Veteranclaims’s Blog

October 23, 2012

Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 235 (2012); Presumption of Soundness

Excerpts from decision below:

“To be clear, the aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that “VA may not rest on the notion that the record contains insufficient evidence of aggravation,” and the Secretary’s failure “to produce clear and unmistakable evidence of lack of aggravation” entitles a claimant to a finding of in-service aggravation of the preexisting condition).”
=============================
“Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity
to develop the record, “the Court’s role is . . . to assess whether the
Secretary has succeeded in carrying his burden.” See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, “reversal, not remand, is . . . the appropriate remedy.” Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation).”
=============================
“In this case, the only affirmative evidence of record relied on by the Board to establish lack of aggravation is the June 2010 VA examiner’s report. See R. at 11-12; see also 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.”). However, a review of the June 2010 examiner’s opinion reveals that the examiner’s opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court’s assessment of the sufficiency of a physician’s report concerning lack of aggravation is “a significant part of what the Court does on de novo review”).
First and foremost, the only rationale provided by the June 2010 VA
examiner to support his conclusion that the appellant’s right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the
service medical records of an injury or event. See R. at 73 (stating that
the appellant’s “right club
8

foot is less likely as not permanently aggravated . . . as there is no
evidence of any in-service injury and/or event in the [service medical record] . . . to support any acute findings on x[-]rays or physical
examination that altered the NATURAL history or progression”).”
=============================
As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it “effects an impermissible burden shift” to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (indicating in the context of evaluating whether the Secretary’s proof is sufficient to rebut the presumption of soundness that “there is no reason that the Court should not follow its caselaw that … an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))).
As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination.”
=============================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1831
JERRY L. YARBROUGH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

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

SCHOELEN, Judge: The pro se appellant, Jerry L. Yarbrough, appeals a May
31, 2011,
Board of Veterans’ Appeals (BVA or Board) decision that denied VA
disability compensation
benefits for a right club foot. Record of Proceedings (R.) at 3-15. This
appeal is timely, and the
Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Both parties filed briefs. Single-judge disposition is appropriate.
Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). Because the Secretary failed to carry his burden to
rebut the aggravation prong
of the presumption of soundness, the Court will reverse the Board’s May
2011 decision insofar as
it pertains to the rebuttal of the aggravation prong of the presumption of
soundness and remand the
matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from September 5,
1967, to October
10, 1967. R. at 246. His August 1967 enlistment examination included no
indication of any foot
disorder. R. at 223-24. During the first week of basic training, on
September 11, 1967, the appellant
reported that he was “unable to walk [and] run because of [a] problem [
with] right foot.” R. at 219.
A September 11, 1967, podiatrynote indicates that the appellant wasborn
with a right foot deformity

that was treated with braces. Id. The podiatrist noted that the appellant
walked on the outer border
of the right foot, with the inside highly elevated, and recommended a
medical evaluation board
(MEB). Id. The MEB examination export noted under the section entitled ”
history of present
illness,” that the “[p]atient has pain in right foot as a result of birth
deformity, partially corrected,
resulting in pain on marching, running, jumping[,] and preventing him from
meeting training
requirements.” R. at 214. After conducting a physical examination and
obtaining x-rays of the right
foot, which revealed “marked lateral deviation of callous metatarsus varus
,” the examiner diagnosed
residuals of clubfoot deformity. Id. Because the appellant did not meet
induction standards, the
MEB recommended that he be considered for separation for a condition that “[
EPTS (existed prior
to service)]” and was “not service aggravated.” R. at 215.
In October 2008, the appellant filed a claim for disability compensation
for “aggravation of
right club foot.” R. at 264-75. In support of his claim, the appellant
submitted a June 2008
statement from his treating physician, Dr. Roberts. R. at 282. Dr. Roberts
noted the appellant’s
history as having been born with a right club foot, which was not
surgically corrected, but that after
extensive strengthening and therapy, he was able to walk without a limp
and participate in high
school sports without any difficulty. Id. He also noted the appellant’s
report that he injured his right
foot during basic training, when, “[u]pon jumping, his right foot hit the
edge of [a] pit
hyperextending the foot causing acute pain.” Id. The appellant reported
that he has had a limp since
that time that has not resolved. Id. Dr. Roberts’s physical examination
revealed “varus of the
forefoot with decreased dorsiflexion and severe degenerative changes to
the carpal metacarpal
joints.” Id. He noted that the appellant’s foot is adducted and inverted,
and that he walks on the
outside of the foot. Id. In conclusion, Dr. Roberts opined that “it is at
least as likely as not that the
service treatment, marching, crawling, etc. could have actually aggravated
his right club foot.” Id.
In February 2009, the regional office (RO) issued a rating decision
denying the appellant’s
claim. R. at 172-77. The appellant filed a timely Notice of Disagreement (
R. at 158-61), the RO
issued a Statement of the Case (96-110), and the appellant perfected an
appeal to the Board (R. at
94-95). The appellantalso submitted an additional statement from Dr.
Roberts, dated October 2009,
in which Dr. Roberts stated that he was submitting the letter to clarify
his earlier statement. R. at
88. The content of his statement, however, is identical to that of the
June 2008 letter, except for the
2

