Veteranclaims’s Blog

June 25, 2012

Horn v. Shinseki, No. 10-0853 (Argued March 27, 2012 Decided June 21, 2012); Presumption of Soundness

Excerpt from decision below:
The principal issue before the panel is whether a medical examination board (MEB) report containing only an unexplained “X” in a box on a form can constitute clear and unmistakable evidence of lack of aggravation. For the following reasons, the Court holds that such evidence is insufficient to rebut the aggravation prong of the presumption of soundness.

Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts 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.”).
In presumption of soundness cases, the Secretary may show a lack of
aggravation by establishing, with clear and unmistakable evidence, that there was 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. In Wagner, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the term “aggravation” has the same meaning in sections
1111 (presumption of soundness) and 1153 (presumption of aggravation). Id.
Although the same word “aggravation” has a common meaning in both instances, this linguistic overlap does not signal that the presumption of aggravation in Section 1153, with its attendant burden of proof rules, is

triggered in presumption of soundness cases once preexistence of the
injury or disease has been established.6
Rather, the aggravation analysis proceeds under the aggravation prong of
the presumption of soundness. As such, the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative evidence to prove that there was no aggravation. 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.

Dissent
LANCE, Judge, dissenting:
“Although the majority cites no support for their criticism of my observation, it is clearly referring to Colvin v. Derwinski, in which this Court reprimanded the Board for relying on “its own unsubstantiated medical conclusions.” 1 Vet. App. 171, 175 (1991).
However, the Federal Circuit has repeatedly reminded us that Colvin should not be cited as an absolute rule and that the Court must acknowledge that there are some basic principles of medicine that are within the common knowledge of a lay person, which includes both claimants and adjudicators. See Kahana, 24 Vet.App. at 435 (noting that “there is no categorical requirement of ‘”competent medical evidence . . . [when] the determinative issue involves either medical etiology
20

or a medical diagnosis'”” (quoting Davidson v. Shinseki, 581 F.3d 1313,
1316 (Fed. Cir. 2009)(quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)))).

Despite the clarity of instruction from the Federal Circuit, this Court is overdue in providing guidance as to what principles of medicine are within the common knowledge of lay persons.
+++++++++++++++++++++++++++
—————————————————-

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0853
DALE S. HORN, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued March 27, 2012 Decided June 21, 2012 )
Kenneth M. Carpenter of Topeka, Kansas, for the appellant.
Ronen Morris and Carolyn F. Washington, Deputy Assistant General Counsel, with whom Will A. Gunn, General Counsel, R. Randall Campbell, Assistant General Counsel, and Thomas C. Earp, Appellate Attorney, were on the brief, all of Washington, D.C., for the appellee.

Before LANCE, DAVIS and SCHOELEN, Judges.

DAVIS, Judge, filed the opinion of the Court. LANCE, Judge, filed a
dissenting opinion.
DAVIS, Judge: U.S. Army veteran Dale S. Horn appeals through counsel from a November 18, 2009, Board of Veterans’ Appeals (Board) decision that denied service connection for a left hip disorder. The Board acknowledged and the parties agree that the appellant’s induction examination report noted no hip condition and therefore the presumption of soundness applies.
The principal issue before the panel is whether a medical examination
board (MEB) report containing only an unexplained “X” in a box on a form can constitute clear and unmistakable evidence of lack of aggravation. For the following reasons, the Court holds that such evidence is insufficient to rebut the aggravation prong of the presumption of soundness.
Accordingly, the Court will reverse the Board’s November 2009 decision insofar as it pertains to the rebuttal of the

aggravation prong of the presumption of soundness and remand the claim
for a hip condition for
further proceedings consistent with this decision.
I. BACKGROUND
The appellant had one month and three weeks of active duty service, from
October 1, 1970,
to November 24, 1970. His induction examination report included no
indication of any hip
condition or other defect of the lower extremities. The report indicated
that he was fit for induction
and gave the highest rating in each of the PULHES categories1
except his eyesight.
During the first three weeks of basic training, however, he complained of
left hip pain. In
a report dated October 29, 1970, Army physicians diagnosed Legg-Calve-
Perthes disease2
(hereinafter Legg-Perthes disease) and recommended a medical evaluation
board (MEB) “for
consideration of separation from the Service under the provisions of AR
635-200,” which pertains
to “Separation for Convenience of the Government.” Record (R.) at 234. The
MEB report, dated
November 17, 1970, stated that the appellant was medically fit for
retention under then-current
medical fitness standards, but diagnosed Legg-Perthes disease, indicating
with an “X” that the
condition existed prior to service and was not aggravated byactive duty.
See R. at 230. The medical
board also recommended separation under “UPAR 635-200, chapter 5” (R. at
231), and the
appellant’s Form DD-214, Certificate of Release or Discharge from Active
Duty, confirms that
separation was under this provision.
PULHESisaratingsystemwidelyemployedbyarmed
servicesphysiciansinexaminationreportsforinduction
and separation. The “P” stands for “physical capacity or stamina”; the “U”
for “upper extremities”; the “L” for “lower
extremities”; the “H” for “hearing and ear”; the “E” for “eyes”; and the ”
S” for “psychiatric.” See McIntosh v. Brown,
4 Vet.App. 553, 555 (1993). A rating of “1” in any of the six categories,
the highest rating, means that the inductee’s
condition in that category should not result in any limitations in
military assignments. Id. Ratings from “2” to “4”
indicate the existence of physical conditions that will result in
progressively more severe restrictions on the assignments
that the inductee may be given. Id.
“Legg-Calve-Perthes disease” is “osteochondrosis of the capitular
epiphysis of the femur.” DORLAND’S
ILLUSTRATEDMEDICALDICTIONARY 537 (32d ed. 2012). An “epiphysis” is “the
expanded articular end of a long bone.”
Id. at 634. The “capital epiphysis” is “the epiphysis at the head of a
long bone.” Id. “Osteochondrosis” is “a disease
of the growth or ossification centers in children that begins as
degeneration or necrosis and is followed by regeneration
or recalcification.” Id. at 1345.
2
1
2

This case was before the Court previously but was dismissed pursuant to a
joint motion for
remand (JMR). In the JMR, the parties agreed that remand was in order so
that the Board could
properly analyze the case under the presumption of soundness.
II. CONTROLLING LAW
A. The Presumption of Soundness
“[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 . . . .”3
38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b)
(2011) (implementing regulation for section 1111). Therefore, when no
preexisting medical
condition is noted upon entryinto service, a veteran is presumed to have
been sound in everyrespect.
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 an injury or disease manifested in service was
both preexisting and not
aggravated by service. See 38 U.S.C. § 1111 (“or where clear and
unmistakable evidence
demonstrates that the injury or disease existed before acceptance and
enrollment and was not
aggravated by service”); Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at
227. This statutory
provision is referred to as the “presumption of soundness,” the rebuttal
of which requires proof both
as to preexistence (the preexistence prong) and lack of aggravation (the
aggravation prong).
There is a related but distinctly different statutory provision that
pertains to cases in which
a preexisting condition is noted on an entrance examination and the
claimant contends that this
condition was aggravated in service.4
This provision is known as the “presumption of aggravation.”
“Historyofpreserviceexistenceofconditionsrecorded atthetimeof[entrance]
examinationdoesnotconstitute
a notation of such conditions but will be considered together with all
other material evidence in determinations as to
inception.” 38 C.F.R. § 3.304(b)(1) (2011).
“A preexisting injury or disease will be considered to have been
aggravated by active military, naval, or air
service, where there is an increase in disability during service, unless
there is a specific finding that the increase in
disability is due to the natural progress of the disease.” 38 U.S.C. §
1153.
4
3
3

