NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GEORGE E. JOHNSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7060
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in
case no. 08-2809, Judge Alan G. Lance, Sr.
___________________________
Decided: June 10, 2010
___________________________
GEORGE E. JOHNSON, of Little Rock, Arkansas, pro se.
ANUJ VOHRA, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
JOHNSON v. DVA 2
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief was DAVID J. BARRANS, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, BRYSON, and DYK, Circuit
Judges.
PER CURIAM.
George E. Johnson (“Johnson”) appeals the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a decision of the Board of
Veterans’ Appeals (“Board”). The Board denied Johnson’s
claim for service connection. We affirm-in-part, vacate-in-
part, and remand.
BACKGROUND
While Johnson raised several claims before the De-
partment of Veterans Affairs (“VA”), he raises only a
single claim on appeal. We limit the description of the
background facts to this one claim.
Johnson underwent surgery on his left knee when he
was twelve years old. Residual effects from that surgery
persisted throughout his adulthood and were noted upon
his entry into service with the United States Army.
Johnson served on active duty in the Army from Septem-
ber 1982 to February 1983, and then in the Army Na-
tional Guard Reserves for more than nine years. On
December 27, 1990, Johnson was involved in a motor
vehicle accident during a period when he was not per-
forming duties for the Army National Guard Reserves.
He injured his neck, back, left knee, and left ankle.
3 JOHNSON v. DVA
Johnson received workers’ compensation benefits for his
injuries from that accident.
Two days after Johnson was involved in the motor ve-
hicle accident, Johnson performed a single day of inactive
duty for training (“INACDUTRA”) on December 29, 1990.
Johnson asserts that his one day of INACDUTRA aggra-
vated the injuries he sustained in the December 27, 1990,
car accident. In January of 2001, Johnson filed a claim
for disability compensation with the VA based on this
alleged aggravation of his injuries from the motor vehicle
accident by his one day of INACDUTRA, as well as sev-
eral other unrelated injuries and conditions. The VA
denied his claim.
Following a remand by the Veterans Court, the Board
issued a decision on August 21, 2008. It ruled that John-
son was not entitled to service connection for his claimed
disabilities, and that a medical examination would not be
ordered pursuant to 38 C.F.R. § 3.159(c)(4). That provi-
sion provides:
A medical examination or medical opinion is nec-
essary if the information and evidence of record
does not contain sufficient competent medical evi-
dence to decide the claim, but:
(A) Contains competent lay or medical
evidence of a current diagnosed disability
or persistent or recurrent symptoms of
disability;
(B) Establishes that the veteran suffered
an event, injury or disease in service, or
JOHNSON v. DVA 4
has a disease or symptoms of a disease
listed in § 3.309, § 3.313, § 3.316, and §
3.317 manifesting during an applicable
presumptive period provided the claimant
has the required service or triggering
event to qualify for that presumption; and
(C) Indicates that the claimed disability or
symptoms may be associated with the es-
tablished event, injury, or disease in ser-
vice or with another service-connected
disability.
38 C.F.R. § 3.159(c)(4)(i).
The Board based its decision upon a review of the
medical evidence in the record, including a July 1982
orthopedic consultation report, medical examination
reports from March of 1986 and April of 1980, a December
1990 report from Johnson’s primary care physician, a
January 1992 letter from his primary care physician, a
January 1991 report pursuant to the Troop Medical clinic
evaluation, an April 1991 letter from Johnson’s orthopedic
surgeon, and a number of other medical records. The
Board further considered the testimony of Johnson’s wife
and noted that she was competent to provide a relevant
medical opinion due to the fact that she was a registered
nurse. However, the Board refused to consider Johnson’s
own testimony regarding the continuity of his injuries,
and his belief that they were aggravated by his one day of
INACDUTRA. The Board stated that Johnson “is not a
medical professional, and therefore his beliefs and state-
ments about medical matters do not constitute competent
evidence on matters of medical etiology or diagnosis and
5 JOHNSON v. DVA
absent a professional medical opinion linking a current
disorder to service, service connection cannot be granted.”
App. 33. The Board concluded that the competent medi-
cal evidence did not establish that any of Johnson’s disor-
ders or injuries were aggravated by his one day of
INACDUTRA.
Johnson appealed the Board decision to the Veterans
Court. The Veterans Court affirmed the decision of the
Board on November 13, 2009. Johnson v. Shinseki, No.
08-2809, 2009 WL 3784953 (Vet. App. Nov. 13, 2009). The
Veterans Court held that the Board had not erred in
finding that the evidence in the record did not support
Johnson’s claims that his one day of INACDUTRA aggra-
vated either his pre-existing knee condition or the injuries
he suffered in his December 1990 car accident. The
Veterans Court also rejected Johnson’s contention that
the Board ignored his wife’s testimony. The Veterans
Court noted that the Board did consider her testimony
but simply found the other medical evidence in the record
to be more probative. The Veterans Court did not address
whether the Board erred in refusing to consider Johnson’s
own lay testimony. 1 The Veterans Court also ruled that
the Board did not err in refusing to order a further medi-
cal examination.
Johnson timely appealed to this court.
1 Before the Veterans Court, Johnson specifically
referenced his brief in his prior appeal to the Veterans
Court. That brief raised the issue of the Board’s failure to
consider Johnson’s lay testimony.
JOHNSON v. DVA 6
DISCUSSION
This court’s jurisdiction to review decisions by the
Veterans Court is limited. We “have exclusive jurisdic-
tion to review and decide any challenge to the validity of
any statute or regulation or any interpretation thereof [by
the Veterans Court] . . . and to interpret constitutional
and statutory provisions, to the extent presented and
necessary to a decision.” 38 U.S.C. § 7292(c). We lack the
jurisdiction to review “(A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
Johnson argues that the Veterans Court erred as a
matter of law when it failed to consider his lay evidence in
deciding the issue of service connection and the question
of whether he was entitled to a medical examination.
Specifically, Johnson contends that “the Board erred as a
matter of law by finding [his] statements concerning the
continuity of [his] symptoms had to be ‘backed up’ by
medical evidence.” Claimant-Appellant’s Br., attachment
item no. 4. Johnson also asserts that the Veterans Court
erred by affirming the Board’s determination that John-
son’s wife did not qualify as a “medical expert” and by
finding that the opinion of Johnson’s wife was insufficient
to establish his claim. Claimant-Appellant’s Br., attach-
ment items nos. 2-5; Reply Br. of Claimant-Appellant 2-3.
The government responds that Johnson’s appeal concerns
purely factual issues beyond our jurisdiction. The gov-
ernment further asserts that, jurisdictional considera-
tions aside, “there was an abundance of medical evidence
upon which the Board relied in reaching its decision on
Mr. Johnson’s claim, including the testimony offered by
Mr. Johnson’s wife, which the Board recognized consti-
tuted competent medical evidence.” Respondent-
Appellee’s Br. at 9.
7 JOHNSON v. DVA
We conclude we have jurisdiction over Johnson’s ap-
peal with respect to the legal issues he raises. Johnson
contends that the Veterans Court, in denying service
connection and in denying Johnson a medical examina-
tion, misinterpreted and misapplied the governing statu-
tory provisions. This is the type of legal issue we have
jurisdiction to review. See Waters v. Shinseki, 601 F.3d
1274, 1276 (Fed. Cir. 2010).
As an initial matter, we hold that the Veterans Court
did not err in affirming the Board’s determination regard-
ing the opinion of Johnson’s wife. The Veterans Court
properly concluded that the Board did in fact consider the
opinion of Johnson’s wife regarding Johnson’s conditions
but “merely found her opinion to be less probative than
the other medical evidence of record, a determination that
is well within the Board’s purview.” Johnson, 2009 WL
3784953, slip op. at *3.
We reach a different result with regard to Johnson’s
testimony about his injuries that were allegedly aggra-
vated by his one day of INACDUTRA. The Veterans
Court did not explain why the Board’s treatment of John-
son’s testimony was appropriate. The language in the
Board’s opinion suggests it did not regard Johnson’s
testimony as competent. Indeed, the Board stated that
Johnson “is not a medical professional, and therefore his
beliefs and statements about medical matters do not
constitute competent evidence on matters of medical
etiology or diagnosis and absent a professional medical
opinion linking a current disorder to service, service
connection cannot be granted.” App. 33. The Veterans
Court appears to have recognized that the correct stan-
dard for the consideration of lay evidence under Jandreau
v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), is
that “[l]ay evidence can be competent and sufficient to
JOHNSON v. DVA 8
establish a diagnosis when (1) a layperson is competent to
identify the medical condition, (2) the layperson is report-
ing a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a
later diagnosis by a medical professional.” See Johnson,
2009 WL 3784953, slip op. at *2 (quoting the first prong of
the Jandreau framework). We recently held in Colanto-
nio v. Shinseki, No. 2009-7067, 2010 WL 2163002 (Fed.
Cir. June 1, 2010), and in Waters, 601 F.3d at 1278, that
the Board errs when it suggests that lay evidence can
never be sufficient to satisfy the requirement of 38 U.S.C.
§ 5103A(d)(2)(B) that there be a nexus between military
service and a claimed condition. Here, the Veterans
Court did not address the question of whether the Board
in this case departed from the correct standard with
regard to Johnson’s lay testimony both in connection with
the ultimate question of service connection and the ques-
tion of whether a further medical examination should be
ordered.
We therefore affirm-in-part, vacate-in-part, and re-
mand for the Veterans Court to address whether the
Board erred by disregarding Johnson’s lay testimony.
AFFIRMED-IN-PART, VACATED-IN-PART, and
REMANDED
COSTS
No costs.