Veteranclaims’s Blog

December 2, 2011

Single Judge Application, Presumption of Soundness Satisfies Second Shedden Requirement, Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Maxson v. West, 12 Vet.App. 453, 460 (1999)

Filed under: Uncategorized — veteranclaims @ 3:04 pm

Excerpt from decision below:
A claim for service connection must generally be supported by evidence
demonstrating “(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 incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is unclear from the examiner’s report, and from the Board’s reiteration,
which element was regarded as unproven.

==============================
“The presumption of soundness relates to the second Shedden 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 injury while in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof.
The Board made no finding whether the transient blindness is in any way
related to the
5

congenital conditions noted on the 2004 entrance examination. As the Board
acknowledged, the fact that one or more difficulties with vision were noted on the entrance examination does not mean that every vision problem that may have developed in service is attributable to a preexisting condition. See R. at 8 (“The [VA] examiner indicated that [the transient blindness] may not be congenital in nature, and may even be a symptom associated with explosions experienced by the Veteran during active service.” R. at 8-9. Thus, the Court has no basis on which to conclude that the transient blindness was a preexisting condition noted on the entrance examination or that the in-service
manifestation of transient blindness was not to be regarded as an in-service disease or injury.”
===============================================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3209
THOMAS L. OTTO, II, 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 Thomas L. Otto, II, appeals through
counsel from a June
15, 2010, Board of Veterans’ Appeals (Board) decision that denied (1)
service connection for a right
eye disorder (2) a disability rating in excess of 30% for post-traumatic
stress disorder (PTSD) prior
to August 30, 2007, and in excess of 50% thereafter, and (3) a disability
rating in excess of 30% for
a skin disorder. The appellant expressly declined to challenge the Board’s
assignment of a 50%
disability rating for PTSD after August 30, 2007, but appeals the decision
in all other respects. For
the following reasons, the Court will affirm in part and set aside in part
the Board’s June 2010
decision, and remand three matters for further proceedings consistent with
this decision.
The appellant had active duty from March 2003 to December 2003, from
October 2004 to
January 2006, and from February 2009 to April 2010. Among the decorations
he received for this
service are the Purple Heart and the Combat Action Badge. The parties are
agreed that a physical
conducted in connection with his 2004 deployment to the Persian Gulf noted
that he had “scleral

cornea[1] and microphtalmos,”2
both of which areregarded as congenital defects. Record (R.)at 768.
The appellant has stated that he was in close proximity to three IED [
improvised explosive device] explosions on two separate occasions during service. See R. at 780.
Neither the Board nor the Secretary raises any challenge to these statements.
In June 2006 he submitted an application seeking service connection
benefits for a right eye
disorder and a skin condition. Later that same year he applied for service
connection benefits for
PTSD. A November 27, 2006, rating decision granted service connection for
PTSD, initially rated
as 30% disabling. A May15, 2008, ratingdecision granted serviceconnection
for”recurrentnodular
MRSA[3]
folliculitis,” initially rated as 30% disabling. R. at 138.
I. ANALYSIS
A. PTSD Rating
In the decision here on appeal, the Board acknowledged that “VA treatment
records dated
after [a] November 2006 [VA] examination indicated that the Veteran’s PTSD
symptoms had
intensified.” R. at 12. The Board nevertheless chose August 30, 2007, the
date on which the
appellant was admitted to a VA hospital, as the effective date for the
increased disability rating of
50%.
The appellant argues that his PTSD symptoms did not suddenly worsen on
admission to the
VA hospital and that the Board’s statement of reasons or bases for
selecting the hospital admission
date as the effective date was inadequate. The Secretary concedes that
this portion of the Board
decision “should be remanded for the Board to adequately address when
Appellant’s PTSD
symptomatology increased.” Secretary’s Brief at 4.
After reviewing the evidence of record, the Court agrees with the
concession. See Allday v.
Brown, 7 Vet.App. 517, 527 (1995) (Board must provide a statement of
reasons or bases for its
In an examination report dated July 3, 2006, a VA examiner explained that ”
the [appellant] was born blind
(scleral cornea) during the first 16 months of life[,] which resolved
spontaneously.” R. at 768.
2
“Microphtalmos” is”a developmental defect causing moderate or severe
reduction insize of the eye. Opacities
of the cornea and lens, scarring of the retina and chroroid, and other
abnormalities may also be present.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 1161 (32d ed. 2012) [hereinafter DORLAND’S].
3
1
“MRSA” is an acronym for “methicillin-resistant Staphlyococcus areus.”
DORLAND’S at 1184.
2

decision to enablean appellant to understand the precise basis for its
decision and to facilitate review
in this Court). Accordingly, the Court will set aside the Board’s
determination that the criteria for
a 50% disability rating were met only after August 30, 2007, for a more
rigorous examination and
discussion of the record evidence in the period after November 2006. See
38 U.S.C. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2) (2011) (effective date of an award of increased
compensation may be up to
one year prior to receipt of an application for increased benefits).
B. Right Eye Condition
In his opening brief, the appellant argued that the Board’s statement of
reasons or bases for
denying the right eye condition, which is difficulty in adjusting to
darkness when coming indoors
from bright light, was inadequate. He further argued that the Board
ignored evidence that this
condition is a symptom of traumatic brain Previous DocumentinjuryNext Hit (TBI), which should have
led the Board to develop
a claim for TBI.
The Secretary responded that in so arguing the appellant expressly
abandoned his claim for
an eye disorder. He further pointed out that the appellant filed a claim
for benefits for TBI after the
Board issued its decision here on appeal, which claim has been denied but
not yet appealed. He
asserts that the Court thereforedoes not have jurisdiction to address
anyarguments raisedin this case
pertaining to the right eye condition.
The claim presented to the Board in this case, however, was for “Right Eye
Transient
Blindness.” R. at 808. Whether evidence of record indicating that this
phenomenon is a symptom
of TBI should have led the Board to develop a claim for TBI is an
interesting but now irrelevant
question. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Regardless of
whether the appellant ever
obtains service connection for TBI, however, he is entitled to
adjudication of his claim for the
condition manifested by the symptom of “right eye transient blindness,”
including the potential
effective date of that claim.
The Board relied on the July 2006 VA medical examination report with
respect to service
connection of the transient blindness. After noting the appellant’s
involvement with two IED
incidents, the examiner, stated:
After careful review of the patient’s claim file and the medical
literature, it is my
opinion that there is not sufficient information to answer if this [
problem with
adaption to dark is] related to the patient’s service in the Middle East.
It is possible
3

that the patient has side effects siderosis (retained metals) although
there is not
evidence of any retained metal on examination today.
R. at 769-70. After obtaining a computerized tomography (CT) scan, however,
the examiner wrote
an addendum in which he further opined: “The patient does not have any
evidence of intraocular or
periocular foreign bodies. Therefore, it is my opinion that the patient
has no evidence of siderosis
and it is less likely than not that the veteran’s visual problem is
related to his military service.” R. at
770. The Board merely reiterated this report and concluded that the
evidence preponderated against
service connection because “no medical evidence of record . . . counters
the [July] VA examiner’s
assertions.” R. at 9.
A claim for service connection must generally be supported by evidence
demonstrating “(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 incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is unclear from the examiner’s report, and from the Board’s reiteration,
which element was regarded as unproven.

The Court may infer that the examiner regarded the retention of metal as
the most likely in-
service eye injury to account for the appellant’s transient blindness.
Having performed a test to
eliminate that possibility, he leaped to the conclusion that there was no
link to military service.
There is no indication that the examiner considered injury to the portions
of the brain that process
visual information or any other possible injury or disease that could
cause the condition. Thus, it is
unclear that the examiner obtained sufficient facts to reach his principal
conclusion. Moreover, it
is unclear whether he thought there was no in-service injury or there was
no etiological link to an in-
service injury.
To the extent the examiner believed there was no in-service injury,
however, it is not clear
that such a conclusion would be consistent with the evidence of record. In
this case, there is
evidence that the appellant’s right eye transient blindness manifested in
service. During the
demobilization process in Kuwait, on December 17, 2005, it was noted that
the appellant had
experienced “[right] eye transient blindness,” and the examiner noted that
the “[s]oldier just now
decides to inform his unit that he has been experiencing some blindness
from dark areas to bright
4

areas. He has been a truck driver for the past 12 months in Kuwait and
Iraq.” R. at 886. Without medical evidence it is not clear whether this in-service manifestation of transient blindness was due to or constituted a disease or injury.
Significantly, the examiner’s discussion offered no etiological
explanation for the condition, and did not indicate he was even aware that the condition first manifested in service. This left the Board with no medical basis to evaluate and explain the occurrence of the transient blindness in
service.
To the extent that the Board based its conclusion on a lack of an in-
service injury the Board was required to consider the implications of the presumption of soundness. “Decisions of the Board shall be based on the entire record in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation.” 38 U.S.C. § 7104(a); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
“[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.
The presumption of soundness relates to the second Shedden 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 injury while in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof.
The Board made no finding whether the transient blindness is in any way
related to the
5

congenital conditions noted on the 2004 entrance examination. As the Board
acknowledged, the fact that one or more difficulties with vision were noted on the entrance examination does not mean that every vision problem that may have developed in service is attributable to a preexisting condition. See R. at 8 (“The [VA] examiner indicated that [the transient blindness] may not be congenital in nature, and may even be a symptom associated with explosions experienced by the Veteran during active service.” R. at 8-9. Thus, the Court has no basis on which to conclude that the transient blindness was a preexisting condition noted on the entrance examination or that the in-service
manifestation of transient blindness was not to be regarded as an in-
service disease or injury. The Board must consider these issues on remand.
To the extent that the examiner believed there was no nexus between the
present transient blindness and anything that occurred in service–to include the in-service transient blindness– the examiner’s reasoning is unsupported by medical reasoning. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301, 304 (2008).
Thus, the Board’s statement of reasons or bases, which
amounted to a reiteration of the VA examination report, was inadequate to
evaluate the service connection question under the Shedden factors.
Furthermore, the examination report does not provide a medical basis for
the Board to evaluate the possibility of service connection by continuity of
symptomatology. See 38 C.F.R. § 3.303(b)(2011). Continuity of symptomatology may establish serviceconnection if a claimant can demonstrate that (1) a condition was “noted” during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). “[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage, 10 Vet.App.
at 496.
In this case, the occurrence of transient blindness was noted in service.
There is also
postservice medical evidence of the same symptomatology. The VA examiner
offered no opinion,
much less any reasoned medical explanation, why there is no nexus between
his present disability
and the postservice symptoms of transient blindness. Indeed, the two
phenomena seem to be
identical. Thus, the Board had no medical evidence to assess continuity of
symptomatologyand did
6

not even discuss it.
For the foregoing reasons, the VA examiner’s report was insufficient to
support the Board’s
conclusions as to the right eye condition, rendering its statement of
reasons or bases inadequate. The
Court will therefore set aside its denial of service connection for the
right eye condition and remand
the matter for further development to support an adequate statement of
reasons or bases.
C. Skin Condition
In the decision here on appeal, the Board explained that the appellant’s
skin condition was
rated by analogy to dermatitis or eczema. See 38 C.F.R. § 4.118,
Diagnostic Code (DC) 7899-7806
(2011). To obtain the next highest disability rating under DC 7806, the
Board noted, the evidence
would have to show that more than 40% of the entire body or more than 40%
of exposed areas were
affected. The Board referenced a December 2007 VA examination report
indicating that less than
1% of the appellant’s body was affected by lesions and an August 2008 VA
examination report
indicating that none of the exposed areas of the body were affected. See R.
at 16.
The appellant does not challenge the Board’s evaluation of the schedular
rating and the
Court’s review of the record suggests no error. Therefore, the Court will
affirm the Board’s
assignment of a 30% disability rating under DC 7806.
TheCourt is dissatisfied,however,with
theBoard’sdiscussionofanextraschedulardisability
rating for the condition. The purpose of extraschedular evaluation under §
3.321(b) is “[t]o accord
justice . . . to the exceptional case where the schedular evaluations are
found to be inadequate.” 38
C.F.R. § 3.321(b)(1) (2011). “The governing norm in these exceptional
cases is: A finding that the
case presents such an exceptional or unusual disability picture with such
related factors as marked
interference with employment or frequent periods of hospitalization as to
render impractical the
application of the regular schedular standards.” Id.
Although the Board does not have authority to assign an extraschedular
rating, it must
determine whether to refer a case for extraschedular evaluation whenever
the issue is raised, either
explicitly by the claimant or by the evidence of record. See Thun v. Peake,
22 Vet.App. 111, 115
(2008).
The Board’s entire discussion of the matter was as follows: “Finally, the
Board finds an
extraschedular rating unwarranted here. Application of the regular
schedular standards is found
7

practicable in this matter. Hence the Board is not required to remand
this matter to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of
an extra-schedular
evaluation.” R. at 16 (citations omitted).
TheCourt agrees with the appellantthattheforegoingdiscussion is
inadequateasastatement
of reasons or bases. The first question in consideration of referral for
extraschedular rating is
whether the schedular rating adequately contemplates the veteran’s
disability picture. See Thun,
22 Vet.App. at 115. “Therefore, initially, there must be a comparison
between the level of severity
and symptomatology of the claimant’s service-connected disability [and]
the established criteria
found in the rating schedule for that disability.” Id.
The evidence of record indicates that the lesions from the appellant’s
MRSA folliculitis can
reach softball size and appear on his thighs, buttocks, and groin. The
appellant indicates that “these
issues interfere with his abilityto work as a meter reader/custodian[,]
which requirehim to walk long
distances.” R. at 248. The evidence further indicates that the appellant ”
has had many episodes of
infected follicles” (R. at 255), including a hospital admission to treat a ”
golf-ball sized abscess” on
the right upper thigh. R. at 256. On another occasion, the appellant was
seen in the emergencyroom
with a “large groin lesion that required incision and drainage.” R. at 178.
A VA examination report
dated March 24, 2008, noted: “In the last year he [has] missed a total of [
one] month [of work]
because of his folliculitis. In addition he has had to leave work [early
on] 30-40 days . . . because
lesions would crop up.” R. at 180.
As discussed above, DC 7806 assigns a schedular rating according to the
percentage of body
area covered by the skin condition, which suggests a cosmetic evaluation
that would interefere with
work only when the coverage becomes widespread. The Board does not explain
how these rating
factors reflect the type of localized lesions that interfere with basic
walking and riding activities.
Thesemanifestationsconstituteinterferencewith employment; whetherit
risesto thelevelofmarked
interference would be for the regional office to evaluate in the first
instance.
For the foregoing reasons, the Court concludes that the issue of
extraschedular rating under
38 C.F.R. § 3.321(b) requires further scrutiny and discussion. The Court
will therefore set aside the
Board’s finding with respect to extraschedular rating and remand for
expanded treatment of that
issue.
8

II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the Board’s June 15,
2010, decision
with respect to its assignment of a 50% disability rating for PTSD after
August 30, 2007, and its
assignment of a schedular disability rating of 30% for the appellant’s
service-connected MRSA
folliculits; SETS ASIDE the Board’s denial of service connection for a
right eye condition, its
assignment of August 30, 2007, as the effective date of an increase in
disability for the appellant’s
PTSD, andits findingthattheappellant’s casedid not
warrantreferralforanextraschedulardisability
rating; and REMANDS these matters for readjudication.
On remand, the appellant will be free to submit additional evidence and
argument as to his
claims 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).
DATED: November 30, 2011
Copies to:
James G. Fausone, Esq.
VA General Counsel (027)
9

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