Clear and unmistakable evidence means that the evidence “‘cannot be
misinterpreted and
misunderstood, i.e., it is undebatable.'” Quirin v. Shinseki, 22 Vet.App.
390, 396 (2009) (citing
Vanersonv.West,12Vet.App.254,258-59(1999)).5
Theclear-and-unmistakable-evidencestandard
is an “onerous” one. Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing
Akins v. Derwinski,
1 Vet.App. 228, 232 (1991)); see also Vanerson, 12 Vet.App. at 263 (
Nebeker, C.J., concurring in
part and dissenting in part) (“[O]nly an inference that is iron clad and
copper riveted can be
‘unmistakable.'”). 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 for the preexisting condition. Wagner, 370 F.3d at 1096.
Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts 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.”).
In presumption of soundness cases, the Secretary may show a lack of
aggravation by establishing, with clear and unmistakable evidence, that there was 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. In Wagner, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the term “aggravation” has the same meaning in sections
1111 (presumption of soundness) and 1153 (presumption of aggravation). Id.
Although the same word “aggravation” has a common meaning in both instances, this linguistic overlap does not signal that the presumption of aggravation in Section 1153, with its attendant burden of proof rules, is

The Court notes that the Secretary’s regulation employs the phrase ”
obvious or manifest” to describe his interpretation of clear and unmistakable evidence. See 38 C.F.R. § 3.304( a). The Secretary does not argue that this standard differs from the characterization of “undebatable” that the Court has advanced and confirmed in its precedents.
In fact, he concedes that the evidence underlying a determination as to
preexistence and lack of aggravation must be undebatable. See Secretary’s Brief at 3. The Court perceives no divergence in the standards.
5
4

triggered in presumption of soundness cases once preexistence of the
injury or disease has been established.6
Rather, the aggravation analysis proceeds under the aggravation prong of
the presumption of soundness. As such, the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative evidence to prove that there was no aggravation. 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.

B. Standard and Scope of Review
TheCourt
reviewsdenovoaBoarddecisionconcerningtheadequacyoftheevidenceoffered
to rebut the presumption of soundness, while giving deferential treatment
to the Board’s underlying
factual findings and determinations of credibility. Miller v. West, 11 Vet.
App. 345, 347 (1998); see
also Quirin, 22 Vet.App. at 396. One example of a factual determination
the Board might make is
whether the condition in question was noted on the entrance examination
report.
The scope of the Court’s de novo review whether the presumption has been
rebutted extends
beyond the findings of the Board to all the evidence of record. See
Vanerson, 12 Vet.App. at 261
(pre-Wagner case) (“[T]he question is . . . whether the evidence as a
whole, clearlyand unmistakably
demonstrates that the injury or disease existed prior to service.”); see
also Kinnaman v. Principi, 4
Vet.App. 20, 27 (1993) (Court reviewed evidence that the Board did not
discuss in concluding that
the presumption had not been rebutted); but see Crowe v. Brown, 7 Vet.App.
238, 246 (1995)
(indicating that the Court undertakes “an independent examination of
whether the facts found bythe
[Board] satisfactorily rebut the presumption of sound condition”);
Junstrom v. Brown, 6 Vet.App.
An important distinction between section 1111’s aggravation prong of the
presumption of soundness and
section 1153’s presumption of aggravation is the burden of proof. Under
section 1111, the burden is on the Government
to show by clear and unmistakable evidence that there was no increase in
disability in service or, that any increase was
due to the natural progress of the disease. Wagner, 370 F.3d at 1096.
Under section 1153, however, the appellant bears
the burden of showing that his preexisting condition worsened in service.
Id. Once the veteran establishes worsening,
the burden shifts to the Secretary to show by clear and unmistakable
evidence that the worsening of the condition was
due to the natural progress of the disease. Id.
6
5

264, 266 (1994) (“[T]his Court is required to make an independent
determination of whether the
facts found by the [Board] satisfactorily rebut the presumption of
soundness.”).
C. The Role of the Presumption of Soundness in Determining Service
Connection
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
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 of
aggravation satisfies incurrence or aggravation element). In order to
invoke the presumption of
soundness, 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 ordinarilyoperates to satisfy the second Shedden requirement
without further proof. The
presumption may be rebutted, however, as described above.
The presumption of soundness strongly favors the conclusion that any
occurrence of injury
or disease during service establishes that the in-service medical problems
were incurred in the line
of duty, that is, during active service and not as a result of the service
member’s own misconduct.
See id. at 1367. When VA fails to carry its burden as to either
preexistence or lack of aggravation,
“whether and to what extent the veteran [is] entitled to compensation for
the injury would be
determined upon the assumption that the injury was incurred during service
.” Wagner, 370 F.3d at
1094.
It does not necessarily follow, however, that an unrebutted presumption of
soundness will
lead to service connection for the disease or injury. The appellant must
still demonstrate a current
disability and a nexus between his current disability and the injury or
disease in service. 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).
6

III. ANALYSIS
A. The Preexistence Prong of the Presumption of Soundness
Therecordisrepletewith medicalrecordsindicatingthattheappellant’s Legg-
Perthesdisease
was a condition diagnosed during his childhood, when he was approximately
age six. A service
medical record (SMR) dated October 23, 1970, noted that the appellant had
been complaining of left
thigh pain for at least two weeks and had “Hx [history] of Perthes Dz [
disease].” R. at 261. This
SMR further noted that he was x-rayed and another document of the same
date, which may be the
request for x-ray, notes “Hx [history of Leg[g] Perthes disease since he
was [six] years old.” R. at
256. The medical report recommending an MEB evaluation states: “Patient
gives a Hx [history] of
Legg Perthes disease since he was [six years] old.” R. at 234. Finally, a
report dated August 16,
2006, from a Dr. Potter of the Texas Department of Criminal Justice noted
that the appellant had
been incarcerated since 1985 and noted various complaints of pain
associated with Legg-Perthes
disease. Among its other notations, the report states that in April 1991
the appellant “claimed a life
long deformity of the left femoral head and requested pain control.” R. at
170.
The record also contains some clinical evidence that tends to support a
finding that the
condition preexisted service. An x-ray report, furnished in response to an
October 29, 1970, request
states: “Severe deformity of left [illegible] and femoral head consistent
with old Legg[-]Perthes
disease.” R. at 232. An x-ray report dated February 8, 1985, notes “an old
deformity of the femoral
head and neck compatible with an old Legg-Perthes disease.” R. at 153.
Another x-ray report, for
x-rays taken on or about January 27, 1989, notes “flattening of the left
femoral head and shortening
of the left femoral neck . . . probably secondary to Legg-Perthes [d]
isease as a child.” R. at 157.
Another x-ray report generated in November 1989, by the same medical
facility, reports essentially
the same evaluation. See R. at 159.
After reiterating this evidence, the Board found that there was clear and
unmistakable
evidence that the appellant’s Legg-Perthes disease preexisted service.
The Board cited
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), for the proposition
that a lay statement is
competent evidence to report a contemporaneous diagnosis. See R. at 11.
The appellant argues that the evidence of record does not rise to the
level of clear and
unmistakable evidence. He asserts that the only clinical evidence is an x-
ray report stating that the
7

