# Kern v. Brown

> United States Court of Appeals for Veterans Claims · March 10, 1993 · 4 Vet. App. 350

URL: https://www.frixlaw.com/law-library/cases/6610528

## Case

- **Full name:** Keith L. KERN v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** March 10, 1993
- **Citations:** 4 Vet. App. 350; 1993 U.S. Vet. App. LEXIS 80; 1993 WL 63027
- **Precedential status:** Published
- **Opinion:** Dissent by Kramer
- **Judges:** Holdaway, Kramer, Mankin
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6610528

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6610528. Public record. Not legal advice.