McLendon v. Nicholson: Veterans Disability Appeal on Back Injury

William P. McLendon served on active duty in the U.S. Marine Corps from December 1963 to December 1967. In May 2001, he filed a claim for compensation for a chronic low-back condition, stating that he had injured his back in 1964 or 1965 while in Spain. He described falling in a landing craft and landing on a steel lifting ring. Mr. McLendon later submitted medical opinions from two private physicians in 2001, both of which suggested that his current back condition could have been related to the in-service incident.

A VA regional office denied the claim in May 2002 without providing a VA medical examination. The office determined that a 20-year gap existed between Mr. McLendon’s service and the first available medical records and noted no evidence of injury or diagnosis of a back disability in his service medical records. Mr. McLendon appealed the denial to the Board of Veterans’ Appeals.

Board of Veterans’ Appeals Decision

On January 15, 2004, the Board considered private medical records from 1993 onward that documented a low-back disability. It acknowledged Mr. McLendon’s history of back pain dating to his service years but emphasized that his service medical records, including his separation examination, contained no evidence of a back injury. The Board discounted the two private medical opinions as speculative because they relied heavily on Mr. McLendon’s self-reported history. It also concluded that the in-service injury had resolved without chronic effects and denied the claim. The Board held that no VA medical examination was required because the existing evidence was sufficient to decide the case.

Court of Appeals for Veterans Claims Review

Mr. McLendon appealed the Board’s decision to the United States Court of Appeals for Veterans Claims. He argued that the Secretary failed to provide a required VA medical examination under 38 U.S.C. § 5103A and that the Board misapplied the law by dismissing the medical opinions. He also asserted that the Secretary did not provide adequate notice under 38 C.F.R. § 3.159(b).

The Court outlined four elements under which the Secretary must provide a medical examination: (1) competent evidence of a current disability or persistent symptoms, (2) evidence establishing an in-service event or injury, (3) an indication that the disability may be associated with service, and (4) insufficient competent medical evidence to decide the claim.

Court’s Analysis

The Court found that the first two elements were satisfied. The Board itself acknowledged that Mr. McLendon had a current disability and that an in-service back injury occurred. For the third element, the Court determined that the threshold was low and that medical opinions, even if speculative, could indicate that the disability might be associated with service. It held that the Board erred by rejecting this possibility and failing to consider whether the evidence indicated a connection.

Regarding the fourth element, the Court ruled that the record lacked sufficient competent medical evidence to make a final determination on nexus. The speculative nature of the medical opinions did not eliminate the need for a VA examination, as the Board suggested. The Court also noted that the Board improperly concluded that the in-service injury was acute and resolved without residuals, a medical finding that the Board was not qualified to make.

Court’s Ruling

The Court set aside the January 15, 2004, Board decision and remanded the case for further proceedings. It instructed the Board to address whether the third element for requiring a medical examination had been satisfied. If so, the Board was directed to provide Mr. McLendon with a VA medical examination and obtain an opinion regarding the potential nexus between his current disability and the in-service injury.

Assistance with Veterans Disability Matters

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