in a landing craft and landed on his back on a steel lifting ring.
- McLendon did not seek medical treatment for the back injury during his service, and his service-separation examination did not note any back problems.
- Private medical records beginning in 1993 documented treatment for a low-back disability.
- In 2001, two private physicians, Drs. Maniscalco and Bearison, submitted statements noting that McLendon's current low-back disability could have been initiated by the fall he sustained during his military service.
Procedural Posture:
- In May 2001, William P. McLendon filed a claim for disability compensation with a VA regional office (RO).
- In May 2002, the RO, a court of first instance within the VA, denied his claim without providing a VA medical examination.
- Mr. McLendon appealed the RO's decision to the Board of Veterans' Appeals (Board), an intermediate appellate body.
- The Board denied Mr. McLendon's claim, concluding that a VA medical examination was not necessary.
- Mr. McLendon, as appellant, appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims, the highest court for veteran appeals.
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Issue:
Does the Secretary of Veterans Affairs have a duty to provide a veteran with a medical examination when the record contains evidence of a current disability and an in-service injury, and private medical opinions indicate a possible association, but there is no definitive medical evidence establishing a nexus between the two?
Opinions:
Majority - Kasold, Judge
Yes. The Secretary has a duty to provide a medical examination under these circumstances because all four elements of the statutory test in 38 U.S.C. § 5103A(d)(2) are met. First, the Board correctly found that Mr. McLendon has a current disability. Second, the Board also found that he suffered an in-service injury. Third, the Board erred by failing to assess whether the evidence 'indicates' that the disability 'may be associated' with service—a low threshold that can be met by lay testimony or speculative medical opinions, which the Board wrongly dismissed as insufficient to establish a nexus. Fourth, the Board erred in concluding there was sufficient competent medical evidence to decide the claim; the absence of evidence in service medical records is not dispositive negative evidence, and the Board is not competent to make its own medical assessment that the injury resolved without residuals. Because the first two elements were met, the third was likely met, and the fourth was not, an examination was required to fulfill the Secretary's duty to assist.
Analysis:
This decision clarifies the scope of the Secretary's duty to assist veterans under the Veterans Claims Assistance Act (VCAA). It establishes that the threshold for triggering a VA medical examination is low, particularly regarding the 'indication' that a disability 'may be associated' with service. The ruling prevents the VA from denying claims based on an absence of dispositive medical evidence without first fulfilling its duty to help develop that evidence. It also strongly reinforces the principle that the Board of Veterans' Appeals cannot substitute its own medical judgment for that of a qualified medical professional.
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