degree of certainty expressed in his conclusion, i.e., Dr. Roberts opined
that the appellant’s “right
foot condition was at least as likely as not aggravated beyond its normal
progression by some event
or injury in the service.” Id.
In June 2010, the appellant underwent a compensation and pension
examination of his right
foot. R. at 64-80. The examination report indicates that the examiner
reviewed the appellant’s
claims file and medical records, including Dr. Roberts’s October 2009
statement; took a medical
history from the appellant, including his assertion that he was born with
a right club foot and
sustained an injury to his right foot during basic training; and conducted
a physical examination of
his feet. In conclusion, the examiner stated:
[A]fter a review of medical records, taking a history, performing a
physical
examination and a review of the medical literature[,] the [v]eteran’s pre[]
existing
congenital right club foot is less likely as not permanently aggravated by
in-service
activities, injuries and/or events and is at least as likely as not
permanently
aggravated by his post service activities, injuries, and/or events,
occupation, and the
normal process of aging as there is no evidence of any in-service injury
and/or event
in the [service medical record] to include the evaluation of 9/8/67 to
support any
acutefindings onx[-]rays orphysicalexaminationthatalteredtheNATURALhistory
or progression of his congenital condition. In addition, the [v]eteran did
not seek
care for his pre[]existing congenital right club foot condition for more
than 40 years
after military service.
Id.
Finding the VA examiner’s opinion the most probative evidence of record,
the RO issued a
Supplemental Statement of the Case in July 2010 that continued to deny the
appellant’s claim. R.
at 60-63. The appellant and his wife thereafter testified at an April 2011
Board hearing. R. at 19-29.
The appellant testified that he was born with a right club foot, but
denied anyproblems or limitations
of activity prior to service. R. at 21, 25. The appellant also described a
night exercise during basic
training where he sustained an injury to his foot. R. at 27. He stated
that the doctor sent him back
to his barracks and informed him that he would receive a medical discharge.
R. at 28.
The appellant’s wife testified that she met her husband in August 1965 and
married him in
June 1967. R. at 22. She stated that she did not notice any problems with
his foot before he entered
the military and that he had played baseball and basketball in school,
worked on a farm, driven a
3

tractor, and plowed fields. R. at 23. She testified that the appellant
informed her by telephone that
he injured his foot in service and described her observations of his pain
following service. R. at 23-
24 (stating that the appellant did not complain about his foot before
service, but complained of pain
and required daily rest after service).
On May 31, 2011, the Board issued the decision here on appeal denying VA
disability
compensation benefits for a right club foot. The Board found that the
appellant clearly and
unmistakably entered service with a preexisting foot disorder and that the
evidence clearly and
unmistakably established that his condition was not aggravated by service.
R. at 4. This appeal followed.

II. ANALYSIS
Pursuant to 38 U.S.C. § 1111, “every 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.” Thus, when no preexisting condition
is noted upon entry into
service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d
1089, 1096 (Fed. Cir.
2004). This presumption can only be overcome by clear and unmistakable
evidence that the injury
or disease preexisted service and was not aggravated by service. See 38 U.
S.C. § 1111; Wagner,
supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). ”
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) (quoting
Vanerson v. West,
12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown
to have existed before
acceptance and enrollment to military service, it will be considered to
have been aggravated in
service, unless the Secretary establishes, by clear and unmistakable
evidence, either that there was
no increase in disability during service or that any increase in
disability was due to the “natural
progress” of the preexisting disease or injury. See 38 U.S.C. § 1111;
Wagner, supra; see also Joyce
v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) (“To satisfy the second
requirement for rebutting
the presumption of soundness, the government must rebut a statutory
presumption of aggravation
by showing, by clear and unmistakable evidence, either that (1) there was
no increase in disability
4

