;

VA Claims: Disabled Veterans Community|Hadit.com

Single Judge Application; The Court concludes that the Board provided inadequate reasons or bases for finding that Mr. Kirven’s lay statements were unreliable. Specifically, the Court concludes that the Board failed to adequately explain how it determined that evidence of a shoulder injury would have been expected to be documented in service and, accordingly, why it considered the absence of such documentation to be more reliable than Mr. Kirven’s lay testimony. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (holding that the Board “must first establish the proper foundation for drawing inferences against a claimant from an absence of documentation”). Notably, the Board failed to reconcile its determination with Mr. Kirven’s February 2009 hearing testimony wherein he stated that he did not report any complaints related to his shoulders because they “were just sore at the time” and he “figured [he could] get over that.” R. at 1586. Therefore, it is unclear how the Board determined that any shoulder complaints would have been recorded or documented in light of Mr. Kirven’s testimony that he did not report any symptoms; adverse credibility determination was not fair; by rejecting three medical opinions for failure to address his testimony, did not question his credibility. See Smith v. Wilkie, 32 Vet.App. 332, 339 (2020);

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-1316
OTIS KIRVEN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Otis Kirven appeals through counsel a January 16, 2020,
Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for right
and left shoulder injuries. Record (R.) at 5-13.1 For the reasons that follow, the Court will set aside
the January 2020 Board decision and remand the matters for readjudication consistent with this
decision.
I. FACTS
Mr. Kirven served honorably in the U.S. Army from May 1967 to May 1969, including
service in the Republic of Vietnam. R. at 2125. On March 1, 1969, Mr. Kirven was the unrestrained
driver involved in a motor vehicle accident (MVA), which resulted in a period of hospitalization.
1 In this same decision, the Board granted service connection for a right ankle injury. R. at 11-12. Because
this determination is favorable to Mr. Kirven, the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App.
165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board
pursuant to its statutory authority.”), aff’d in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625
(Fed. Cir. 2009). In addition, the Board remanded the issue of entitlement to a total disability evaluation based on
individual unemployability prior to September 26, 2016. R. at 12-13. Because a remand is not a final decision

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