Veteranclaims’s Blog

May 15, 2013

Single Judge Application; 38 C.F.R. § 3.304(b)(1) (2012); presumption of aggravation; presumption of soundness

Excerpt from decision below:
“On the other hand, the “presumption of aggravation” is a ” 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.” Horn, 25 Vet.App. at 234 (emphasis added); 38 U.S.C.
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§ 1153. “History of preservice existence of conditions recorded at the time of [entrance] examination does not constitute 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) (2012).
The Court finds that the Board clearly erred in its determination that the presumption of aggravation applied because the appellant’s right knee condition was noted on his entrance examination.
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“”Clear and unmistakable evidence means that the evidence ‘cannot be misinterpreted and misunderstood, i.e., it is undebatable[]'” and is “obvious or manifest”; it is an “onerous” standard. Horn, 25 Vet.App. at 234-35; see 38 C.F.R. § 3.304(a).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 12-127
BOBBY LLOYD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

GREENBERG, Judge: The appellant, Bobby Lloyd, appeals through counsel a September 16,
2011, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for
a right knee disability. Record (R.) at 2-14. The appellant argues that the Board clearly erred in
finding that the appellant’s right knee disorder was not aggravated by his service and that he is,
therefore, not entitled to service-connected disability benefits. Appellant’s Brief at 1-7. A single
judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will reverse the Board’s September 2011 decision to the extent that it
determined that the presumption of aggravation and not the presumption of soundness applied and
remand the appellant’s claim for further proceedings consistent with this opinion.
The appellant had 45 days of qualifying service in the U.S. Navy from May 28, 1969, to
July 11, 1969. R. at 659. At a pre-induction examination in October 1968, the appellant was noted
to have had “[r]ecent knee surgery – [h]ealed.” R. at 504. At the time, the appellant reported, among
other things, a history of cramps in his legs; broken bones; and bone, joint, or other deformity, as
well as “recent knee surgery April 1967.” R. at 502, 505. The appellant was not inducted at that
time but was recommended for reevaluation in six months. R. at 504. The examiner made changes
and additions to the same form for reevaluations in April 1969 and May 1969, and found the
appellant with no additional defects and fit for duty. R. at 504.
After approximately five weeks of service, in June 1969, the appellant was seen in the clinic
for a moderate amount of right knee pain and the examiner found a “grossly deranged knee with
extreme medial collateral instability, ant[erior] drawer and patellar derangement.” R. at 506. X-ray
findings included “gross, coarse lateral lig[ament] calcification and calcification in lat[eral] cruciate
ligaments.” R. at 506. The examiner stated his belief that it was a hazard to both the patient and the
Navy to retain him. Id. In July 1969, the appellant appeared before a Medical Board, which noted
that the appellant reported “he was in a motorcycle accident in April 1968 in which he sustained a
fracture of the patella and rupture of the lateral and medial collateral ligaments of his right knee
[and] underwent surgery at the time to repair the ligaments. . . .” R. at 507. The Medical Board
noted that the appellant had continuous episodes of effusion, pain, and weakness of the right knee,
especially with strenuous exercise, post-surgery in civilian life and during Naval training. Id. The
Medical Board recommended that the appellant be discharged from service due to physical disability
and expressly found that “the physical disability was neither incurred in, nor aggravated by, a period
of active military service.” R. at 507-08. In September 2011, the Board denied the appellant’s claim,
finding that because “[r]ecent right knee surgery was noted on service pre-induction examination in
October 1968 . . . , the presumption of soundness does not apply and the [v]eteran must make a case
for in-service aggravation.” R. at 10.
A veteran is presumed to be in sound condition except for defects, infirmities, or disorders
noted when examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)
(2012). “Therefore, when no preexisting medical condition is noted upon entry into service, a
veteran is presumed to have been sound in every respect.” Horn v. Shinseki, 25 Vet.App. 231, 234
(2012); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This statutory provision is
referred to as the “presumption of soundness,” which VA has the burden to rebut by clear and unmistakable evidence by establishing that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111. On the other hand, the “presumption of aggravation” is a ” 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.” Horn, 25 Vet.App. at 234 (emphasis added); 38 U.S.C.
2

§ 1153. “History of preservice existence of conditions recorded at the time of [entrance] examination does not constitute 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) (2012).
The Court finds that the Board clearly erred in its determination that the presumption of aggravation applied because the appellant’s right knee condition was noted on his entrance examination.
The appellant’s entrance examination simply states “[r]ecent knee surgery – [h]ealed.”
R. at 504. This is not a notation of a right knee condition, but rather of a procedure. At most, this
is a recording of a condition that preexisted service but resolved, a factual situation specifically
contemplated by VA regulation. 38 C.F.R. § 3.304(b)(1). As such, it does not nullify the application
of the presumption of soundness, but rather should be “considered together with all other material
evidence in [a] determination[] as to inception.” 38 C.F.R. § 3.304(b)(1). This is, therefore,
evidence to be considered as to whether the condition preexisted service after the presumption of
soundness attaches.
The Court, therefore, reverses the Board’s incorrect application of the presumption of
aggravation and concludes that the presumption of soundness applies instead. See Gutierrez v.
Principi, 19 Vet.App. 1, 10 (2004) (reversal is the appropriate remedy when the Board’s decision is
clearly erroneous because the “only permissible view of the evidence is contrary to the Board’s
decision”). Once the presumption of soundness applies, VA may rebut the presumption of soundness by clear and unmistakable evidence that the appellant’s disability was both preexisting and not aggravated by service. Horn, 25 Vet.App. at 234-35. “Clear and unmistakable evidence means that the evidence ‘cannot be misinterpreted and misunderstood, i.e., it is undebatable[]'” and is “obvious or manifest”; it is an “onerous” standard. Horn, 25 Vet.App. at 234-35; see 38 C.F.R. § 3.304(a).
Although the appellant here will receive the benefit of the presumption of soundness, it does not necessarily follow that an unrebutted presumption of soundness will lead to service connection for the injury. To obtain service connection, the appellant must still demonstrate a current disability and a nexus between his current disability and in-service injury or aggravation. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Dye v. Mansfield, 504 F.3d 1289, 1292–93 (Fed.Cir. 2007). The Court will remand for the Board to properly adjudicate the appellant’s claim by applying the presumption of soundness.
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On remand, the appellant may present, and the Board must consider, any additional evidence
and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534, (2002).
This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410, n., 1 L. Ed. 436 (1792) (“[M]any unfortunate and meritorious [veterans], whom [C]ongress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reasons, and on review of the record, the Court VACATES the
September 2011 Board decision that the appellant was not entitled to service connection for a right knee disability, REVERSES the Board’s determination that the presumption of soundness does not apply, and REMANDS the matter to the Board to properly adjudicate the appellant’s claim with an application of the presumption of soundness.
DATED: May 13, 2013
Copies to:
Tony Arjo, Esq.
VA General Counsel (027)
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