during service, or (2) any increase in disability was ‘due to the natural
progression’ of the
condition.”). To be clear, the aggravation prong of the presumption of
soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that “VA may not rest on the notion that the record contains insufficient evidence of aggravation,” and the Secretary’s failure “to produce clear and unmistakable evidence of lack of aggravation” entitles a claimant to a finding of in-service aggravation of the preexisting condition).
Therefore, where evidence to establish a preservice baseline for a
preexisting condition is lacking,
the Secretary may attempt to carry his evidentiary burden with a post[]
service
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 by a limited period of even intense physical training. See 38
C.F.R.
§ 3.303(c). If a physician is able to support such a conclusion with a
suitable medical
explanation, supported byextant medical knowledge and the facts of record,
such an
opinion might constitute or contribute to clear and unmistakable evidence
of lack of
aggravation.
Id. at 243.
TheCourt
reviewsdenovoaBoarddecisionconcerningtheadequacyoftheevidenceoffered
to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396. However,
the U.S. Court of
Appeals for the Federal Circuit has stated that in reviewingthe legal
sufficiencyof rebuttal evidence,
this Court may employ the “arbitrary, capricious, an abuse of discretion,
or otherwise not in
accordance with law” standard of review because it subsumes de novo review
of questions of law.
Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
A. Preexistence Prong of the Presumption of Soundness
In this case, it is undisputed that the appellant’s militaryentrance
documents did not note any
foot disorder and therefore the presumption of soundness applies. R. at 9;
see Wagner, supra. It is
also undisputed that the first prong of the presumption of soundness was
rebutted – that the evidence
clearly and unmistakably established that the appellant’s right club foot
preexisted service. R. at 10;
see also R. at 21, 25 (appellant’s hearing testimonyadmitting that he was
born with a right club foot);
R. at 64-80, 88, 282 (Dr. Roberts’s June 2008 and October 2009 statements,
and the VA examiner’s
June2010report, allindicatingthattheappellant’s right clubfootpreexisted
militaryservice);Harris
5

v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000) (concluding that the
presumption of soundness may
be rebutted by clear and unmistakable evidence consisting of “records made
‘prior to, during, or
subsequent to service’ concerning the inception of the disease”); Doran v.
Brown 6 Vet.App. 283,
286 (1994) (concluding, “as a matter of law, that the presumption of
soundness was rebutted byclear
and unmistakable evidence consisting of [the] appellant’s own admissions
. . . of a preservice
[disability]”). Thus, the remaining issue is whether VA established by
clear and unmistakable
evidence that the appellant’s preexistingfootcondition did not
undergoanincreasein severityduring
service or that any increase was due to the natural progress of the
disease. See Wagner and Hood,
both supra.
B. Aggravation Prong of the Presumption of Soundness
1. The Parties’ Arguments
On appeal, the appellant requests that the Court “grant [VA disability
compensation] for
aggravation.” Informal Brief (Br.) at 2. He asserts that he was “found fit
for full duty with the
condition[,] . . . could not complete training[,] and ha[s] suffered from [
the] date of injury to today.”
Id. The Secretaryconstrues the appellant’s argument as a request for
reversal of the Board’s decision,
but asserts that remand, rather than reversal, is the appropriate remedyin
this case because the Board
provided an inadequate statement of reasons or bases for its evaluation of
the appellant’s lay
evidence. Secretary’s Br. at 5-9. Specifically, the Secretary concedes
that the Board (1) failed to
adequately explain its reasons for finding the appellant and his wife not
competent to opine whether
his preexisting foot disorder was aggravated by service, and (2)
improperlyfound the appellant’s lay
evidence concerning an in-service injury not credible merely because it
was not accompanied by
contemporaneous medical evidence. Id.
2. The Secretary’s Concession of Error and the Appropriate Remedy
The Court will accept the Secretary’s concession of Board error. It is
clear from a review of
the Board’s decision that the Board improperly found the appellant and his
wife not credible
regarding the allegation that he sustained an injury in service solely
because of the “lack of
corroborative evidence in the service treatment records.” See R. at 14;
see also Buchanan v.
Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that “the
Board cannot determine that
6

lay evidence lacks credibility merely because it is unaccompanied by
contemporaneous medical
evidence”). Additionally,the Board failed to explain adequatelywhythe
appellant and his wife were
not competent to testifythat his preexisting foot disorder was aggravated
byservice. See R. at 13-14;
see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (
noting that whether lay
evidence is competent and sufficient in a particular case is a fact issue
to be addressed bythe Board);
Kahana v. Shinseki, 24 Vet.App.428, 435 (2011) (holding that”theBoard’s
categorical rejection and
failure to analyze and weigh the appellant’s lay evidence in accordance
with established precedent
renders its statement of reasons or bases inadequate”).
Notwithstanding the Court’s agreement with the Secretary’s admission of
error, the Court
disagrees with the Secretary’s contention that remand is the appropriate
remedy. Although it is
generally true that remand, not reversal, is the appropriate remedy “where
the Board has incorrectly
applied the law, failed to provide an adequate statement of reasons or
bases for its determinations,
or where the record is otherwise inadequate,” Tucker v. West, 11 Vet.App.
369, 374 (1998), the general rule is not for application in this case. Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity
to develop the record, “the Court’s role is . . . to assess whether the
Secretary has succeeded in carrying his burden.” See Horn, 25 Vet.App. at 243. If, as the Court
concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, “reversal, not remand, is . . . the appropriate
remedy.” Id. (holding that reversal is the appropriate remedy where the
Secretary has failed to carry his burden of proving lack of aggravation).

3. Evaluation of the Secretary’s Evidence
The Board began discussing the evidence pertinent to whether the evidence
showed no
aggravation duringservicebyreviewingtheappellant’s
servicetreatmentrecordsandnotingthatthey
were “negative for objective evidence of anyin-service injuryto the right
foot.” R. at 11. The Board
further noted that the postservice record was negative for any objective
evidence of right foot
problems until 2008 and found that the lack of documentation weighed
heavily against the claim.
See id. The Board then proceeded to review Dr. Roberts’s opinions but
ultimately concluded that
7

his opinions were not probative because they were based on an incomplete
medical history and Dr.
Roberts failed to explain why he changed the degree of probability
expressed in his opinion, i.e.,
noting that the June 2008 statement contained an equivocal conclusion,
whereas the October 2009
statement was more definitive. R. at 11-13. Finally, the Board noted the
June 2010 examiner’s
conclusions and found them to be “the only competent and credible evidence
of record”
demonstrating that the appellant’s right club foot was not aggravated
byhis militaryservice, and that
the record therefore contained clear and unmistakable evidence showing
that the appellant’s
preexisting right club foot was not aggravated by his military service. R.
at 13.
The Board’s analysis is fatally flawed for a number of reasons. First, the
Board improperly
afforded significant weight to the absence of objective evidence of an in-
service injury. As the Court
noted in Previous HitHornNext Hit, “[i]t is the lack of aggravation that the Secretary must
prove, not lack of an injury.”
25 Vet.App. at 239. Second, regardless of whether the appellant submitted
sufficient evidence of
aggravation, ultimately the burden is on the Secretary to prove lack of
aggravation. See id. at 242
(stating that “the veteran has no burden to produce evidence of
aggravation[,] . . . [i]nstead, 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”). In this
case, the only affirmative evidence of record relied on by the Board to
establish lack of aggravation
is the June 2010 VA examiner’s report. See R. at 11-12; see also 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.”). However, a review of the June 2010 examiner’s opinion reveals that the examiner’s opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court’s assessment of the sufficiency of a physician’s report concerning lack of aggravation is “a significant part of what the Court does on de novo review”).
First and foremost, the only rationale provided by the June 2010 VA
examiner to support his conclusion that the appellant’s right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the
service medical records of an injury or event. See R. at 73 (stating that
the appellant’s “right club
8

foot is less likely as not permanently aggravated . . . as there is no
evidence of any in-service injury and/or event in the [service medical record] . . . to support any acute findings on x[-]rays or physical
examination that altered the NATURAL history or progression”). As the
Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it “effects an impermissible burden shift” to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (indicating in the context of evaluating whether the Secretary’s proof is sufficient to rebut the presumption of soundness that “there is no reason that the Court should not follow its caselaw that
… an unexplained conclusory [medical] opinion is entitled to no weight
in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))).
As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination.

Therefore, on de novo review, the Court finds that the Secretary has
failed to carry his burden to prove lack of aggravation by clear and unmistakable evidence.
Accordingly, the Court will reverse the Board’s finding that the
aggravation prong of the presumption of soundness was rebutted. See Horn, 25 Vet.App. at 243-44 ( remand is inappropriate in the face of medical evidence that is plainly insufficient to rebut the presumption of soundness).
The Board is directed to enter a finding that the appellant’s preexisting
right club foot was aggravated
in service. Of course, in orderto obtain disabilitycompensation,
theappellantmust still demonstrate
a nexus between his current disability and the in-service aggravation. See
Shedden v. Principi,
381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (holding that although 38 U.S.C. §
105(a) “establishes a
presumption that the disease or injury incurred during active duty is
service-connected, the veteran
seeking compensation must still show the existence of a present disability
and that there is a casual
relationship between the present disability and the injury, disease, or
aggravation of a preexisting
injury or disease incurred during active duty”). The Court will therefore
remand the case for
development and adjudication of this issue.
In pursuing the matter on remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
9

and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims
remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record,theCourt REVERSES the Board’s May31, 2011, decision that the
presumptionofsoundness
had been rebutted, directs that the finding of in-service aggravation of
the right club foot be entered,
and REMANDS the matter for further development consistent with this
decision.
DATED: October 17, 2012
Copies to:
Jerry L. Yarbrough
VA General Counsel (027)
10

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: