McLendon v. Nicholson

20 Vet. App. 79 (2006), as amended August 7, 2006. Court of Appeals for Veterans Claims, No. 04-0185, Judge Kasold. Precedential. Board decision set aside and remanded.

What it holds

In a disability compensation claim, VA must provide a medical examination when all four of these are present:

1. Competent evidence of a current disability, or of persistent or recurrent symptoms of one;
2. evidence establishing that an event, injury or disease occurred in service — or a disease manifesting during a presumptive period the claimant qualifies for;
3. an indication that the disability or symptoms may be associated with service, or with another service-connected disability; but
4. insufficient competent medical evidence already on file for VA to decide the claim.

The statutory source is 38 U.S.C. §5103A(d)(2); the regulation is 38 C.F.R. §3.159(c)(4)(i).

The part that matters most

Element two requires evidence that establishes something. Element three requires far less. The court was explicit: it "requires only that the evidence 'indicates' that there 'may' be a nexus between the two. This is a low threshold."

The court then said what can clear it. Not a nexus opinion — something weaker than that:

• medical evidence that suggests a connection but is "too equivocal or lacking in specificity to support a decision on the merits," or
• "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation."

Its own illustrations: a veteran with knee arthritis who served as a paratrooper making multiple jumps; and exposure to rifle-range, artillery and heavy-equipment noise with credible testimony of ringing in the ears ever since service. Those indicate a possible association. They do not prove one, and under this rule they do not have to.

Why McLendon lost at the Board and won here

The Board found that Mr. McLendon had a current back disability and found that he suffered an in-service back injury. Elements one and two were satisfied by the Board's own findings. The Board then decided no examination was necessary — without ever addressing element three. The court held that conclusion arbitrary and capricious and sent it back, adding that if the Board found element three met on remand it had to order the examination, because there would then be insufficient medical evidence to decide.

The court also said plainly whose job this is: "it is the Secretary who has the affirmative, statutory duty to assist the veteran in making his case," and "the Board is not competent to provide that opinion" itself.

What it does not hold

It does not entitle every claimant to an examination. The court said so in a footnote: the Board may conclude at the outset that there is already sufficient medical evidence — element four — and decide without one. Nor does it say a nexus is established; it says the question has to be developed before it is answered.

Finding the opinion

The court's official PDF: McLendon_04-0185.pdf. Published at 20 Vet. App. 79.

Reviewed October 6, 2026