Rick K. Kahana v. Eric K. Shinseki
24 Vet. App. 428 (2011)
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Rule of Law:
The Board of Veterans’ Appeals may not use its own medical judgment regarding the severity of an injury to find a veteran’s lay testimony not credible and must rely on independent medical evidence for such determinations. Furthermore, the agency has a duty to procure medical opinions in an impartial, unbiased, and neutral manner, without suggesting a predetermined outcome to the examiner.
Facts:
- Rick K. Kahana served in the U.S. Army from September 1976 to September 1979.
- During his service, Kahana sustained extensive, documented injuries to his left knee.
- Kahana stated that in a 1978 kickboxing competition in Korea, he was kicked in his right knee, causing it to 'snap,' which he believed was an anterior cruciate ligament (ACL) injury.
- Kahana's service medical records (SMRs) did not contain a definitive record of a right knee injury, though one 1978 entry noted swelling of the right patella.
- In April 1993, a private orthopedist performed arthroscopic surgery and an ACL reconstruction on Kahana's right knee.
- In 1995, Kahana injured his back and both knees while working as a stuntman, leading to another bilateral ACL reconstruction.
- Kahana attributed his right knee disability to the initial in-service injury and the subsequent need to favor his service-connected left leg.
Procedural Posture:
- Rick K. Kahana filed a claim with the Department of Veterans Affairs (VA) for service connection for a right knee disability.
- The Board of Veterans’ Appeals (Board) held a hearing for Kahana in September 2007.
- In November 2007, the Board remanded the claim for a VA medical examination.
- A VA examiner issued a report in December 2008 concluding that Kahana's right knee injury was related to his military service.
- The VA requested an addendum from the same examiner, including in its request the statement, '[n]o right knee injury in service.'
- In a March 2009 report, the examiner reversed her prior conclusion, stating the right knee injury was not related to service.
- On August 10, 2009, the Board of Veterans’ Appeals issued a decision denying Kahana's claim.
- Kahana (appellant) appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims.
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Issue:
Does the Board of Veterans' Appeals err when it makes a medical determination regarding the likely severity and expected documentation of an injury, without relying on independent medical evidence, to find a veteran’s lay testimony not credible?
Opinions:
Majority - Schoelen, J.
Yes. The Board of Veterans’ Appeals errs by impermissibly substituting its own medical judgment for independent medical evidence in violation of the Court's holding in Colvin v. Derwinski. The Board concluded that an ACL tear is a 'significant injury' that would have been documented in service medical records, but it did so without citing any medical evidence to support its determination of the injury's severity, common symptoms, or typical treatment. This constitutes an improper medical finding. The Board also erred by categorically rejecting the appellant's lay testimony as incompetent to provide an opinion on medical nexus, as lay testimony is competent to establish observable symptoms. Finally, the VA violated its duty to procure evidence impartially under Austin v. Brown when it requested a revised medical opinion by unequivocally stating to the examiner, '[n]o right knee injury in service,' thereby tainting the process by suggesting a predetermined outcome.
Concurring - Lance, J.
Yes. The Board's analysis was flawed because it improperly blurred the line between a layperson's competence and their credibility. The Board paradoxically relied on its own incompetent lay medical opinion—that an ACL tear is a 'significant injury'—to discredit the appellant's competent testimony about his observable symptoms and the events that occurred. The Board cannot simultaneously assert that the appellant is incompetent to offer a medical opinion while rendering its own. Furthermore, the VA's request for a second medical opinion violated Austin by making an explicit statement of fact ('no right knee injury in service') that a reasonable physician would interpret as a necessary premise, thus improperly limiting the scope of the expert's inquiry and tainting the result.
Analysis:
This decision reinforces two critical procedural safeguards in veterans' benefits law. First, it strictly enforces the Colvin rule, preventing the Board from using its own unsubstantiated medical assumptions to undermine a veteran's credibility, thereby ensuring that claim denials are based on evidence rather than adjudicator conjecture. Second, it clarifies the application of the Austin rule, demonstrating that the duty to obtain impartial medical opinions can be breached even by a seemingly factual statement that has a coercive effect on the examiner. This holding protects the integrity of the evidence-gathering process and strengthens veterans' ability to receive a fair adjudication based on unbiased expert analysis.
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