Veteranclaims’s Blog

October 12, 2012

Single Judge Application, Horn, 25 Vet.App. at 236; Presumption of Soundness

Excerpts from decision below:

“The presumption of soundness relates to the second service-connection element–the showing of an in-service incurrence or aggravation of a disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Horn, 25 Vet.App. at 236.
Pursuant to the second element, a claim must be based either on an injury
or disease incurred in service or an injury or disease aggravated in service.”
=============================

“As this Court recently held in Horn, the second service connection element is satisfied where the first presumption of soundness rebuttal prong is not satisfied (clear and unmistakable evidence of a preexisting condition) or the second prong is not satisfied (clear and unmistakable evidence of no in-service aggravation of the preexisting condition) and there is “any occurrence of injury or disease during service.” Horn, 25 Vet.App. at 236. In Horn, the Court held that an unexplained conclusion or medical judgment on a service medical examination board (MEB) report, without more, cannot constitute clear and unmistakable evidence of lack of aggravation to rebut the presumption of soundness. Id. at 240-43.”
=============================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1377
ALDO P. MAESTRI, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The appellant, through counsel, appeals from a March 17,
2011,
decision of the Board of Veterans’ Appeals (Board) that denied entitlement
to service connection for
a back disability and a bilateral foot disability. Both parties filed
briefs. The appellant argues that
the Board erred in applying the presumption of soundness, and the
Secretaryconcedes that the April
2005 VA medical examination report regarding the appellant’s spine is
deficient (“equivocal”)
because the examiner essentially required that the asserted in-service
incident causing injury be
verified in the medical records. The Secretary advocates a remand of the
back disability claim and
an affirmance of the Board denial of service connection for the
appellant’s foot disabilityclaim. This
appeal is timely and the Court has jurisdiction over the appeal pursuant
to 38 U.S.C. § 7252(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For
the reasons set forth below, the Board’s March 2011 decision will be
vacated in part and both claims
will be remanded for correct implementation of the presumption of
soundness under HornNext Hit v.
Shinseki, 25 Vet.App. 231 (2012), and further development consistent with
this decision.

I. FACTS
The appellant served on active duty in the U.S. Army from April 1944 to
November 1944.
Record (R.) at 491. The appellant’s entrance examination, of which only an
incomplete copy was
obtained because his records were presumed destroyed byfire (R. at 10),
noted no mental or physical
defects and described the appellant’s feet as normal. R. at 262-63. A May
1944 service medical
record (SMR) noted that the appellant complained of having pain in his
back and feet for manyyears
and no history of injury or treatment. R. at 255. On his November 1944
separation examination
report, the appellant noted, in the section of the report entitled ”
STATEMENT AND MEDICAL
HISTORY OF EXAMINEE,” “backache[,] 5-6 yrs. Never hospitalized” and “[w]
eak feet, 5 yrs.
Never hospitalized.” R. at 253. In the same section of the report, the
appellant noted that both
conditions existed prior to service (“EPTS”) and were aggravated by
military service (“AMS”). Id.
Although the examiner interpreted bilateral foot x-rays as normal (R. at
254), under the heading
“Feet”the examiner recorded: “metatarsalgia, bilateral, moderate [to]
severe, causeundetermined.”
R. at 253. The examiner also indicated that there were no musculoskeletal
defects. Id. The
examiner answered “yes” in a box in response to the question, “In your
opinion does [the] individual
meet physical and mental standards for discharge?” R. at 253. The cause of
separation is noted as
“Below minimum physical standards for induction with no suitable
assignment.” R. at 257.
In April 1986, the appellant filed claims for service connection for a
back condition and a
bilateral foot condition. R. at 988-91. The regional office (RO) denied
the claims in May 1986.
R. at 986-87. The appellant filed a timely Notice of Disagreement the
following month (R. at 981-
82), but did not file a Substantive Appeal after the RO issued a Statement
of the Case in July 1986
(R. at 977-80).
In July 2002, the appellant requested that his claims be reopened. R. at
904-18. The RO
determined that new and material evidence had not been presented to reopen
his claims for service
connection for back and bilateral foot conditions. R. at 857-60. The
appellant perfected an appeal.
R. at 824-25, 848. The Board remanded the appellant’s claims in June 2004.
R. at 804-13.
The appellant underwent a VA spine examination in April 2005. R. at 714-16.
Theappellant
complained of pain in the low back and reported that a tree fell on his
tent in basic training and that
2

he was hit on the head and left shoulder. R. at 715. Spine x-rays
revealed degenerative disc disease
at multiple levels. R. at 716. The examiner opined:
On relation of service connection to back, there appears to be a wide
difference
between the patient’s history and the patient’s medical records. I also
note the results
of a psychiatric examination on this question in the past. If the
patient’s history is
regarded without reference to the records, then he has a claim that he
developed back
pain from the time of the injury occurring in basic training and it has
been present
until the present time. If the records are to be believed, then the [
appellant] had a
pre-existing back pain and there is no service record of exacerbation.
Again if the
medical records and the prior investigations are to be considered, then it
is not as
likely as not that [his] current complaints of pain in his back and his
diagnosis of
degenerative disc disease are service connected.
Id.
The appellant also underwent a VA foot examination in April 2005. R. at
708-09. He
complained of bilateral foot pain and that he could not walk due to foot
and back pain. R. at 708.
The appellant denied any overt history of foot trauma. R. at 708. The
physical examination of the
appellant’s feet demonstrateddiscomfort,pain,andstiffnessin
themetatarsalheadsandhammertoes.
Id. Bilateral foot x-rays revealed foot arthritis and hammertoes, right
worse than left. R. at 709. The
examiner opined that the appellant’s claims file did not reveal that
arthritis or hammertoes were
present before service, had their onset during service, or were caused by
any incident in service. Id.
She further opined that the claims file did not reveal that the appellant ”
sustained anysymptoms that
were permanent or worsening of his condition [while in service].” Id. She
therefore opined that the
appellant’s “[c]urrent foot disability was most likely a natural
progression.” Id.
In June 2007, the Board reopened the appellant’s claims for service
connection for back and
bilateral foot disabilities and denied the claims on the merits. R. at 498-
512, 514. In October 2008,
the Court remanded the Board’s 2007 decision pursuant to a joint motion
for remand. R. at 455, 456-
62. The Board remanded the appellant’s claim for the RO to obtain the
appellant’s Social Security
Administration (SSA) records in February 2009. R. at 430-35. In October
2009, the Board again
denied the appellant’s claims. R. at 145-57. In October 2010, the Court
remanded the Board’s 2009
decision pursuant to a joint motion for remand. R. at 53, 61-66. On March
17, 2011, the Board
denied the appellant’s claims. R. at 3-16.
3

This appeal followed. Subsequent to the filing of briefs, the appellant
filed a notice of
supplemental authorities on June 22, 2012, informing the Court of its
decision in Previous HitHornNext Hit, supra.
II. ANALYSIS
TheBoardfoundthepresumptionofsoundnessapplicableto theappellant’s
claimsfor a back
disability and a bilateral foot disability, due to the factual finding
that there is no documented
notation of such disabilities upon the appellant’s entrance to service. R.
at 10-11; see 38 U.S.C.
§ 1111. The parties do not dispute this finding. The Board further found
that the presumption of
soundnesswasnot rebuttedbecause clear and unmistakable evidencedid
notdemonstratethataback
or foot disability preexisted service. R. at 11-12. The Board accordingly
found that the appellant’s
claim was one based on incurrence of an injury or disease in service. R.
at12 (citing Wagner v.
Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004).
Inconsideringserviceconnection in this regard,theBoardnotedthe appellant’s
assertion that
his current disabilities stem from injuries he suffered in service when he
was struck by a falling tree
branch during a hurricane. R. at 12. The Board determined, however, that,
even accepting the
appellant’s description ofthis incidentascredible,
therewasinsufficientmedicalevidence of a nexus
between the appellant’s current conditions and service. R. at 12-14. The
Board relied on the 2005
VA foot and spine medical opinions, which it found were adequate for
purposes of determining
service connection. Id.
The appellant argues, in part, that the Board erred in finding that there
was no clear and
unmistakable evidence that his back and bilateral foot conditions
preexisted service. Appellant’s
Brief (Br.) at 12-18. The appellant also argues that his preexisting
conditions were aggravated by
serviceandthatthe2005 VA medical opinions with respect to these conditions
wereinadequatewith
respect to the issue of aggravation. Appellant’s Br. at 17, 22-25; R. at
708-09, 714-16.
While the appellant does not clearly express the legal consequences that
he believes flow
from these arguments, he cannot be arguing that the presumption of
soundness has been rebutted
because such rebuttal would defeat his claims. Generally, 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
4

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
service-connection element–the showing of an in-service incurrence or
aggravation of a disease or
injury. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Previous HitHornNext Hit, 25
Vet.App. at 236.
Pursuant to the second element, a claim must be based either on an injury
or disease incurred in
service or an injury or disease aggravated in service. Aggravation can
only be shown if the disease
or injurypreexisted service. Wagner, 370 F.3d at 1093 (noting that
aggravation claims are premised
on the existence of a preexisting injury). “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.” Previous HitHornNext Hit, 25 Vet.App. at 236.
The statutory presumption of soundness provides that when no medical
condition is noted
upon a wartime veteran’s entryinto service, the veteran is presumed to
have been in sound condition
upon entry to service, subject, however, to rebuttal. 38 U.S.C. § 1111;
Wagner, 370 F.3d at 1093.
The presumption can be rebutted where the Secretary meets his burden to
show that clear and
unmistakable evidencedemonstratesthatacondition both preexisted
serviceandwasnot aggravated
by service. Id. at 1096. Where, as here, the Board specifically found that
the presumption of
soundness applies and has not been rebutted, we do not interpret the
appellant’s brief as arguing that
the presumption of soundness is rebutted.
Becausethepresumptionofsoundnessis not rebutted,
theappellant’sclaimcanonlybebased
on incurrence of an injuryor disease in service, as opposed to in-service
aggravation of a preexisting
condition. This is true even if, as the appellant argues, he has a
preexisting condition but rebuttal
of the presumption of soundness fails. The Board correctly recognized that
the court in Wagner
explained that, in this circumstance, section 1111 has the effect of
converting a claim based on
aggravation into a claim based on incurrence. R. at 12; Wagner, 370 F.3d
at 1096 (holding that
38 U.S.C. § 1111 “essentially had the effect of converting an aggravation
claim into one for
[incurrence] where the government [fails to] show a lack of aggravation of
a preexisting condition
5

byclear and unmistakable evidence.”)1
; seealso Joycev.Nicholson,443F.3d.845,847-48(Fed. Cir.
2006) (“Our decision in Wagner made clear that, under the wartime service
regime, there is onlyone
claim for a disability not noted upon entry – a claim for [incurrence].”).
Here, the Board’s implicit finding that the appellant’s service from April
1944 to November
1944 was during wartime is not challenged by the parties. See 38 C.F.R. §
3.2(d) (2012)
(designating the World War II period of war from December 7, 1941, through
December 31, 1946).
Further, the parties do not dispute the Board’s finding that neither a
foot nor a back condition was
noted upon the appellant’s entryinto service and its determination that
the presumption of soundness
therefore applies. R. at 10-11. The Board’s conclusion in this regard is
not undermined by the fact
that the record contains only part of the appellant’s entrance examination
and that the remainder may
have been destroyed by fire. See Quirin v. Shinseki, 22 Vet.App. 390, 397
n.5 (2009) (it would be
purelyspeculativetosuggestthatanydestroyedrecordscontainevidenceofapreexis).
Under the circumstances here, where the Board found that the presumption
of soundness has
not been rebutted, and the SMRs and service separation examination report
show the existence of
an injury or disease, the appellant is entitled to the benefit of the
presumption of soundness, i.e., the
establishment of an in-service incurrence of a back and foot condition.
As this Court recentlyheld in Previous HitHornNext Hit, the second service connection
elementis satisfied where
the first presumption of soundness rebuttal prong is not satisfied (clear
and unmistakable evidence
of a preexisting condition) or the second prong is not satisfied (clear
and unmistakable evidence of
no in-service aggravation of the preexisting condition) and there is “any
occurrence of injury or
disease during service.” Previous HitHornNext Hit, 25 Vet.App. at 236. In Previous HitHornNext Hit, the Court held
that an unexplained
conclusion or medical judgment on a service medical examination board (MEB)
report, without
The U.S. Court of Appeals for the Federal Circuit used the term “service-
connected disability” here. However, the
court clearly was referring to a claim based on service incurrence of an
injury or disease. At the outset of its analysis,
the court noted the statutory definition of “service-connected” as a
disability that was “incurred or aggravated” in the line
of duty. Wagner, 370 F.3d at 1093. It then stated: “In other words, a
claim may either be for a service-connected
disability or for aggravation of a preexisting disease or injury.” Id. The
court explained: “For sake of convenience, we
use the term “service-connected” herein to refer to a disability that is
wholly service-connected, as opposed to an
aggravation claim.” Id. at n.5. The court elaborated on its concept of ”
wholly service-connected” later in its decision:
“This means that no deduction for the degree of disability existing at the
time of entrance will be made if a rating is
awarded.” Id. at 1096. In Joyce v. Nicholson, this Court interpreted the
Wagner decision similarly, stating that if the
presumption of soundness applies, “then ‘the veteran’s claim is one for
service connection [based on incurrence in
service].'” 19 Vet.App. 36, 46 (2005) (alteration in original) (quoting
Wagner, 370 F.3d at 1096).
1
6

more, cannot constitute clear and unmistakable evidence of lack of
aggravation to rebut the
presumption of soundness. Id. at 240-43. There, the induction examination
report contained no
notation of a hip condition or other defect of the lower extremities, an
SMR noted hip pain during
the first three weeks of training, and the MEB report stated that the
veteran was medically fit for
retention under then-current medical fitness standards but diagnosed Legg-
Calve-Perthes disease,
indicating with an “X” that the condition existed prior to service and was
not aggravated by active
duty and recommended separation from service “for Convenience of the
Government.” Id. at 233-
34. In Previous HitHornNext Hit, as here, the Secretary did not meet its burden to satisfy the
standard required for
rebutting the presumption of soundness statute.
There is a notation in Mr. Maestri’s SMRs that he was being seen for
current complaints
(“cc.”) of pain in his feet and back and that he had “pain in feet and
back for many years” but had
no “inj[ury]” and no treatment. R. at 255 (May 1944 SMR). The examiner’s
findings included
“tenderness over both heels” and other notations that are illegible but
refer to his inside heels and his
back. Id. A November 1944 “Report of Physical Examination of Enlisted
Personnel Prior to
Discharge,ReleasefromActiveDutyorRetirement,”
whichwascompletedapproximately7months
after the appellant’s entry into service, reflected that the appellant
reported “backache – 5-6 years.
Never hospitalized” and “weak feet, 5 yrs. Never hospitalized.” R. at 253.
On the same form, the
examiner noted that the appellant met the physical and mental standards
for discharge. Id. And,
although no musculoskeletal defects were noted, the examiner reported, as
to the appellant’s feet,
“metatarsalgia, bilateral, moderate to severe, cause undetermined.” Id. A
November 1944 “Report
of Separation” noted the cause of separation as: “Below minimum physical
standards for induction
with no suitable assignment.” R. at 257.
The appellant submitted a post-service statement asserting that he was in
excellent health
prior to military induction and disputing the notations on service medical
records reflecting that he
reported having back and feet problems for 5 to 6 years. R. at 695.
Another statement of the
appellant noted that he developed back and feet problems while in service
and that he was “100%
fit and healthy” when he entered service. R. at 981. VA medical
examination notes reflected that
appellant reported experiencing pain in his feet while walking during
training but denying any overt
history of foot trauma. R. at 708.
7

With respect to incurrence of an injury or disease in service, the Board
noted that “the
Veteran attributes his current back and bilateral foot disabilities to
injuries he suffered during
training and when struck by a falling tree branch during a hurricane in
service.” R. at 12. The Board
stated: “[E]ven if the Board was to accept, as credible, the Veteran’s
description of in-service injury,
the claims must be denied on the basis of medical nexus to service.” R. at
12. Regardless of
credibility, because the appellant is entitled to the benefit of the
presumption of soundness and there
is some evidence of an in-service incurrence of injury, he has established
the second element of both
his service connection claims.2
Regarding whether the evidence establishes that the appellant’s current
back and foot
disabilities are related to service, the Board erred in requiring that
there be a diagnosed in service
either a “back or foot disability” or a “diagnosed pathology underlying
the Veteran’s complaints.”
R. at 13. The Board stated: “Significantly, as indicated, no actual back
or foot disability was then
shown; and, as noted, complaints of pain alone, do not constitute a
disabilityfor VA purposes.” R. at
13. This statement is contrary to application of the presumption of
soundness to this case that
entitles the appellant to having established an in-service incurrence for
both his back and foot
conditions. There is nothing to preclude a medical examiner from
establishing that the appellant’s
current problems with his back and feet are related to the pain and injury
that have been established
as being incurred in service. The Board confused the issue of whether the
appellant has a current
“disability” with the issue of whether the appellant incurred an injury or
disease in service. And, for
purposes of establishing service incurrence, the second element of a
service connection claim, a
“disability” in service is not required; an injury is sufficient. Moreover,
the Board was not free to
interpret the in-service medical notation of metatarsalgia as representing ”
complaints of pain alone”
without supporting medical evidence. R. at 11; Colvin v. Derwinski, 1 Vet.
App. 171, 175 (1991)
(holding that the Board may not reject medical evidence in the record
based on its own
unsubstantiated medical conclusions).
The Court notes that the Board, in granting service connection in 2007 for
a head condition, accepted as a
factual finding the existence of the falling tree branch incident. R. at
498-512. Such a finding is consistent with service
incurrence of an event established through application of the presumption
of soundness for the appellant’s feet and back.
2
8

In this regard, the Board also erred in using its aforementioned
statement to preclude finding
a nexus to service. The Board stated: “Hence, this evidence [(in-service
notations on SMRs and
establishedincurrence)]
cannotprovidepersuasivesupportforafindingthatsubsequentlydiagnosed
back and foot disabilities are medically related to service, to include on
the basis of in-service
aggravation of pre-existing problems (pain).” Id. This statement is a
medical conclusion that the
Board is not capable of making and violates the principle from Colvin that
the Board may not make
unsubstantiated medical conclusions.
Significantly, as argued by the appellant, the Board erred in relying on
the April 2005 VA
medical examination reports because they were inadequate. Appellant’s Br.
at 25-28; R. at 14. The
Court agrees. The Court first notes that the Board summarily rejected the
appellant’s argument that
the 2005 VA opinions were inadequate based solely on the Board’s statement
that the appellant did
not present or identify “any contrary medical evidence or opinion that, in
fact, supports the claim.”
R. at 14. The reason provided by the Board on this point is not apposite
or dispositive of the
argument made. If VA has provided a medical examination of the appellant,
pursuant to 38 U.S.C.
§ 5103A, VA is obligated to provide an adequate one. The Secretary’s duty
to assist a claimant
includes, among other things, “providing a medical examination or
obtaining a medical opinion
when such an examination or opinion is necessary to make a decision on the
claim.” 38 U.S.C.
§ 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (2012). “[O]nce the Secretary
undertakes the effort to
provideanexaminationwhendevelopingaservice-connectionclaim,evenifnot
statutorilyobligated
to do so, he must provide an adequate one or, at a minimum, notify the
claimant why one will not
or cannot be provided.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007);
see also Bowling v.
Principi, 15 Vet.App. 1, 12 (2001)) (where an examination report is
inadequate, the Board should
remand the case to the RO for further development); Ardison v. Brown, 6
Vet.App. 405, 407 (1994)
(holding that an inadequate medical examination frustrates judicial review).
Here, the central question is whether it is as likely as not that the
appellant’s current foot and
back disabilities are related to service. The 2005 VA medical examiners
failed to provide an opinion
as to the likelihood that the appellant’s present back and bilateral foot
disabilities are causally related
to service, assuming that the appellant suffered an in-service incurrence
of injury to his feet and
back. See Previous HitHornNext Document, 25 Vet.App. at 244-45 (holding that the presumption of
soundness applied,
9

reversing the Board’s finding that service did not aggravate the
veteran’s preexisting Legg-Perthes’s
disease, remanding for development on the other service-connection issues,
and remanding with the
direction that “any VA medical examiner(s) must assume that the appellant
aggravated his Legg-
Perthes’s disease during service.”); R. at 708-09 (April 2005 VA medical
report pertaining to feet);
R. at 714-16 (April 2005 VA medical report pertaining to the appellant’s
back). As such, the Board’s
finding that the 2005 VA medical examination reports are adequate and
probative is clearly
erroneous. See D’Aries v. Peake, 22 Vet.App. 97, 103 (2008) (noting that
whether a medical opinion
is adequate is a finding of fact, which the Court reviews under the ”
clearly erroneous” standard).
The Court therefore vacates the Board’s denial of service connection for
the appellant’s
present back and foot disabilities and leaves undisturbed the Board’s
favorable findings that the
presumption of soundness applied and was not rebutted. The Board is
directed to enter a finding that
the appellant had met the element of service incurrence for both a back
and foot injury. The Court
will remand for development on the other service-connection issues. On
remand, the Board and VA
medical examiner(s) must assume that the appellant incurred an injury to
his back and feet during
service.
On remand, the Board must consider all potential theories of service
connection, including
continuity of symptomatology, and account for the lay evidence of record.
See 38 U.S.C.
§ 7104(d)(1); 38 C.F.R. § 3.303(b) (2012). On remand, the appellant is
free to submit additional
evidence and argument on the remanded claims for entitlement to service
connection for disabilities
of the back and feet, which the Board must consider when readjudicating
his claims. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per
curiam order). The Board and the RO must provide expeditious treatment of
this matter on remand.
See 38 U.S.C. §§ 5109B, 7112.

III. CONCLUSION
Uponconsideration oftheforegoinganalysis, therecordonappeal,
theparties’pleadings, and
the March 17, 2011, Board decision, the Court leaves undisturbed the
Board’s determination, with
respect to both claims for service connection for a back disability and
for a foot disability, that the
presumption of soundness, under 38 U.S.C. § 1111, is applicable and is
not rebutted. The Court
10

directs that the Board enter a finding of in-service incurrence of a back
and foot injury. The
remainder of the Board’s decision is VACATED and the matters are REMANDED
for further
development consistent with this decision.
DATED: October 2, 2012
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
11

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

Create a free website or blog at WordPress.com.

%d bloggers like this: