Veteranclaims’s Blog

April 24, 2014

FedCir. Gilbert v. Shinseki, No. 2013-7056(Decided: April 24, 2014); Presumption of Soundness; Nexus Requirement; Holton, 557 F.3d 1362, 1367 (Fed. Cir. 2009)

Excerpt from decision below:

“As we explained in Holton v. Shinseki, “the presumption of soundness relates to the second element required to establish a right to disability compensation—the showing
GILBERT v. SHINSEKI 5

of in-service incurrence or aggravation of a disease or injury.” 557 F.3d 1362, 1367 (Fed. Cir. 2009). The presumption of soundness does not relate to the nexus requirement.”

====================

United States Court of Appeals for the Federal Circuit
______________________
DANIEL R. GILBERT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7056
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2355, Chief Judge Bruce E.
Kasold.
______________________
Decided: April 24, 2014
______________________
ZACHARY M. STOLZ, Chisholm Chisholm & Kilpatrick,
Ltd., of Providence, Rhode Island, argued for claimantappellant.
With him on the brief was THOMAS R. BENDER.
Of counsel on the brief was CHRISTOPHER J. CLAY, Disabled
American Veterans, of Cold Springs, Kentucky. Of
counsel was ROBERT V. CHISHOLM, Chisholm Chisholm &
Kilpatrick, Ltd., of Providence, Rhode Island.
MARTIN F. HOCKEY, JR., Assistant Director, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC., argued for
respondent-appellee. With him on the brief were STUART
2 GILBERT v. SHINSEKI
F. DELERY, Assistant Attorney General, and JEANNE E.
DAVIDSON, Director. Of counsel on the brief were DAVID J.
BARRANS, Deputy Assistant General Counsel, and BRIAN
D. GRIFFIN, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before NEWMAN, MOORE, and WALLACH, Circuit Judges.
MOORE, Circuit Judge.
Daniel R. Gilbert appeals from the judgment of the
United States Court of Appeals for Veterans Claims
(Veterans Court) affirming the decision by the Board of
Veterans Appeals (Board) to deny Mr. Gilbert service
connection for psychiatric disability. We affirm.
BACKGROUND
Mr. Gilbert served in the Navy. His report of medical
history upon entry into service revealed no psychiatric
defects. After leaving service, Mr. Gilbert was diagnosed
with major depression and required treatment for psychiatric
illness and alcohol abuse and dependence. While in
treatment, Mr. Gilbert acknowledged that he experienced
depressive episodes and suicidal ideation throughout his
life, that he has been abusing drugs and alcohol since he
was a teenager, and that he continued to abuse alcohol
while he served in the Navy.
Mr. Gilbert filed a claim for compensation for psychiatric
disability and other conditions with the Department
of Veterans Affairs (VA). Multiple psychiatric examinations
produced conflicting opinions on whether Mr. Gilbert’s
mental illness was related to service. The VA
denied service connection, and the Board affirmed. The
Board noted that the statutory “[p]resumption of sound
condition” was applicable because no psychiatric condition
was noted upon entry into service. In the Appeal of Gilbert,
No. 08-19 047, slip. op. at 19 (Bd. Vet. App. June 30,
GILBERT v. SHINSEKI 3
2011); see 38 U.S.C. § 1111 (2012). To rebut the presumption,
the government had to provide “clear and unmistakable
evidence demonstrat[ing] that the disease existed
before . . . enrollment and was not aggravated by . . .
service.” 38 U.S.C. § 1111 (emphasis added). Based on
Mr. Gilbert’s acknowledged history of depression and
substance abuse, the Board concluded that the government
proved by clear and unmistakable evidence that Mr.
Gilbert’s psychiatric illness pre-existed enrollment.
Appeal of Gilbert, slip op. at 19. The Board also found,
however, that the government failed to establish that Mr.
Gilbert’s “pre-existing depression was not aggravated by
active service,” and thus did not rebut the presumption of
soundness. Id. at 20. The Board nevertheless denied
service connection because it concluded that Mr. Gilbert
failed to prove that his post-service psychiatric conditions
“were correlated to [his] military experiences.” Id. The
Veterans Court affirmed, concluding that the evidence of
record “did not support a finding of nexus between [Mr.
Gilbert’s] current depression and an injury or disease
incurred or aggravated by service.” Gilbert v. Shinseki, 26
Vet. App. 48, 54 (2012) (per curiam).
Mr. Gilbert appeals. We have jurisdiction under 38
U.S.C. § 7292(a) (2012).

DISCUSSION
Absent constitutional issues, the scope of our review of Veterans Court’s decisions is limited to “the validity of a decision of the [Veterans] Court on a rule of law or a statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” Id. § 7292(a); see id. § 7292(d). We review legal
determinations of the Veterans Court de novo. Buchanan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006).
Mr. Gilbert argues that the Veterans Court’s interpretation of § 1111 was erroneous. He contends that § 1111
4 GILBERT v. SHINSEKI

relieves him from having to prove that his condition manifested in service or demonstrate a nexus between his present psychiatric condition and in-service injury. We disagree with Mr. Gilbert on the second point and therefore affirm the Veterans Court’s decision without reaching
the first point.
To be eligible for disability compensation, a veteran must show “(1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated
during service.” Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). It is undisputed that Mr. Gilbert has a present disability, and has therefore established the first element needed to make out a successful claim for benefits. But Mr. Gilbert has not established the third element. The Board credited the determination  of VA medical examiners that Mr. Gilbert’s “current mental health diagnoses were not directly related to service or worsened or aggravated by service.” Appeal of Gilbert, slip op. at 22. These findings, which we lack jurisdiction to review, disqualify Mr. Gilbert from benefits because they evince a failure of proof of causal relationship or nexus. The presumption of soundness cannot fill this evidentiary gap. Section 1111, which announces the presumption of soundness, states that “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, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” 38 U.S.C. § 1111. As we explained in Holton v. Shinseki, “the presumption of soundness relates to the second element required to establish a right to disability compensation—the showing
GILBERT v. SHINSEKI 5

of in-service incurrence or aggravation of a disease or injury.” 557 F.3d 1362, 1367 (Fed. Cir. 2009). The presumption of soundness does not relate to the nexus requirement. Mr. Gilbert’s attempts to distinguish Holton are unavailing. Mr. Gilbert argues that he, unlike the claimant
in Holton, had an injury that pre-existed service. But Holton makes clear that the presumption of soundness does not relieve the veteran of having to show nexus whether the claim is for an injury first manifested in service or for an aggravation of a preexisting injury. “The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.”Id. (emphasis added). Thus, the presumption of soundness cannot help Mr. Gilbert establish the nexus element of his claim for service connection.
CONCLUSION
We have considered the parties’ remaining arguments and do not find them to be persuasive. We affirm.
AFFIRMED

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: