explaining that the appellant’s attorney was "not qualified to provide an explanation of the significance of the clinical evidence"
How later courts described this case
- explaining that the appellant’s attorney was "not qualified to provide an explanation of the significance of the clinical evidence"
- finding appellant’s attorney not competent to provide an explanation of the importance of clinical evidence
Written by the judges who cited it.
The opinion
KRAMER, Associate Judge,
dissenting:
Appellant had active service from August 1983 to July 1986, and has been certified as having active duty for training from July 7, 1987 to July 19, 1987. R. at 54; Keith L. Kern, BVA 91-41341, at 2 (Dec. 5, 1991). The record on appeal reveals the following relevant information. First, appellant had abnormal white and red blood cell counts on April 16, 1986. R. at 43, 87. Second, appellant was tested for HTLV-III antibody on March 17,1986. R. at 50. The record does not contain the results of that test, and the BVA decision incorrectly states that the “[t]he veteran’s separation examination in March 1986 does not show that HIV testing was undertaken.” Kern, BVA 91-41341, at 3. Third, appellant tested HIV antibody positive on November 14, 1987. R. at 48, 53.
As appellant’s claim is well-grounded within the meaning of 38 U.S.C.A. § 5107 (a) (West 1991); Kern, BVA 91-41341, at 3, the duty to assist was triggered. Because the VA was unable to locate the results of appellant’s in-service HTLV-III test, the BVA had a heightened obligation to assist in this case. See O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); Smith v. Derwinski, 2 Vet.App. 147, 148 (1992). As a consequence, an expert medical opinion should have been obtained to address whether appellant’s HIV infection had its onset in service. See Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990); Moore v. Derwinski, 1 Vet.App. 401, 405-06 (1991); Wilson v. Derwinski, 2 Vet.App. 16, 21 (1991).