## Facts

- Rick Kahana served on active duty in the U.S. Army (1976–1979) and was service-connected for a left-knee disability.
- He sought service connection for a right-knee disability, asserting (1) an in-service right-knee ACL injury during a 1978 Tae Kwon Do match, or (2) secondary causation/aggravation from compensating for the left-knee disability.
- Service medical records documented left-knee problems but did not document a right-knee injury.
- A December 2008 VA examiner initially related the right-knee condition to an in-service injury; VA then requested clarification and stated as fact that there was “no right knee injury in service,” after which the examiner changed her opinion to find no in-service injury.
- A March 2009 VA examiner opined the right-knee disability was not related to service, relying largely on the absence of in-service documentation.
- The record included post-service right-knee pathology and injury, including right-knee ACL reconstruction (1993) and a significant work-related injury affecting both knees (1995).
- The VA regional office denied the claim; after further development, the Board of Veterans’ Appeals denied service connection, finding the veteran’s account not credible because such an ACL injury would have been documented in service records.
- The veteran appealed to the U.S. Court of Appeals for Veterans Claims.

## Issues

1. Whether VA failed to develop evidence in an impartial, unbiased, and neutral manner by instructing a medical examiner that there was “no right knee injury in service,” thereby assuming a disputed fact.
2. Whether the Board improperly relied on its own medical judgment by concluding, without supporting medical evidence, that an in-service ACL tear would necessarily have been documented in service medical records.

## Decision

- The Court held VA violated its duty to procure evidence in an impartial, unbiased, and neutral manner by embedding a disputed factual premise (“no right knee injury in service”) in a medical-opinion clarification request.
- The Court held the Board violated the prohibition on independent medical judgment by concluding an ACL tear would necessarily have been recorded in service medical records without independent medical support.
- The Court vacated the Board’s denial and remanded for readjudication consistent with these holdings.

## Legal Principles

- VA must obtain and develop evidence in an impartial, unbiased, and neutral manner; it may not frame medical-opinion requests to assume contested facts against the claimant.
- The Board may consider only independent medical evidence on medical questions and may not supply its own medical conclusions to reject a claim.
- When the Board treats silence in service records as negative evidence against lay testimony, it must explain why the event would ordinarily have been recorded; if that conclusion depends on medical assumptions, it requires competent medical evidence.

## Conclusion

The Court vacated and remanded because VA’s medical-opinion development was not neutral and because the Board rejected lay evidence by making an unsupported medical inference from the absence of documentation in service records.


Kahana v. Shinseki, 24 Vet. App. 428 (2011)