Veteranclaims’s Blog

October 10, 2011

Single Judge Application, Absence of Evidence Not Negative Evidence, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)

Filed under: Uncategorized — veteranclaims @ 4:27 pm

Excerpt from decision below:
“Moreover, as a general matter, “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant’s service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must
develop evidence to affirmatively prove that there was no aggravation.”

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U.S. Court of Appeals for Veterans Claims
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. 10-1607
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1607
HARRY E. MARSHALL, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Harry E. Marshall appeals through counsel
from a May
5, 2009, Board of Veterans’ Appeals (Board) decision that denied service
connection for a left
shoulder disability and for a cervical spine disability. For the following
reasons, the Court will
reverse the Board’s May 2009 decision with respect to these disabilities
and remand the matters for
further proceedings with the instruction that a finding of aggravation be
entered.
The appellant essentially argues that deficiencies in the VA medical
examination report on
which the Board heavily relied rendered its statement of reasons or bases
inadequate. Specifically,
he argues that because the examination report was based only on a records
review, the examiner did
not have the benefit of the appellant’s account of the in-service
aggravation of his preexisting
injuries, a summaryof which was included in a record document submitted
after the VA opinion was
rendered. He further argues that the VA examination reports merely agreed
with the conclusions of
an earlier medical examination board (MEB) report and did not supply the
examiner’s own medical
analysis of why his neck and shoulder conditions were not aggravated in
service.
The appellant had approximately 20 years service in the U.S. Army National
Guard before
he was called to active duty in late 2001. Although the record contains
abundant evidence that he

had experienced difficulties with his shoulder and neck prior to
reporting for active duty, in
November 2001 a private physician stated: “He is cleared for active duty
in the military. He should,
however, be aware that if he has a flare up of his shoulder he should back
down on his activity level
as he has been good about doing at work at the present time.” Record (R.)
at 304. Both the Board
and the Secretary agree that a December 2001 medical examination conducted
prior to his reporting
for active duty noted no physical conditions with respect to either the
neck or shoulder.1
On February 14, 2002, however, two days after reporting for active duty at
Ft. Stewart,
Georgia, a service medical record indicates that he was “non-deployable
due to inability to wear
rucksack [and] helmet due to cervical radiculopathy and chronic
impingement of [the] shoulder.”
R. at 332. He was referred to the MEB and released from active duty. The
MEB report placed an
“X” in the “yes” column for “existed prior to entry on active duty” and an ”
X” in the “no” column for
“permanently aggravated by service.” Record (R.) at 710.
In the decision here on appeal, the Board acknowledged that “at the time
of entry, there is
a presumption that the Veteran entered in sound health.” R. at 20. See 38
U.S.C. § 1111. The Board
found, however, that “the probative evidence constitutes clear and
unmistakable evidence that a left
shoulder and cervical spine injuries . . . existed prior to service
entrance.” R. at 21. The Board also
found that “there is clear and unmistakable evidence demonstrating that
the preexisting [shoulder
and neck conditions] were not aggravated byservice.” R. at 22. The Board
therefore concluded that
the presumption of soundness had been rebutted and denied service
connection for the shoulder and
neck conditions.
I. ANALYSIS
Generally, in order to establish service connection for a present
disability, “the veteran must
show: (1) the existence of a present disability; (2) in-service incurrence
or aggravation of a disease
or injury; and (3) a causal relationship between the present disability
and the disease or injury
The Court notes that induction examinations fail to note well-established
preexisting conditions all too
frequently, placing VA in a difficult situation of rebutting the
presumption of soundness equipped with little
contemporaneous evidence. The service departments would do well, at a
minimum, to make sure that the examiners at
least inquire as to previous medical history and make appropriate
notations on the induction examination report.
Moreover, the prior arthroscopy should have left multiple, albeit small,
scars that should have seeded further inquiry.
1
2

incurred or aggravated during service.” Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir.
2004). The presumption of soundness relates to the second
requirement–the showing of in-service
incurrence or aggravation of a disease or injury. See Holton v. Shinseki,
557 F.3d 1362, 1367 (Fed.
Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (
application of presumption
satisfies incurrence or aggravation element). A claimant must show that he
or she suffered from a
disease or injurywhile in service. Holton, 557 F.3d at 1367. Thereafter,
except for conditions noted
at induction, the presumption of soundness ordinarilyoperates to
satisfythe second element without
further proof.
“[E]very veteran shall be taken to have been in sound condition when
examined, accepted,
and enrolled for service, except as to defects, infirmities, or disorders
noted at the time of the
examination, acceptance, and enrollment.” 38 U.S.C. § 1111; see also 38 C.
F.R. § 3.304(b) (2011).
Therefore, when no preexisting medical condition is noted upon entry into
service, a veteran is
presumed to have been sound in every respect. See Wagner v. Principi, 370
F.3d 1089, 1096 (Fed.
Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991).
The burden then falls on VA to rebut the presumption of soundness by clear
and
unmistakable evidence that the veteran’s disability was both preexisting
and not aggravated by
service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. Once the
presumption of soundness
applies, the burden of proof on the second Shedden requirement does not
shift back to the claimant.
In particular, even when there is clear and unmistakable evidence of
preexistence, the claimant need
not produce any evidence of aggravation in order to prevail under the
aggravation prong of the
presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed.
Cir. 1998) (“When the
predicate evidence is established that triggers the presumption, the
further evidentiary gap is filled
by the presumption.”).
If the Secretary fails to produce clear and unmistakable evidence of lack
of aggravation, the
claimant is entitled to a finding of in-service aggravation of the
preexisting condition. The Secretary
mayshow a lack ofaggravation byestablishing,with
clearandunmistakableevidence,thattherewas
no increase in disability during service or that any “increase in
disability [was] due to the natural
progress” of the preexisting condition. See Wagner, 370 F.3d at 1096.
While this language has
some commonality with the presumption of aggravation, see 38 U.S.C. §
1153, the common
3

language does not signal that the analysis shifts to the presumption of
aggravation once preexistence
of the injury or disease has been established. Rather, the analysis
proceeds under the aggravation
prong of the presumption of soundness. The burden is not on the claimant
to show that his disability
increased in severity, but, rather, it is on VA to establish by clear and
unmistakable evidence that it
did not.
Clear and unmistakable evidence means that the evidence “cannot be
misinterpreted and
misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet.App. 254,
258-59 (1999) (citing
definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet.
App. 310, 313-14 (1992)
(en banc)). The clear-and-unmistakable-evidence standard is an “onerous”
one. Laposky v. Brown,
4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet.App. 228, 232 (
1991)). If there is clear
and unmistakable evidence to show that the veteran’s disability was both
preexisting and not
aggravated by service, then the veteran is not entitled to service-
connected benefits. Wagner, 370
F.3d at 1096.
Whether the Secretary has rebutted the presumption of sound condition is a
matter that the
Court reviews de novo. Miller v. West, 11 Vet.App. 345, 347 (1998). The
factual determinations
underlying the Board’s decision, however, are judged under the “clearly
erroneous” standard. See
Bagby, supra.
A. The Preexistence Prong of the Presumption of Soundness
The record amply supports the Board’s determination that the shoulder and
neck conditions
preexisted his active duty service. As the Board noted, the record
includes evidence that the
appellant began experiencing discomfort in his shoulder as early as late
1999. He was diagnosed
with “[p]robable tendonitis of the left shoulder” in February 2000. R. at
292. The Board further
noted that the appellant underwent surgery in January 2001, consisting of ”
a left shoulder
arthroscopy with bursectomy, subacromial decompression, and an open distal
clavicle excision.”
R. at 14, 312. With respect to the cervical spine condition, the Board
noted that an April 10, 2001,
magnetic resonance imaging “revealed bulging discs at C6-7.” R. at 304.
Therefore, the Court discerns no reason to disturb the Board’s finding
that preexistence of
the neck and shoulder conditions had been established by clear and
unmistakable evidence. The
4

appellant’s principal contention, however, is that training leading up to
and after reporting for active
duty aggravated those conditions.
The appellant also submitted a December 2004 statement in which he
attributed the origin
of his neck and shoulder conditions to various accidents that occurred
during periods of training
while he was in the Army National Guard. See R. at 258. The Board stated
that these statements
were not supported by the record, however, “as the objective medical
evaluations showed that the
Veteran did not report any injuries and the spine and left shoulder were
normal on evaluation.” R.
at 17. Therefore, the appellant has not shown that it is at least as
likely as not that his neck and
shoulder conditions occurred during his National Guard service.
B. The Aggravation Prong of the Presumption of Soundness
The Secretary must also prove, by clear and unmistakable evidence, that
the preexisting
shoulder and cervical spine disorders were not aggravated during the
appellant’s active duty service,
brief as it was. Wagner, 370 F.3d at 1096. The Board’s reasoning was asfollows: “There is no record whatsoever of any reinjury, exacerbation, or other incident regarding his left shoulder or cervical spine. There was no increase in the disability level.” R. at 22.
The Board’s approach to the aggravation issue, as revealed in these statements, is both legally and factually flawed. The appellant’s entrance examination made no mention of any difficulties with the shoulder or cervical spine. Furthermore, the private medical report in
November 2001 indicated that the shoulder had improved and cleared the appellant for active duty.
Less than two months later his preexisting conditions made him ineligible for deployment and required
his release from active duty. Finally, the MEB report states as follows: “Currently[the appellant]
has constant left shoulder pain anteriorly aggravated by direct pressure, overhead work and the wear[
ing] of a ruck sack.” R. at 716. These portions of the record constitute affirmative evidence of
aggravation. Regardless, as the Board acknowledged, “[t]he claimant is not required to show that the
disease or injury increased in severity during service before VA’s duty under the second prong of [the presumption of soundness] attaches.” R. at 19. As discussed previously, once the presumption of soundness arises, the appellant has no further duty to provide evidence of aggravation; VA must prove lack of aggravation.
5

Moreover, as a general matter, “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” Buczynski v.Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant’s service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must develop evidence to affirmatively prove that there was no aggravation.
The Secretary and the Board point to three pieces of evidence pertaining to the aggravation question. There was the MEB report containing an “x” indicating no aggravation during service. There was an accompanying report that generally reiterated the medical history of the appellant’s difficulties with his shoulder and neck; this evidence pertains to the preexistence prong of the presumption of soundness. There was no explanation of MEB’s conclusion of non-aggravation, however, or any evidence pertaining to that issue. There were also two VA
examination reports (one each for the shoulder and cervical spine conditions) both dated October 1,
2004. With respect to the shoulder condition, the examiner’s total discussion of the aggravation
issue was as follows: “On review of the records there is no indication/documentation of aggrivation [
sic] durring [sic] active duty service. I agree with the Medical Board determination.” R. at 281.
The cervical spine examination report contains a similarly conclusory and nonexpansive opinion
on aggravation of that condition. See R. at 283.
The Court agrees with the appellant that the examiner’s discussion does not constitute the requisite medical explanation. The Court has made clear that such an unexplained conclusory VA opinion is entitled to no weight in a service connection context. See
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
Neither the VA medical opinions nor the MEB report on which they rely nor the
combination
of these documents constitutes clear and unmistakable evidence on the
facts of this case. The Court
does not agree that an “x” marked for “no aggravation” on a form rises to
the level of clear and
unmistakable evidence of lack of aggravation, especially when the report
itself is internally
contradictory, containing a statement that the wearing of the rucksack did
aggravate the appellant’s
condition. Insofar as the VA medical opinions relyon the MEB report,
theyinvoke the same internal
6

contradictions and add no weight to that report in the absence of any
additional medical analysis.
The only other reasoning in the VA examination reports asserted an absence
of documentation of
aggravation in service. This reasoning does not constitute a medical
analysis; it is merely an
incorrect recitation of facts. Even if the examiner were correct, the
Board may not rely on reasoning
that improperly shifts the burden of proof on the aggravation prong to the
appellant. Therefore, the
Court concludes that the Secretaryhas not carried his burden of proving
lack of aggravation byclear
and unmistakable evidence.
Additionally,theSecretarypoints out thatuponreleasefromactiveduty,
theappellantagreed
“with the [MEB’s] findings and recommendation.” R. at 712. The Court notes
that the only
alternative presented on the form in question was to appeal the MEB’s
findings and recommendation
for discharge. Furthermore, the aggravation of the appellant’s preexisting
conditions is ultimately
a medical issue, which he is not competent to assess. See Espiritu v.
Derwinski, 2 Vet.App. 492,
494-95 (1992) (stating that a layperson can provide an account of symptoms
but no a diagnosis that
requires medical knowledge). While the appellant’s perception at
separation whether the condition
had been aggravated might constitute some evidence on the symptoms, the
statement on the form
does not constitute a binding admission on the medical conclusion.
The Board asserted that “[t]here was no increase in the disability level.”
R. at 22. There is
no medical evidence in the record, however, to support this assessment.
The onlyevidence of record
certainly indicates that the conditions worsened during active duty. See R.
at 304, 332, 710-16.
Whether this worsening constituted an increase in the disability level, as
compared to what it was
upon reporting for duty is a question that might have been illuminated by
further medical evidence.
On this record, however, the Court is unable to conclude that VA proved
that there was no increase
in disability.
In sum, the evidence of lack of aggravation does not rise to the level of
clear and
unmistakable evidence. Therefore, VA has not rebutted both prongs of the
presumption of
soundness. The Court concludes that it must reverse the Board’s finding as
to aggravation of the
preexisting shoulder and cervical spine conditions and direct that a
finding of in-service aggravation
be entered for these conditions.
7

It does not necessarily follow, however, that the unrebutted presumption
of soundness will
lead to service connection for the shoulder and cervical spine conditions.
The appellant must still
demonstrate a current disability and a nexus between his current
disability and the in-service
aggravation. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289,
1292-93 (Fed. Cir.
2007) (affirming this Court’s finding that the presumption of soundness
does not eliminate the need
to demonstrate a causal connection between a veteran’s current condition
and his in-service injury).
The Court will therefore remand these matters for further factfinding on
the current disability and
nexus issues.
On remand, the appellant will be free to submit additional evidence and
argument as to a
current disability and nexus with regard to his shoulder and cervical
spine conditions and the Board
is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App. 529, 534
(2002). A final Board decision following the remand herein ordered will
constitute a new decision
that, if adverse, may be appealed to this Court upon the filing of a new
Notice of Appeal with the
Court not later than 120 days after the date on which notice of the
Board’s new final decision is
mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998).

II. CONCLUSION
Based on consideration of the foregoing, the Court REVERSES the Board’s
May 5, 2009,
determination that the shoulder and cervical spine conditions were not
aggravated in service and
directs that a finding of aggravation be entered. The Court REMANDS these
matters for further
factfinding on the issues of a current disability and nexus to the in-
service aggravation.
DATED: September 30, 2011
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
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