Garlejo v. Derwinski — Board must consider lay evidence, pain, and reasonably raised pension issues

The appellant sought review of a Board decision that denied reopening service connection for residuals of a forearm shrapnel wound and denied an increased evaluation for left knee shrapnel scars. In responding to the Court’s questions, the Secretary failed to justify an incomplete record that omitted pertinent service medical records, and the Court explained that the record on appeal must include the evidence the Board actually considered, especially where the issue is whether new and material evidence was submitted.

The Court also held that the Board erred by failing to address the credibility of the veteran’s lay statements under Cartright v. Derwinski. The appellant’s statements about an in-service wound were evidence that had to be considered and rebutted, particularly in light of X-ray evidence of a foreign body in the forearm. The Court further found error in the Board’s failure to consider the veteran’s reported pain under 38 C.F.R. § 4.40, and in failing to address a reasonably raised pension claim based on unemployability. Relying on Myers v. Derwinski, the Court reiterated that the Board must liberally read the substantive appeal and consider issues reasonably raised by the veteran’s statements. The decision was vacated and remanded.

The Board must include and review evidence actually considered in the record on appeal, evaluate the credibility of competent lay evidence, consider functional pain under 38 C.F.R. § 4.40, and address any reasonably raised unemployability or pension issue identified in the substantive appeal.

Garlejo is a strong reminder that VA must liberally construe a veteran’s appeal, address competent lay evidence, and not ignore pain or unemployability issues merely because they are not framed with legal precision.

The case is useful when the Board overlooks lay testimony, ignores pain in a rating analysis, or fails to consider a pension theory reasonably raised by the record. It also underscores that an appellate record in a reopening case must contain the evidence the Board relied upon, not just a summary.

Board failure to address lay evidence, pain, or reasonably raised pension/unemployability issues

A veteran states on the VA Form 9 that his service-connected knee pain prevents him from working, but the Board only decides the schedular rating and says nothing about pension or unemployability. Garlejo supports remand for consideration of the reasonably raised issue and the veteran’s lay statements.

Use Garlejo to argue that the Board must address competent lay assertions, apply § 4.40 to pain evidence, and read the substantive appeal broadly enough to capture pension or unemployability theories raised by the veteran’s statements.

Cartright v. Derwinski, Littke v. Derwinski, Myers v. Derwinski