Veteranclaims’s Blog

February 28, 2018

Single Judge Application; presumption of aggravation; 38 C.F.R. § 3.306(b) (2017); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet.App. 292, 296 (1991);

Excerpt from decision below:

“In this case, the appellant’s disorder clearly worsened during his service and a new symptom (pain) developed. R. at 184, 277, 290, 292. Whether the worsening of symptoms that the appellant experienced is sufficient to establish § 3.306(b) aggravation depends on the proper application of caselaw. This Court and the one above have held that aggravation requires more than a flare-up or transient increase in symptomatology. The disability itself must increase in severity. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet.App.
292, 296 (1991). On remand, the Board should specifically discuss whether the worsening symptoms that the appellant experienced during his service were transient or a temporary flare-up.
If they were not, then he is entitled to the presumption of aggravation.
When the Board conducts that analysis, it should bear in mind that the appellant credibly asserted that he had no pain immediately prior to his active service and that his pain has never returned to its preservice baseline and has continued to grow more severe. The November 2011 examiner supported that assertion by noting that the “course since onset” of the appellant’s disorder was “progressively worse.” R. at 241. The Board brushed this evidence aside in the decision
presently on appeal. It should discuss it in detail on remand.
The Board’s decision contains additional errors that it should address on remand. First, the Board used the phrase “clear and unmistakable” in a manner that was loose to the point of flippancy. “‘Clear and unmistakable evidence,’ . . . has been interpreted to mean evidence that ‘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)). If the Board reaches the second prong of the presumption of aggravation analysis, it should carefully and
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thoughtfully discuss whether the evidence obviously and manifestly shows that the appellant’s disorder did not worsen beyond normal progression during his active service.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3264
BOBBY DULA, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The pro se appellant, Bobby Dula, appeals a February 26, 2015, Board
of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to disability
benefits for a “right knee disability” and a “left knee disability” and remanded his claim for
entitlement to disability benefits for hypertension for additional development. Record (R.) at 2-
15. The issue remanded by the Board is not before the Court and the Court may not review it at
this time. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000).
This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to
38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of
“relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the portion of the
Board’s decision addressing the appellant’s knee disorder claims and it will remand those matters
for further proceedings consistent with this decision.
2
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from December 1992 until
January 1993.1 R. at 2. The physician who performed his service entrance examination noted that
he had “mild” genu varum. R. at 277. In late December 1992, he sought treatment for knee pain.
R. at 287, 290, 292. On December 30, 1992, a medical board diagnosed him with genu varum and
“bilateral anterior knee pain which is symptomatic and interfering with training.” R. at 282. The
medical board recommended “discharge from the service by reason of physical disability which
existed prior to service . . . and has not been aggravated permanently thereby.” Id.
In August 2011, the appellant filed a claim for entitlement to disability benefits for a knee
disorder. R. at 340-57. In November 2011, a VA medical examiner opined that his genu varum
was “not permanently aggravated” by his service. R. at 244. In December 2011, the VA regional
office denied his claims. R. at 233-38.
In April 2014, the Board remanded the appellant’s case for additional development. R. at
124-27. On February 26, 2015, it issued the decision presently under review. R. at 2-15.
II. ANALYSIS
The physician who performed the appellant’s service entrance medical examination clearly
noted that he had genu varum when he entered active service. That fact triggers the so-called
presumption of aggravation. Pursuant to 38 U.S.C. § 1153,
[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
such service, unless there is a specific finding that the increase in disability is due
to the natural progress of the disease.
The Secretary interpreted this provision to mean that “where the preservice disability
underwent an increase in severity during service,” the presumption of aggravation attaches.
38 C.F.R. § 3.306(b) (2017). Once that happens, the presumption may only be overcome, and
benefits denied, when “clear and unmistakable evidence (obvious or manifest)” demonstrates that
“the increase is due to the natural progress of the condition.” Id.
1 Those are the dates of service as determined by the Board. The Board apparently took those dates from
service medical records. See R. at 282. The appellant wrote in his claim that he served from August 1992 until
January 1993, and he underwent a service entrance medical examination in June 1992. R. at 277, 341.
3
In the decision presently on appeal, the Board conflated the two distinct prongs of the
presumption of aggravation analysis. Consequently, its decision is difficult to parse and
understand. Remand is necessary for the Board to apply § 3.306(b) with greater care and explain
its decision in a manner that the Court can effectively review.
The Board will obtain the best results by first making a well-supported finding about
whether the appellant’s service aggravated his disorder. It should ensure that findings concerning
the “natural progress” portion of the analysis do not bleed into its aggravation discussion. If the
Board finds that no aggravation occurred, it need not do anything more. It should proceed to the “natural progress” analysis only if it concludes that aggravation occurred.
The Board’s aggravation analysis will benefit from a tighter application of the appropriate legal authority. In this case, the appellant’s disorder clearly worsened during his service and a new symptom (pain) developed. R. at 184, 277, 290, 292. Whether the worsening of symptoms that the appellant experienced is sufficient to establish § 3.306(b) aggravation depends on the proper application of caselaw. This Court and the one above have held that aggravation requires more than a flare-up or transient increase in symptomatology. The disability itself must increase in severity. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet.App.
292, 296 (1991). On remand, the Board should specifically discuss whether the worsening symptoms that the appellant experienced during his service were transient or a temporary flare-up.
If they were not, then he is entitled to the presumption of aggravation.
When the Board conducts that analysis, it should bear in mind that the appellant credibly asserted that he had no pain immediately prior to his active service and that his pain has never returned to its preservice baseline and has continued to grow more severe. The November 2011 examiner supported that assertion by noting that the “course since onset” of the appellant’s disorder was “progressively worse.” R. at 241. The Board brushed this evidence aside in the decision presently on appeal. It should discuss it in detail on remand.
The Board’s decision contains additional errors that it should address on remand. First, the Board used the phrase “clear and unmistakable” in a manner that was loose to the point of flippancy. “‘Clear and unmistakable evidence,’ . . . has been interpreted to mean evidence that ‘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)). If the Board reaches the second prong of the presumption of aggravation analysis, it should carefully and
4
thoughtfully discuss whether the evidence obviously and manifestly shows that the appellant’s disorder did not worsen beyond normal progression during his active service.
Second, the Board held against the appellant the fact that he “was only in service
approximately one week before being placed on profiles due to knee pain.” R. at 12. The Board did not adequately consider the appellant’s lay assertion that he trained for nearly a month.
Furthermore, a week was sufficient to worsen the appellant’s condition. Although that length of time obviously strikes the Board (and, it seems, the November 2011 examiner) as too short in an intuitive way, there is no legal reason why it is not sufficient to produce a compensable aggravation.
Third, as the Secretary conceded, the Board did not adequately consider the appellant’s private medical records and did not ensure that VA fulfilled its duty to assist him by making certain that all potentially applicable records are placed in his claims file. As the Secretary noted, those medical records contain imagining studies that describe the present state of the appellant’s knee disorder and may help the Board determine how his disorder has progressed.2 Furthermore, that
evidence seems to suggest that the November 2011 examiner based his opinion in part on imaging reports that are now dated.
Fourth, the Board relied on the medical board’s determination that the appellant’s disorder
did not worsen past normal progression during service. The medical board stated that
determination in a conclusory, wholly unsupported fashion. Also, the Court presumes that, had
the medical board’s opinion been adequately explained, there would have been no need to engage
a medical examiner in 2011 to address the exact same question. The Board should reconsider
whether it is prudent to place such great probative weight on the medical board’s findings.
Finally, the Board’s conclusion that the November 2011 examination report is adequate is
clearly erroneous. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (holding that a
medical opinion must “contain not only clear conclusions with supporting data, but also a reasoned
medical explanation connecting the two”); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007)
2 Those imaging studies reveal that the appellant currently has a degenerative disorder in his knees. R. at
108. The appellant’s care providers have also, within the last five years, diagnosed him with patella femoral syndrome.
R. at 110. The appellant seemed to argue and the Secretary seemed to concede that the Board should decide whether
these diagnoses are evidence of the present state of the disorder that the appellant had at the beginning of his active
service or separate disabilities that are potentially related to his active service. The Board should review this matter
and adjudicate all issues that are properly before it. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008); aff’d sub
nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 1999).
5
(holding that a medical opinion is adequate “where it is based upon consideration of the veteran’s
prior medical history and examinations and also describes the disability, if any, in sufficient detail
so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'”) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
The examiner did not discuss the normal progression of the appellant’s disorder. Instead,
he concluded that it was “not permanently aggravated” by active service. R. at 244. The
explanation that the examiner gave for that opinion is a four-sentence recitation of the facts of the
case. The examiner made no effort to explain why those facts are medically noteworthy. Also, as
already noted, the examiner seemed, like the Board, to base his opinion on his intuition that a week
of training was not sufficient to worsen the appellant’s condition.
The examiner’s ultimate opinion does not square with his decision to accept the appellant’s
assertion that his knee pain began during his service and has progressively worsened since.
Further explanation of that apparent discrepancy is needed and a medical opinion that hews more
closely to the applicable standard and includes a full medical analysis is necessary before the Board
has before it evidence sufficient to properly review this case. For these reasons, the Board’s
conclusion that the November 2011 examination report is adequate is clearly erroneous.
The appellant asked the Court to reverse the Board’s decision. Because the Board’s errors
leave many factual questions unresolved, the Court does not have before it the factual basis
necessary to reach a definitive conclusion about the issues that he has raised. See Gutierrez v.
Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy when the only
permissible view of the evidence is contrary to the Board’s decision.”); Tucker v. West, 11 Vet.App.
369, 374 (1998) (remand is appropriate “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.”). Consequently, remand is warranted for the Board to fill the evidentiary
gaps left by its decision and the record.3
The Court need not at this time address any other arguments that the appellant has raised.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow
decision preserves for the appellant an opportunity to argue those claimed errors before the Board
3 The Court expedited this case prior to briefing. If the appellant is satisfied with this decision and decides
not to exercise his right to challenge it, then he should consider filing a motion asking the Court to immediately issue
judgment and mandate so that this case may return to the Board as quickly as possible.
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at the readjudication, and, of course, before this Court in an appeal, should the Board rule against
him [or her]”). On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, and the Board is required to consider any such relevant evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002); 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
the Secretary to provide for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the portion of the Board’s February 26, 2015, decision denying the appellant entitlement to
disability benefits for left and right knee disorders is VACATED and those matters are
REMANDED for further proceedings consistent with this decision.
DATED: February 26, 2018
Copies to:
Bobby Dula
VA General Counsel (027)

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