hip condition was “consistent with” old Legg-Perthes disease, which is
inferential evidence at best.
He further argues that none of the in-service medical reports fulfill the
requirements of 38 C.F.R.
§ 3.304(b) for detailed medical analysis relating all medical and other
known facts to accepted
medical principles, including those regarding the character and course of
the disease.
This Court has previouslyconcluded, however, that, “as a matter of law
, . . . the presumption
of soundness [could be] . . . rebutted by clear and unmistakable evidence
consisting of [the]
appellant’s own admissions . . . of a preservice [disability].” Doran v.
Brown, 6 Vet.App. 283, 286
(1994). The Federal Circuit favorably cited Doran, and stated that a later
medical opinion based on
statements made by the veteran about the preservice history of his
condition may be sufficient to
rebut the preexistence prong of the presumption of soundness,
notwithstanding the lack of
contemporaneous clinical evidence or recorded history. See Harris v. West,
203 F.3d 1347, 1349
(Fed. Cir. 2000). Thus, in the absence of anycontention that the appellant
nevermade the statements
attributed to him, those statements alone may rebut the preexistence prong
of the presumption of
soundness.
The other evidence of record only reinforces the appellant’s statements as
to the onset of the
disease. The in-service medical records indicate that the condition of the
appellant’s hip was
consistent with an old, rather than a recentlydeveloped, Legg-Perthe’s
disease. Additionally, during
his incarceration the appellant referred to a lifelong difficulty with a
hip deformity. See R. at 96,
1558. Thus, the Court agrees with the Board that the evidence of record
constitutes clear and
unmistakableevidencethattheappellant’s Legg-Perthesdiseasepreexisted
service. Thatconclusion,
however, does not end the analysis.
B. The Aggravation Prong of the Presumption of Soundness
The Board began its discussion of the law of aggravation with an excursion
into the
provisions concerning the presumption of aggravation.
A preexisting injury or disease will be considered to have been aggravated
by active
service where there is an increase in disability during such service,
unless there is a
specific finding that the increase in disability is due to the natural
progress of the
disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and
unmistakable (obvious
or manifest) evidence is required to rebut the presumption of aggravation
where the
pre-service disability underwent an increase in severity during service on
the basis
of all the evidence of record pertaining to the manifestations of the
disability prior
to, during, and subsequent to service. 38 C.F.R. § 3.306(b).
8

R. at 7-8. As noted previously, however, neither the presumption of
aggravation of section 1153 nor
the regulation implementing that statutory provision, § 3.306, has any
application to an analysis
under the aggravation prong of the presumption of soundness in section
1111. These provisions
apply to only one situation: where the induction examination notes a
preexisting condition that is
alleged to have been aggravated. See Wagner, 370 F.3d at 1096 (“[I]f a
preexisting disorder is noted
upon entry into service . . . the veteran may bring a claim for service-
connected aggravation of that
disorder. In that case section 1153 applies and the burden falls on the
veteran to establish
aggravation.” (emphasis added)). When the presumption of soundness applies,
however, the burden
remains on the Secretary to prove lack of aggravation and the claimant has
no burden to produce
evidence of aggravation.
In conflating these two provisions, the Board failed to recognize the
Secretary’s burden to
prove lack of aggravation. The Board began its analysis by noting “that
there is no competent
evidence of worsening of the Veteran’s preexisting hip disorder during his
verybrief period of active
service from October 1, 1970, to November 24, 1970.” R. at 11. The Board
further noted that
“[s]ervice treatment records are entirely negative for findings or reports
of left hip injury during
service.” Id.
Additionally, the Board found it significant that “the report of Medical
Board
proceedings includes contemporaneous in-service medical opinion evidence
by a physician that the
Veteran’s Legg-Perthes disease was not aggravated during service.” Id.
Preliminarily, the Court notes that there is no requirement of a specific
injury or trauma in
order for the preexisting condition to have been aggravated. Rather,
service connection may be
awarded for any aggravation of a preexisting disease or injury during
service. See 38 C.F.R.
§ 3.303(a) (2011). It is lack of aggravation that the Secretary must
prove, not lack of an injury.
Our dissenting colleague encroaches on the role of a physician when he
suggests that “the
absence of an in-service injury tends to make it less likely that [the
appellant’s] condition was
aggravated than if he had injured his left hip in service.” Dissent at 2.
There is no medical evidence
in the record that addresses the effect of an injury on Legg-Perthes
disease. For instance, if the
appellant had fallen and bruised the hip, it is not clear that this
occurrence would have increased the
likelihood of aggravation of Legg-Perthes disease, which has to do with
deterioration of the top of
the femur. Similarly, there is no medical evidence of record that
discusses the basic characteristics
9

of the disease or how it may be have been aggravated by the rigors of
basic training. It is not the role
of the Court or the Board to speculate either that an injurywould have
aggravated the disease, or that
the rigors of basic training would not have aggravated the underlying
disease.
The Board’s reliance on the absence of record evidence of worsening is
flawed for at least
three reasons. First, 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).7
Second, and more fundamentally, in the presumption of soundness context,
such reliance
effects an impermissible burden shift. If the presumption of soundness
applies, and the SMRs do
not reflect the fact of aggravation of a preexisting condition, reliance
on this absence of evidence
requires the appellant to generate postservice medical evidence to prove
the aggravation that is to
be presumed under section 1111. As noted above, however, the claimant has
a burden to prove an
increase in severity only in presumption of aggravation cases. 38 U.S.C. §
1153; Wagner, 370 F.3d
at 1096. In presumption of soundness cases, the burden is on the Secretary
to prove lack of
aggravation by clear and unmistakable evidence.8
Id. Finally, the appellant correctly noted at oral
The majority believes that its analysis here is entirely consistent with
the framework that our dissenting
colleague has so elegantly set forth in Buczynski and in Kahana v.
Shinseki, 24 Vet.App. 428 (2011). In both cases, it
is clear that, as a general matter, the absence of evidence is not
substantive negative evidence. While the majority agrees
that this is not an absolute rule, there must be “a proper foundation . . .
to demonstrate that such silence has a tendency
to prove or disprove a relevant fact.” Post at 3. Both cases reference
Federal Rule of Evidence 803(7), to the effect that
“the absence of an entry in a record may be evidence against the existence
of a fact if such a fact would ordinarily be
recorded.” Buczynski, 24 Vet.App. at 224; Kahana, 24 Vet.App. at 440 (
Lance, J., concurring). Here there is no
evidentiary foundation, or even a logical reason to suppose, that in the
context of treatment by a corpsman or other
service medical personnel, aggravation of a preexisting condition would
ordinarily be considered, much less recorded.
The dissent also relies on Maxson, supra, to argue that the lack of
postservice treatment records can be
considered when determining whether a preexisting condition was aggravated
during service. Maxson does state that
the lack of treatment records can be considered along with other relevant
factors, including the “nature and course of the
disease or disability, the amount of time that elapsed since military
service, and any other relevant facts.” Id. at 1333.
Here, the problem is that the record is bereft of any evidence concerning
the nature and course of Legg-Perthes disease.
Without independent medical evidence regarding the nature and course of
the appellant’s condition, the Court is left to
speculate as to the significance of the lack of postservice treatment for
the condition.
The appellant further argues that the fact he was discharged from service
after a clean entrance examination
constitutes prima facie evidence of an increase in disability. He reasons
that because there is no evidence of the natural
progression of the disease, he is entitled to a finding of aggravation.
Because the MEB report found him medically fit
for retention, however, the mere fact of discharge does not necessarily
constitute evidence of worsening. Neither does
this finding constitute evidence against aggravation, however, as the
dissent suggests. Post at 1-2. The record indicates
that the appellant no longer met the procurement standards for induction
into the armed services (R. at 234). If anything,
the change in the PULHES rating from “1” at enlistment to “P3” at
separation (R. at 221) would tend to indicate a
worsening of the hip condition. The PULHES system teaches that a soldier
may continue in military service under a
8
7
10

argument that there was no evidence of the degree of severity of his Legg-
Perthes condition between
its first diagnosis when he was age six and the development of pain when
he was in basic training.
The Board therefore had no basis for assuming that the notations of hip
pain in the SMRs did not
signal worsening or increase in severity.
In this case, the only affirmative evidence pertaining to the issue of
aggravation was a box
on the MEB form, which contained an “X” indicating that the condition had
not been aggravated by
active duty. There was no analysis or medical explanation accompanying
this conclusion. The
report provides no means of determining whether the MEB found that there
was no increase in
disability or found that any increase was due to the natural progress of
the disease. See Wagner, 370
F.3d at 1096. As to the latter possibility, the MEB report contains
neither a finding that any increase
in severity was due to the natural progress of the disease, nor any
analysis of medical evidence to
support such a finding. The Court agrees with the dissent that an MEB
report “that does not contain
a narrative explaining why the doctors on the panel reached the conclusion
that a condition
preexisted service and was not aggravated by it will never contain the
detail necessary to deny a
claim.” Post at 4. In short, such evidence falls woefully short of clear
and unmistakable evidence.
In his supplemental briefing the Secretary further conceded that there are
no special indices
of reliability arising from the manner in which an MEB report is prepared.
There is therefore no
reason that the Court should not follow its caselaw that such an
unexplained conclusory opinion is
entitled to no weight in a service-connection context. See Nieves-
Rodriguez v. Peake, 22 Vet.App.
295, 304 (2008).9
In Nieves-Rodriguez, the Court observed that “[i]t is the fully
articulated, sound
reasoning for the conclusion . . . that contributes probative value to a
medical opinion.” Id.
The dissent suggests, without citation, that the endorsement of the
unexplained and
unsupported conclusion by three service physicians “makes it more probable
that the conclusion is
true than if only a single doctor were involved or if a panel were divided
.” Post at 1. As a matter
limited duty profile. Thus, the fact that the appellant was fit for
retention–in the unexplained judgment of the signatories
to the MEB report–is no evidence as to the existence of aggravation or
the lack thereof.
The Secretary cites Stover v. Mansfield, 21 Vet.App. 485, 492 (2007) for
the proposition that the finding of
a U.S. Navy Physical Examnation Board (PEB) that a disability was not
aggravated by service is evidence to be weighed
by the Board. However, there is no record of a PEB report or proceeding in
this case. Assuming that the MEB evidence
of lack of aggravation is to be analogously weighed, however, on these
facts the MEB report is not entitled to any
probative weight. Nieves-Rodriguez, 22 Vet.App. at 304.
9
11

of mathematics, however, any multiple of nothing is still nothing. Thus,
an accretion of medical
opinions, each of which is entitled to no weight in its own right, cannot
add probative value to the
ultimate medical conclusion.
In the Court’s view, the concerns for articulated, sound reasoning
underlying Nieves-
Rodriguez are at their zenith when VA attempts to carry its burden of
rebutting either prong of the
presumption of soundness by clear and unmistakable evidence. The level of
reasoning and analysis
that is appropriate to that task is amply illustrated in the Secretary’s
own regulation:
(b) Presumption of Soundness. The veteran will be considered to have been
in
sound condition when examined accepted and enrolled for service, except as
to
defects, infirmities, or disorders noted at entrance into service, or
where clear and
unmistakable (obvious or manifest) evidence demonstrates that an inquiry
or disease
existed prior thereto and was not aggravated by such service. Only such
conditions
as are recorded in examination reports are to be considered as noted.
(1) History of preservice existence of conditions recorded at the time of
examination does not constitute a notation of such conditions but will be
considered
together with all other material evidence in determinations as to
inception.
Determinations should not be based on medical judgment alone as
distinguished
from accepted medical principles or on history alone without regard to
clinical
factors pertinent to the basic character, origin, and development of such
injury or
disease. They should be based on thorough analysis of the evidentiary
showing and
careful correlation of all material facts, with due regard to accepted
medical
principles pertaining to the history, manifestations, clinical course, and
character of
the particular injury or disease or residuals thereof.
(2) History conforming to accepted medical principles should be given due
consideration, in conjunction with basic clinical data, and be accorded
probative
valueconsistentwith acceptedmedicalandevidentiary principlesin relation to
value
consistent with accepted medical evidence relating to incurrence, symptoms,
and
course of the injury and disease, including official and other records
made prior to,
during or subsequent to service, together with all other lay and medical
evidence
concerningtheinception,
developmentandmanifestationsoftheparticularcondition
will be taken into full account.
38 C.F.R. § 3.304 (emphasis added). Contrary to this regulatory provision,
there is not a single
statement of accepted medical principles, much less an analysis of the
clinical factors and other
evidence in light of those principles, in the MEB report or anywhere else
in the record.
12

The dissent offers the proposition that “if the opinion is lacking in
detail, then it maybe given
some weight based upon the amount of information and analysis it contains.”
Post at 2. The
problem here, however, is that the MEB report is bereft of any information
and analysis useful to the
Court’s review of its conclusion. Thus, by the dissent’s own reasoning,
the report has no probative
value.
Furthermore, the lack of discussion as to how the conclusions on the MEB
report were
arrived at prevents the Board and the Court from properlyassessing whether
those conclusions were
based on a sufficient evidentiary basis. See Nieves-Rodriguez, 22 Vet.App.
at 302 (requiring the
Board and the Court to ensure that medical opinions are made on the basis
of sufficient facts or data
and the application of reliable medical principles). The Secretary,
however, argues that “the
judgment of the medical professionals who comprise the MEB that an opinion
can be rendered on
anyone or moremedicalissues based upon the extant evidence is a
medicalconclusion which cannot
be independently second guessed by either the Board or this Court.”
Secretary’s Supplemental Brief
at 16. In fact, citing Cox v. Nicholson, 20 Vet.App. 563, 569 (2007), the
Secretary further offers the
suggestion that “it should be presumed that the MEB found that it had
sufficient evidence on which
to base [its] conclusions.” Id. at 17.
The assessment whetherthe physician’s report is supported
bymedicalevidence that pertains
to the conclusion reached, however, is a significant part of what the
Court does on de novo review.
Without such review, the Court would be in the position of rubber stamping
what may be nothing
more than a bare, ad hoc assertion. The Secretary attempts to extend Cox
to cover matters to which
that opinion was never directed. The presumed competence of medical
personnel to render an
opinion does not create any presumption that the medical analysis
underlying an opinion in a
particular case is correct.
The Secretary argues that the factors listed in the regulation e.g.,
clinical factors, medical
principles, thorough analysis, need not appear in the MEB report, but
rather pertain to the
determinations to be made by the Board. This argument rings hollow,
however, in view of the fact
that the Board may rely only on independent medical evidence to make its
determinations. See
Colvin v. Derwinski, 1 Vet.App. 171 (1991). If the MEB report does not
contain sufficient
discussion, the Board must obtain further medical evidence to support the
required regulatory
analysis, which it expressly declined to do in this instance.
13

It will also not do to argue that the MEB report becomes clear and
unmistakable evidence
by virtue of the fact that it is the only contemporaneous evidence
pertaining to aggravation. Bynow
it should be clear that the veteran has no burden to produce evidence of
aggravation, although the
veteran may choose to do so. Instead, the evidence of lack of aggravation
produced by the Secretary
must rise to the level of clear and unmistakable evidence on its own merit,
without reference to any
countervailing evidence.
It is thereforeuntenablefortheSecretarytoadvocateaffirmanceoftheBoard’s
decisionwhen
the only affirmative evidence in support is an unexplained “X” on a form.
Affirmance on such a
basis would require the Board and the Court to accept a bare conclusion,
or medical judgment,
contrary to established caselaw and the Secretary’s own regulation.
C. The Development of Clear and Unmistakable Evidence
If there is any lingering doubt, let it be clear that adjudicators may not
deny claims involving
the presumption of soundness based upon MEB reports containing no
supporting analysis. Rather,
VAandtheBoardmust seekotherevidence commensuratewith
theappropriateevidentiarystandard
of clear and unmistakable evidence.
If the SMRs and discharge reports lack sufficient content to rebut the
aggravation prong of
the presumption of soundness, that is, to prove lack of aggravation, the
Secretaryand the Board have
several options. At oral argument, the Secretaryconceded that he would
have the authorityto obtain
an opinion from a VA physician when a veteran is discharged from service
for medical reasons.
Alternatively,
VAmaysubpoenapreservicemedicalrecordsandinterviewpeoplewhowerefamiliar
with the claimant’s physical condition prior to service. See 38 U.S.C. §
5711; 38 C.F.R. § 2.2
(2011). Such evidence, when evaluated by a competent physician, may enable
the establishment of
a preservicemedical baseline for the condition for which service
connection is sought. Cf. 38 C.F.R.
§ 3.310 (2011). The comparison of the preservice baseline with the
condition soon after service
could be a reliable and straightforward method of proving lack of
aggravation.
Lacking the evidence to establish such a baseline, the Secretary may
attempt to carry his
evidentiary burden with a postservice medical opinion that discusses “the
character of the particular
injury or disease,” 38 C.F.R. § 3.304(b)(1), in relation to the available
evidence. In certain cases,
the nature of a preexisting disease or injury may imply an extremely low
likelihood of aggravation
bya limited period of even intense physical training. See 38 C.F.R. § 3.
303(c). If a physician is able
14

to support such a conclusion with a suitable medical explanation,
supported by extant medical
knowledge and the facts of record, such an opinion might constitute or
contribute to clear and
unmistakable evidence of lack of aggravation.
The Board and the Secretary are free to pursue any such evidence during
the development
and administrative appeal of the claim. This Court has given VA wide
latitude in developing
evidence to rebut presumptions. See Douglas v. Shinseki, 23 Vet.App. 19,
24 (2009) (“[T]he
Secretary’s authority to develop a claim necessarily includes the
authority to collect and develop
evidence that might rebut the presumption of service connection.”);
Shoffner v. Principi,
16 Vet.App. 208, 213 (2002) (Board has discretion below as to how much
development is required).
D. Remedy
After VA and the Board have had a full opportunity to develop the record,
however, the
Court’s role is basically to assess whether the Secretaryhas succeeded in
carrying his burden. In this
instance, the Court holds that the Secretary failed to carry his burden of
proving lack of aggravation
by clear and unmistakable evidence. Reversal, not remand, is therefore the
appropriate remedy.
In Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), the Federal Circuit
affirmed this
Court’s remand of a presumption of soundness case for clarification of
certain medical evidence of
record. The dissent glosses over the Federal Circuit’s statement in Adams
that it was because of the
lack of clarity in the medical evidence that a remand was the appropriate
remedy. The Federal
Circuit focused on ambiguity in the VA examiner’s report, concluding that
the report could be
interpreted in two ways, one way that would be sufficient or another
insufficient to rebut the
presumption of soundness. It was because of this lack of clarity in the
evidence that the Federal
Circuit affirmed this Court’s conclusion that further factual inquiry was
needed to resolve the VA
examiner’s intent. However, the Federal Circuit distinguished between
clarification of the medical
evidence and obvious insufficiency of that evidence.
This is not a case in which the court was faced with evidence that was
clearly
insufficient to overcome the presumption of sound condition and in which
the court
remanded the matter to the Board in order to allow [VA] to attempt to
introduce new
evidence sufficient to make up the shortfall.
15

Id. at 1321-22. The clear import of this language is that it would be
improper to remand the case in
the face of medical evidence that is plainly insufficient to rebut the
presumption of soundness. See
also Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002) (reiterating
distinction).
In this case, the “X” in the “no” column of the MEB report for “aggravated
by active duty”
is in no way unclear, or as the dissent seems to suggest, ambiguous. See
Post at 5. Rather, it is
simply unsupported, unexplained, and arrived at employing an insufficient
standard of proof.
Because it is the only affirmative evidence of lack of aggravation, there
is clearly insufficient
evidence to rebut the aggravation prong of the presumption of soundness,
making remand improper.
Moreover, it is unclear how a remand would be anything other than yet
another opportunity
to generate more evidence to make up the shortfall on the aggravation
issue. The Secretary did not
avail himself of the opportunity, which he concedes was available, to
develop evidence on the
aggravation issue in 1970. In the course of this claim, the Board twice
elected not to seek further
medical evidence on the aggravation prong when the case was before it on
administrative review.
In the decision here on appeal, the Board expressly declined to seek any
further medical evidence
after the case had been remanded for a more complete consideration of the
presumption of
soundness. The Board’s reasoning was as follows:
[T]here is no reasonable possibility that any current VA examination or
opinion
would result in findings that would provide a reasonable possibilityof
substantiating
the claim. Accordingly, the Board finds that an etiology opinion is not ”
necessary”
to decide this claim for service connection. See generally Wells v.
Principi, 326 F.3d
1381 (Fed. Cir. 2003).
R. at 7. Clearly, the Board misperceived the evidentiary posture of the
case and abdicated its
opportunity to develop suitable evidence of lack of aggravation.
There has been no lack of clarity in the law pertaining to the presumption
of soundness. The
problem has been that VA has yet to step up to its responsibility under
that law and its own
regulation. Further, there is no immediate cost to the taxpayers in this
particular reversal, because
the veteran has only received the benefit of the presumption soundness. To
obtain service
connection, he still would need to establish that he has a current
disability and a nexus to the in-
service aggravation. See Shedden, supra. Nonetheless, any cost to
taxpayers is dwarfed by the
prospect of future cases generated by the misperception that the Court
will tolerate the continuance
of defective evidentiary development in presumption of soundness cases.
16

Moreover, there is a certain uniformity of treatment of similarly
situated parties before the
Court that is necessary to the appearance of fairness. See Hodge v. West,
155 F.3d 1356, 1363 (Fed.
Cir. 1998) (“In the context of veterans’ benefits . . . the importance of
systemic fairness and the
appearance of fairness carries great weight.”). The Court would not remand
a case when a veteran
fails to carry a point on which he or she has the burden of proof. It
would be unseemly to so
accommodate VA and the Board as to matters on which the Government has the
burden of proof.
Therefore, the Court will reverse the Board’s finding that the aggravation
prong of the
presumption of soundness was rebutted, that is, that service did not
aggravate the appellant’s Legg-
Perthes disease. TheBoardis directedto enterafinding that the appellant’s
preexisting Legg-Perthes
disease was aggravated in service. The Court will remand the case for
development on the other
service-connectionissues. Onremand,theBoardandanyVAmedicalexaminer(s)
mustassumethat
the appellant aggravated his Legg-Perthe’s disease during service.
In pursuing his case on remand, the appellant will be free to submit
additional evidence and
argument in support of his service connection claim for his hip condition,
and the Board is required
to consider any such evidence and argument. See Kay v. Principi, 16 Vet.
App. 529, 534 (2002).
IV. CONCLUSION
Based on the foregoing reasoning, the Court REVERSES the Board’s November
18, 2009,
determination that the presumption of soundness had been rebutted, directs
that a finding of in-
service aggravation of the hip condition be entered, and REMANDS the case
for further
development consistent with this decision.
17

LANCE, Judge, dissenting: I believe the proper disposition of this case
is for the Court to remand
the matter to the Board foranadequatemedicalexamination basedon”
acceptedmedicalprinciples,”
in accord with 38 C.F.R. § 3.304(a)(1). Although I believe the majority’s
analysis proceeds in the
correct general direction, there are three aspects of the opinion that
concern me. First, I do not
believe the opinion fullyand accuratelyevaluates the evidence. Second,
Ibelieve the opinion misses
an opportunity to provide clear guidance to adjudicators below. Finally, I
do not believe that the
remedy chosen is either required or appropriate. Therefore, I must dissent.
I. ANALYSIS OF THE EVIDENCE
My first concern is that the majority understates the current evidence
that suggests that the
appellant’s condition was not aggravated by service. The majority frames
the issue as “whether a
medical examination board (MEB) report containing only an unexplained ‘X’
in a box on a form can
constitute clear and unmistakable evidence of lack of aggravation.” Ante
at 1. However, the mark
on the MEB report is far from the only evidence against this claim.
Relevant evidence is anything
that “has any tendency to make a fact more or less probable than it would
be without the evidence.”
FED. R. EVID. 401(a). A piece of evidence need not be conclusive to be
relevant and the ultimate
question presented is whether the totality of the evidence rose to the
necessary level to deny the
claim, not whether one particular piece of evidence was sufficient.
In this case, there are numerous pieces of evidence against the
appellant’s claim. As to the
MEB report itself, the mark indicating that his condition existed prior to
service and was not
aggravated by it is not the only relevant portion. The report also
indicates that three doctors were
unanimous in reaching that conclusion. R. at 231. Although a claim cannot
be decided merely by
counting the number of doctors in support of or against it, the fact that
additional doctors reached
the same conclusionandthatthedoctorswereunanimous makesit
moreprobablethatthe conclusion
is true than if only a single doctor were involved or if a panel were
divided. See Kahana v. Shinseki,
24 Vet.App. 428, 438 n.8 (2011) (Lance, J., concurring) (noting that an
opinion that lacks detail may
still lend some support to other opinions that reach the same conclusion).
The report also indicated
that the appellant was “medically fit” “for further military service.” R.
at. 230. This finding in the
report also tends to show that his condition was not permanently
aggravated by service.
18

Aside from the MEB report, there is other evidence in the record against
the claim that the
majority fails to acknowledge. First, the appellant’s SMRs do not indicate
that he suffered a leg
injury in service. Even though there is presumption of aggravation, the
absence of an in-service
injury tends to make it less likely that his condition was aggravated by
service than if he had injured
his left hip in service. Second, the appellant had only seven-and-a-half
weeks of service and his
condition was observed during his first few weeks of service. Just as a
long career in service would
make it more likely that a condition was aggravated by service, very brief
service tends to make it
less likely that a condition was aggravated by service. As the Federal
Circuit recognized in Maxson
v. Gober, basic facts about the periods involved in a claim are relevant
evidence on medical
causation issues that are within the common knowledge of a lay adjudicator.
230 F.3d 1330, 1333
(Fed. Cir. 2000). Finally, the record indicates that the appellant did not
seek treatment for his leg
condition until 15 years after service and, even afterward, had extended
periods where he did not
complain of a disability caused by his condition. R. at 141. This is
exactly the type of “evidence of
a prolonged period without medical complaint” that the Federal Circuit in
Maxson concluded was
relevant to the Board’s determination that a condition was not aggravated
by service. Id. Thus, here
the majority is inaccurate in stating that the only evidence against this
claim is one mark on a 40-
year-old form.
I believe the majority’s error in this regard stems from two persistent
problems in analyzing
evidence in veterans claims. The first is a tendency to conflate the
adequacy of a medical opinion
with its probative value. The fact that a medical opinion is inadequate to
decide a claim does not
necessarily mean that the opinion is entitled to no probative weight. If
the opinion is based on an
inaccurate factual premise, then it is correct to discount it entirely.
See Reonal v. Brown, 5 Vet.App.
458, 461 (1993). However, if the opinion is merely lacking in detail, then
it may be given some
weight based upon the amount of information and analysis it contains. See
Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 302 (2008).
The majority is simply in error when it states that a conclusion by a
physician is entitled to
zero probative weight if it is not supported by analysis. If that were
true, then a favorable medical
opinion from a veteran’s doctor that was unsupported by analysis would not
be sufficient to trigger
the Secretary’s duty to assist. See McLendon v. Nicholson, 20 Vet.App. 79,
83 (2006) (holding that
38U.S.C. § 5103A(d)(2) requires that a medical opinion to be provided
where the evidenceindicates
19

that a claim has merit but is insufficient to grant the claim). Indeed,
McLendon explicitly states that
“[t]he types of evidence that ‘indicate’ that a current disability ‘may be
associated with military
service include, but are not limited to, medical evidence that suggests a
nexus but is too equivocal
or lacking in specificity to support a decision on the merits.” Id. (
quoting 38 U.S.C. § 5103A(d)(2)).
Thus, VA is not permitted to completely ignore a bald conclusion by a
doctor that supports a claim
and the majorityis plainlyincorrect to reject the conclusion of the three
doctors who signed the MEB
report by dismissively stating that three times zero is still zero. Ante
at 12.
Put another way, if a tort case were tried before a jury and the plaintiff
had three different
doctors testify that they thought there was causation, a jury could rely
on their unrebutted expertise
even if they did not explain why they reached the stated conclusion.
Indeed, that is precisely the
difference between the jury system and the veterans claims system. It is
not enough that the weight
of the evidence is against the claim in our system. Our system is
transparent and requires the Board
to explain the whythe evidence weighs against the claim. See Allday v.
Brown, 7 Vet.App. 517, 527
(1995) (Board’s statement of reasons or bases for its decision “must be
adequate to enable a claimant
to understand the precise basis for the Board’s decision, as well as to
facilitate informed review in
this Court”). That is why this Court routinely remands claims to obtain a
complete statement of
reasons or bases where other appellate courts review trial determinations
to see whether there is any
reasonable view of the evidence that would support the conclusion reached
by the factfinder after
“draw[ing] all reasonable inferences in favor of the prevailing party.”
Akamai Techs., Inc. v. Cable
& Wireless Internet Servs., Inc., 344 F.3d 1186, 1192 (Fed. Cir. 2003).
The majority makes a similar error in stating that I “encroach[] on the
role of a physician” by observing that the absence of an in-service injury tends to make it less likely that the appellant’s condition was aggravated by service. Although the majority cites no support for their criticism of my observation, it is clearly referring to Colvin v. Derwinski, in which this Court reprimanded the Board for relying on “its own unsubstantiated medical conclusions.” 1 Vet. App. 171, 175 (1991).
However, the Federal Circuit has repeatedly reminded us that Colvin should not be cited as an absolute rule and that the Court must acknowledge that there are some basic principles of medicine that are within the common knowledge of a lay person, which includes both claimants and adjudicators. See Kahana, 24 Vet.App. at 435 (noting that “there is no categorical requirement of ‘”competent medical evidence . . . [when] the determinative issue involves either medical etiology
20

or a medical diagnosis'”” (quoting Davidson v. Shinseki, 581 F.3d 1313,
1316 (Fed. Cir. 2009)(quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)))).
Despite the clarity of instruction from the Federal Circuit, this Court is overdue in providing guidance as to what principles of medicine are within the common knowledge of lay persons.

Unfortunately, the majority opinion misses a useful opportunity to do so.
As discussed above, the
Federal Circuit provided some direction in Maxson. The essential lesson of
Maxson is that lay
persons can recognize the basic connection between an in-service injury or
disease, the passage of
time, and the development of a disability. When a disability develops
shortly after an in-service
disease or injury affecting the same diseased or injured body part or
system, it is simply common
sense to infer that there is a connection. This inference will not always
be correct, but the inference
is accurate enough to have some weight and to trigger the duty to assist.
Conversely, when a
disabilitydoes not developuntil longafterservice,then a connection is
unlikely— especiallyif there
was no injury or disease in service affecting the body part or system at
issue.
To be clear, medical common knowledge must be used with caution. When it
is favorable,
it is not per se sufficient to grant the claim. When, as here, it is
unfavorable, it is not per se sufficient
to deny the claim. Instead, the adjudicator must take care to consider it
on a case by case basis.
Moreover, general medical common knowledge may be rebutted with expert
medical evidence that
shows that the basic intuition is not accurate for a particular set of
facts. Thus, the Board should be
explicit as to how it assigns weight to medical common knowledge in each
case.
In this particular case, the majority is correct that there is no evidence
as to the nature and
progression of Legg-Perthes disease. However, the majority ignores the
fact that lay medical
common knowledge has value precisely when it is unrebutted by expert
evidence to the contrary.
Applying the logic of the majority to discount medical common knowledge in
the absence of
confirmatory expert evidence effectively reinstates the absolute rule of
Colvin that the Federal
Circuit has clearly overruled.
The second problem is the majority’s tendency to ignore the evidentiary
value of the absence
of evidence. The Federal Circuit has made clear that absence of
corroboration is not generally a
basis for discounting lay testimony. See Buchanan v. Nicholson, 451 F.3d
1331, 1336-37 (Fed. Cir.
2006). However, as explained in my separate opinion in Kahana, this does
not prevent an
adjudicator from considering the probative value of silence in the
available evidence if a proper
21

foundation exists to demonstrate that such silence has a tendencyto
proveor disprove a relevant fact.
24 Vet.App. at 440. In this regard, the majority’s reliance on Buczynski v.
Shinseki, 24 Vet.App. 221
(2011) is misplaced. Buczynski does not stand for the absolute rule that
the absence of evidence can
never be considered, but instead states — as elaborated in Kahana, supra,
— that the Board may
consideralackofnotation ofmedicalcondition orsymptoms
assubstantivenegativeevidencewhere
such notation would normally be expected. 24 Vet.App. at 226-27.
The majority states that there is no logical reason to expect that an
injury to the appellant’s
leg would have been recorded if one had occurred in service. Ante at 10 n.
6. However, there is no
basis for holding, as a matter of law, that it is unreasonable to expect
that if the appellant had injured
his leg during his brief service, then that fact would have been
documented somewhere in the
investigation as to whetherhis legcondition was aggravated byservice. Of
course, the fact that there
was no observable injury to the leg in service is not sufficient to rebut
the presumption of
aggravation, but that does not change the fact that the absence of an
observed injury makes it less
likely his condition was aggravated by service than if an injury was noted.
Thus, it appears that the
majority is forgetting that a presumption exists only to allocate the
burden of proof. It cannot rob
evidence of its tendency to make a fact in issue more or less probable
than it would be without the
evidence. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) (a ”
presumption affords a party,
for whose benefit the presumption runs, the luxury of not having to
produce specific evidence to establish the point at issue”).
For these reasons, I believe the majority dramatically understates the
strength of the evidence rebutting the presumption of aggravation, which contributes to the incorrect remedy applied in this case.
II. PROPER EVALUATION OF AN MEB REPORT
My second concern with the majority opinion is that it fails to provide
clear guidance to
adjudicators as to how to handle future cases. The majority correctly
notes that the Secretary’s
regulation has clearly stated what evidence is required to rebut the
presumptions of sound condition
and of aggravation. The majority does a commendable job of quoting 38 C.F.
R. § 3.304 and
emphasizing the key language. Ante at 10-11. However, in its analysis the
opinion moves too
quickly past this regulation.
22

It is § 3.304 that states the Secretary’s interpretation of what the
evidence must show to reach
the threshold necessary to rebut the presumption. The evidence must show
that applying “accepted
medical principles” regarding the nature of the condition to its history
in the case at hand, including
therelevantclinicaldata,wouldresultinfullyinformedmedicalprofessionals
agreeingasto whether
the condition preexisted service or was aggravated by it. To the extent
that this is usually (if not
universally) an issue requiring medical expertise, see Jandreau, 492 F.3d
at 1377 n.4, the Board may
not deny the claim based upon its own medical judgment, but rather must
seek a competent medical
opinion on the issue. See Colvin, 1 Vet.App. at 174.
In this regard, an MEB report that does not contain a narrative explaining
why the doctors
on the panel reached the conclusion that a condition preexisted service
and was not aggravated by
it will never contain the detail necessary to deny a claim. However, such
a report will indicate that
the presumption might not be accurate in a particular case and justify the
Secretary’s decision to seek
a medical opinion that fully addresses the standard and the factors laid
out in § 3.304. See Douglas
v. Shinseki, 23 Vet.App. 19, 25-26 (2009) (holding that the Secretary may
seek an opinion that can
rebut a favorable presumption if the record contains evidence raising the
issue).
Thus, the clear message that this opinion should send to the Secretary is
that adjudicators
should not deny claims based upon MEB reports containing no supporting
analysis, but instead
should seek medical opinions that address the appropriate standard under
the regulation. Such
guidance might be inferred from the majority opinion, but it should be
stated unequivocally.
III. APPROPRIATE REMEDY
Finally, I disagree with the majority that reversal is required in this
case. Reversal is
appropriate where law is settled and the Board’s determination of adequacy
is “clearly erroneous.”
However, I believe that in an area where the Court is providing new
guidance (as it is doing here),
VA should have the opportunity to obtain evidence under that guidance.
As detailed above, there is substantial evidence indicating that this
claim does not have merit
even though VA has not obtained a medical opinion that fully analyzes the
issue under § 3.304. In
my view, we have not clearly held prior to this case that VA must obtain a
proper medical opinion
addressing the regulatory standard if the MEB report does not contain a
narrative analysis sufficient
to apply those factors and, the Board decision in this case was not
clearly erroneous under
23

established law in denying benefits in this case. Indeed, this case is
somewhat similar to Maxson,
where the Federal Circuit affirmed a finding that the presumption had been
rebutted based in large
part on the long period without complaint after service. Thus, I cannot
agree that the Board
“abdicated its opportunity to develop suitable evidence” in this case.
Ante at 14. Although the
majority argues that “[t]here has been no lack of clarity in the law
pertaining to the presumption of
soundness,” ante at 17, the problem is that there has been a profound lack
of clarity in our caselaw
explaining how the Board should weigh evidence. Unfortunately, this
opinion adds to the confusion
rather than helping to resolve it.
As I believe that the Board’s error here was understandable in light of
the gaps in our case
law, I also believe that the majority’s reliance on Adams is misplaced. If
anything, Adams counsels
for remand in this case instead of reversal. In Adams, this Court remanded
a similar claim to the
Board because, even though there was substantial evidence against the
claim, the medical opinion
was ambiguous as to whether it had applied the correct standard. 256 F.3d
at 1319-20. In appealing
to the Federal Circuit, the appellant argued that reversal was the
required remedy because the record
contained “insufficient evidence to rebut the presumption of sound
condition.” Id. at 1321. The
Federal Circuit rejected this argument and held that it was appropriate
for the Court to remand the
case for further development in the form of “an explanation from [the VA
physician] of his opinion,
or if necessary supplemental medical evidence that might shed light on the
ambiguities in [the VA
physician]’s report.” Id. at 1322. In this case, we have a unanimous
opinion from three doctors in
the MEB report that the appellant’s condition preexisted service and was
not aggravated by service.
Although it is not possible to obtain clarification from those doctors,
this is certainly a case where
“supplemental medical evidence”
under Adams would shed light on the ambiguity created by the lack
of a narrative analysis supporting the conclusion in the report. To the
extent that Adams contains
dicta on when reversal would be appropriate based upon different sets of
facts, it is simply not
binding in this case. Even to the extent that Adams endorses reversal
where the evidence presented
to the Court is “clearly insufficient to overcome the presumption,” id. at
1322, I do not believe that
the evidence in this case was clearly insufficient prior to this opinion
clarifying the proper
development and analysis required.
Ultimately, I believe that the Court has discretion in choosing the
appropriate remedy on a
case-by-case basis. Adams recognized that it is our mandate under 38 U.S.C.
§ 7252(a) to choose
24

a remedy “as appropriate” to the case before us. Moreover, the U.S.
Supreme Court in Shinseki v. Sanders warned against the creation of “complex, rigid, and mandatory” rules for this Court that
require particular types of relief regardless of whether they are
consistent with the facts or logic of a particular case. 556 U.S. 396, 407 (2009). In this case, the Court’s decision to reverse the Board’s finding as to the presumption rather than to allow it to be addressed properly on remand is contrary to Adams and Sanders. As a result, it is the taxpayer who is punished for VA’s error even though the error is quite understandable based upon the evidence in this case and the confusion in the law prior to this opinion. Therefore, I must respectfully dissent.
25

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: