Veteranclaims’s Blog

August 15, 2017

Single Judge Application; Army Regulation (AR)40-501 (2007); Physical Profile “T”;

Excerpt from decision below:

“At that time, his physical profile for category “P,” was recorded as a level “3,” which “signifies that the individual has one or more medical conditions or physical defects that may require significant limitations” and he or she “should receive assignments commensurate with his or her physical capability for military duty.”  Chapter 7, Paragraph (Para.) 3, Army Regulation (AR)Previous Document40Next HitPrevious Hit501Next Hit (2007); R. at 41.  The physical profile also contained a “T” at the end of the line, which indicates that a condition is considered to be temporary, but the report does not later indicate whether that condition was considered to be permanent or temporary.  Chapter 7, Para. 4, AR Previous Hit40Next HitPrevious Hit501Next Hit; R. at 41.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 99-916
CAROLYN J. PATRICK, APPELLANT,
V.
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE,
Chief Judge.
MEMORANDUM DECISION
Note:  Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENE,
Chief Judge
:  Carolyn J. Patrick appeals, through counsel, a May 6, 1999, Board of
Veterans’ Appeals (Board) decision that determined that a March 1986 Board decision denying
her claim for service connection for the cause of her veteran-husband’s death did not contain
clear and unmistakable error (CUE).  Another May 6, 1999, Board decision held that new and
material evidence had not been submitted to reopen her claim for dependency and indemnity
compensation (DIC) benefits.  Mrs. Patrick filed a brief and a reply brief addressing only the
CUE determination.  In addition to urging the Court to adopt a less formidable standard of
review for CUE challenges, she argues, inter alia, that the 1986 Board had improperly applied
the 38 U.S.C. § 1111 presumption of soundness in determining whether the cause of the
veteran’s death was service connected.  Appellant’s (App.) Brief (Br.) at 20-24.  She also argues
that the 1999 Board erred by failing to provide an adequate statement of reasons or bases for its
determination that there was no CUE in the 1986 Board decision.
Id
. at 16-20.  The Secretary
filed a brief seeking affirmance of the Board’s decision concerning CUE.  Because the Board’s
new-and-material evidence determination is not raised on appeal, any appeal as to that
determination is considered abandoned.
See
Ford v. Gober
, 10 Vet.App. 531 (1997);
Bucklinger
v. Brown
, 5 Vet.App. 435, 436 (1993) (holding issues or claims not argued on appeal are
deemed abandoned).
In a single-judge memorandum decision dated August 13, 2002, the Court affirmed the
May 6, 1999, CUE Board decision.  The Court entered judgment in September 2002, and Mrs.
Patrick subsequently sought review in the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit).  On July 2, 2004, the Federal Circuit vacated the decision and remanded the matter to
this Court for further proceedings consistent with its opinion in
Wagner v. Principi
, 370 F.3d
1089 (Fed. Cir. 2004); the Federal Circuit issued its mandate on August 23, 2004.  In
Wagner,
the Federal Circuit held that 38 U.S.C. § 1111 requires that VA, in order to rebut the section
1111 presumption of soundness, must show, by clear and unmistakable evidence, both that a
veteran’s disability existed prior to service
and
that it was not aggravated during service.
Wagner
, 370 F.3d at 1096.
In
a
single-judge
memorandum
decision
dated
February
1,
2006,
the
Court
again
affirmed
the
May
6,
1999,
CUE
Board
decision.
  The
Court
concluded
that
the
Board
in
1986
was
not
required,
in
order
to
rebut
the
presumption
of
soundness,
to
consider
whether
clear
and
unmistakable
evidence
had
been
presented
to
show
that
a
condition
was
not
aggravated
because
the
regulation
in
1986
did
not
contain
the
“and
was
not
aggravated
by
such
service”
language;
the
Court
also
cited
the
Federal
Circuit’s
decision
in
v.
Nicholson
,
to
hold
that
the
presumption-of-soundness
interpretation
articulated
in
Wagner,
supra
,
did
not
have
retroactive
application
in
a
CUE
case.
v.
Nicholson
,
401
F.3d
1296,
1298-99
(2005).
  Judgment
was
entered
in
April
2006,
and
Mrs.
Patrick
again
sought
review
in
the
Federal
Circuit.
  In
a
June
14,
2007,
decision,
the
Federal
Circuit
noted
that
Mrs.
Patrick’s
specific
argument
was
not
based
on
a
regulation,
but
was
that
the
Board
in
1986
had
misapplied
section
1111,
and
stated
that
its
interpretation
of
that
statute,
as
set
forth
in
Wagner
,
“did
not
change
the
law
but
explained
what
[section]
1111
has
always
meant.”
Patrick
v.
Nicholson
,
242
Fed.
Appx.
695,
698,
2007
WL
1725465,
No.
06-7254
(Fed.
Cir.
June
14,
2007).
  The
Federal
Circuit
held, therefore, that “there was no ‘otherwise correct application of a statute’ by the 1986 Board to invoke 38 C.F.R. § 20.1403(e)’s proscription against CUE under this circumstance,”
and
thus
vacated
the
Court’s
February
2006
decision
and
remanded
the
matter
for
further
consideration
of
the
CUE
claim
using
the
correct
standard
articulated
in
Wagner,
supra
.
Id.
The
Federal
Circuit
also
directed
remand
to
the
Board,
if
necessary,
to
determine
whether
the
government
had
rebutted
the
presumption
of
soundness
under
section
1111
by
providing
clear
and
unmistakable
evidence
of
no in-service aggravation of the claimed disability.
Id.
Single-judge
disposition
is
appropriate.
See
Frankel
v.
Derwinski
,
1
Vet.App.
23,
25-26
(1990).
  For
the
reasons
that
follow,
the
May
6,
1999,
CUE
Board
decision
will
be
vacated
and
the
matter
remanded
for
readjudication.
I.  FACTS
This appeal is the subject of a protracted procedural history, and an exhaustive recitation
of the facts is found in the prior decisions of this Court and will not be repeated here.
Accordingly, only the facts relevant to the current disposition will be summarized.  Mrs. Patrick
is the widow of veteran James Patrick, who served honorably in the U.S. Army from August
1958 through May 1959.  Record (R.) at 74, 297.  During his preenlistment medical
examination, he was found to be without conditions that would disqualify him for service.  R. at
23-26.  His physical profile for each category-including category “P”, which pertains to
“physical capacity or stamina”-was recorded as a level “1,” which indicated that he was
medically fit for any military assignment, including, as the examination report stated, airborne
training.  R. at 26;
see McIntosh v. Brown
, 4 Vet.App. 553, 555 (1993).  His service medical
records (SMRs) reveal that in November 1958, in conjunction with being treated for a cold, Mr.
Patrick reported that he had had rheumatic fever with swollen joints at age 16.  R. at 27,
29-32-39.  He was hospitalized for two days and diagnosed as suffering from acute respiratory
disease.  R. at 31.
A January 1959 SMR states that Mr. Patrick suffered intermittent paresthesia in his
anterior chest wall.  R. at 28.  Paresthesia is “a sensation of prickling, tingling, or creeping on the
skin having no objective cause and usually associated with injury or irritation of a sensory nerve
or nerve root.”
WEBSTER’S MEDICAL DESK DICTIONARY
518 (1986) [hereinafter
WEBSTER’S
].  Mr. Patrick was diagnosed in January 1959 as suffering from “anterior chest
syndrome” and was found to have a “cardiac murmur” of undetermined etiology.  R. at 28-41.
At that time, his physical profile for category “P,” was recorded as a level “3,” which “signifies that the individual has one or more medical conditions or physical defects that may require significant limitations” and he or she “should receive assignments commensurate with his or her physical capability for military duty.”  Chapter 7, Paragraph (Para.) 3, Army Regulation (AR)Previous Document40Next HitPrevious Hit501Next Hit (2007); R. at 41.  The physical profile also contained a “T” at the end of the line, which indicates that a condition is considered to be temporary, but the report does not later indicate whether that condition was considered to be permanent or temporary.  Chapter 7, Para. 4, AR Previous Hit40Next HitPrevious Hit501Next Hit; R. at 41.
During a medical evaluation on January 27, 1959, Mr. Patrick claimed he was unaware
that he had a heart murmur until his recent examination.  R. at 43.  He denied any significant
symptomatology, and indicated that he had been robust enough to “play[] ball during school.”
Id.
  He did, however, report that at age 12 he had experienced an illness characterized by
swelling of his face, hands, and legs, and that he had had occurrences of diurnal pedal edema
since that time, but not recently.
Id
.  Diurnal pedal edema is an abnormal excess accumulation
of fluid in the feet occurring during the daytime.
WEBSTER’S
188, 200, 523.  Further, the
examiner contacted Mr. Patrick’s mother, who indicated that he had had a heart murmur “for
some time.”  R. at 42.  The examiner’s impression was rheumatic heart disease, inactive, with
mitral and atrial insufficiency.
Id.
  The examiner also recorded a history of acute
glomerulonephritis (kidney disease).
Id
.;
WEBSTER’S
268, 469.  The results of an
electrocardiogram (EKG) conducted the following day revealed features compatible with early
left-heart strain.  R. at 44, 45.  February 1959 SMRs indicate that a cardiac fluoroscopy revealed
left ventricular enlargement, which was noted as early left-heart strain during his EKG, and that
the findings were compatible with aortic insufficiency.  R. at 46-47.  The examiner noted:  “In
view of [these] findings, I believe p[atien]t should be given EPTS [existed prior to service]
discharge . . . .”  R. at 47.
During Mr. Patrick’s February 1959 “screening examination to determine his medical
condition and fitness for retention on active duty,” he was diagnosed as suffering from
“rheumatic heart disease, inactive, . . . with aortic stenosis and insufficiency; mild congestive
failure, treated. . . . [existed prior to service].”  R. at 50-54.   His physical profile for category
“P” was recorded as a level “4,” which indicates that the “individual has one or more medical
conditions or physical defects of such severity that performance of military duty must be
drastically limited.”  Ch. 7, Para. 3, AR Previous Hit40Next HitPrevious Hit501Next Hit; R. at 49, 54.  The condition was noted to be
“permanent.”  R. at 49.
In April 1959, Mr. Patrick was referred for medical evaluation board proceedings based
on the discovery of his heart murmur.  At the time of the evaluation, he reiterated the
circumstances surrounding his illness at age 12 and reported that medical advice had not been
sought at that time.  R. at 57.  It was noted that while in school
he would become tired and short of breath more readily than his associates [while
playing basketball].  He was not able to make the football team because of
shortness of breath that developed during the practice runs . . . . During that same
period of time, he also noted that he would become short of breath from walking
up a single flight of stairs.  During the course of his basic training . . . he noticed
that his shortness of breath, ready fatiguability, and ankle edema all increased[,]
particularly during those exercises that required any running, long[-]distance
marching[,] or [physical training].
R. at 57.  The examiner remarked that Mr. Patrick was “entirely asymptomatic” at
the time of the examination, and repeated the diagnosis given in February 1959
(“Rheumatic heart disease, inactive,” and “mild congestive failure, treated. . . .
[existed prior to service].”).  R. at 59.  The medical evaluation board
recommended that Mr. Patrick be separated from service; on May 1, 1959, he was
discharged with a notation of a physical disability that existed prior to service.  R.
at 61-62, 74.  His physical profile for category “P” was recorded as a level “4,”
and it was recorded that the condition for which he was being discharged was not
permanently aggravated by service.  R. at 61.
In May 1959, Mr. Patrick filed a claim for service connection for
rheumatic heart disease.  R. at 76-79.  During a June 1959 general VA medical
examination, Mr. Patrick complained of a moderate amount of shortness of breath
after climbing a flight of stairs or while participating in any athletic endeavor.
Id
.
He was diagnosed as having organic heart disease with an etiology of rheumatic
fever and structural changes consisting of healed rheumatic valvulitis of the aortic
and mitral valves, with aortic stenosis and insufficiency, mitral insufficiency, and
cardiac enlargement, manifested by dyspnea.  R. at 86.  A July 1959 regional
office (RO) decision denied service connection for a heart condition; the RO
stated: “Soundness at induction and aggravation of [the] veteran’s heart condition
by service is rebutted by evidence of record, sound and generally accepted
medical principles considered.”  R. at 92-93.  The decision also granted him
service connection for a right inguinal hernia at a noncompensable rate.
Id
.
On January 29, 1985, Mr. Patrick died of “acute myocardial infarction
due to or as a consequence of cardiac arrhythmia due to or as a consequence of
sever[e] congestive heart failure.” R. at 297.  Arteriosclerotic heart disease,
prosthetic mitral valve, and chronic obstructive pulmonary disease were reported
as significant conditions contributing to death.
Id
.  In February 1985, Mrs.
Patrick, the appellant, filed a claim for DIC benefits.  R. at 292-95.  An April
1985 RO decision denied service connection for the cause of Mr. Patrick’s death.
R. at 299.  The RO stated:
Chronic pulmonary disease is not shown in service.  Service connection for
rheumatic heart disease and for cardiovascular, other than rheumatic[,] heart
disease, was denied during [the] veteran’s lifetime, and these decisions were
upheld by the Board . . . . He had no other disability incurred or aggravated in
service which contributed to his death.
Id
.  Mrs. Patrick filed a Notice of Disagreement (NOD) (R. at 301), the RO issued
a Statement of the Case (SOC) (R. at 319-23), and she appealed to the Board (R.
at 350).
On March 14, 1986, the Board denied service connection for the cause of
Mr. Patrick’s death.  R. at 374-83.  In that decision, the Board reviewed all of the
relevant evidence of record and noted that although Mr. Patrick was seen in
service for a pulmonary problem, this represented only an acute and transitory
episode that had resolved without residual disability.  R. at 380.  The Board
acknowledged that Mr. Patrick had had rheumatic heart disease in service, and
that, although this disease was not noted on his service entrance examination, it
was manifested a short time thereafter, and that “data obtained for clinical
purposes during service unequivocally established the preservice existence of the
rheumatic heart disease.”  R. at 381.  Moreover, the Board concluded that
examination of the clinical evidence in its entirety failed to demonstrate that his
rheumatic heart disease underwent an increase in severity during his short period
of active service.
Id
.  The Board also determined that cardiovascular disease was
not present in service, or within one year after his discharge from service, and
that arteriolsclerotic heart disease was first shown many years after service.   R. at
382.  The Board considered the claim under the presumptions of soundness and
aggravation of a preexisting condition.  R. at 381-82.  The Board concluded that
no evidence of a service-connected disability causing or contributing substantially
to Mr. Patrick’s death existed, and, thus, denied service connection for the cause
of his death.
Id
.
In September 1992, Mrs. Patrick contended that there was CUE in the last
final denial of her DIC claim.
Id
.  Following an extensive procedural history, the
Board, on May 6, 1999, issued two decisions, one finding that the March 1986
Board decision, that denied service connection for the cause of Mr. Patrick’s
death, did not contain CUE.  The 1999 Board decision recounted in detail the
veteran’s medical history, both before, during, and after service.  R. at 10-16.  The
Board then found that at the time of the 1986 decision “there was ample evidence
of record, to wit various private and service clinical records, justifying the
Board’s conclusion that the veteran’s rheumatic heart disease did, in fact, preexist
his active service.”  R. at 18.  The Board also found that “based on a review of the
record, there was more than adequate evidence showing that the veteran’s
preexisting heart disorder underwent no permanent increase in severity during his
period of active service.”
Id.
  The 1999 Board concluded that while the veteran
had experienced an increase in symptomatology during service, his April 1959
hospitalization report makes clear that he was asymptomatic upon discharge, and
service Medical Board personnel found that there had been no aggravation of his
preexisting rheumatic heart disease and congestive heart failure.
Id.
II.  APPLICABLE LAW AND ANALYSIS
Section 3.105(a) of title 38, Code of Federal Regulations, provides in
pertinent part:  “Previous determinations which are final and binding . . . will be
accepted as correct in the absence of [CUE].”  38 C.F.R. § 3.105(a) (2007).
Where evidence establishes such error, the prior decision will be reversed or
amended.
See
38 U.S.C. § 5109A;
Cook v. Principi
, 318 F.3d 1334 (Fed. Cir.
2002) (en banc).  For CUE to exist either (1) the correct facts in the record were
not before the adjudicator or (2) the statutory or regulatory provisions extant at
the time were incorrectly applied.
See Damrel v. Brown
, 6 Vet.App. 242, 245
(1994).  In addition, “the error must be ‘undebatable’ and of the sort ‘which, had it
not been made, would have manifestly changed the outcome at the time it was
made.'”
Id
.
(quoting
Russell v. Principi
, 3 Vet.App. 310, 313-14 (1992) (en
banc));
see Bustos v. West
, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly
adopting “manifestly changed the outcome” language of
Russell
,
supra
).  “In
order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must
assert more than a disagreement as to how the facts were weighed or evaluated.”
Russell
, 3 Vet.App. at 313.  That is because, “even where the premise of error is
accepted, if it is not absolutely clear that a different result would have ensued, the
error complained of cannot be, ipso facto, clear and unmistakable.”
Fugo v.
Brown
, 6 Vet.App. Previous Hit40Next Hit, 43-44 (1993).  The Court’s review of a Board decision
concerning CUE is limited to deciding whether the Board’s conclusion was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.”  38 U.S.C. § 7261(a)(3)(A);
see Russell
, 3 Vet.App. at 315.  As part of that
review, the Court reviews de novo whether an applicable law or regulation was
applied.
Joyce v. Nicholson
, 19 Vet.App. 36, 42-43 (2005).
A. Standard of Review
Mrs.
Patrick
contends
that
the
Court’s
“arbitrary
and
capricious”
standard
of
review
of
CUE
challenges
is
incorrect.
  App.
Br.
at
9-16.
  She
argues
that
a
successful
CUE
motion
is
one
that
demonstrates
either
reversible
or
prejudicial
error
and
that,
therefore,
the
Court
should
engage
in
a
two-step
review
process,
initially
examining
the
propriety
of
the
Board’s
CUE
determination,
and
then,
if
necessary, reviewing the allegations of error de novo.
Id
.
In
reviewing
Board
decisions
evaluating
allegations
of
CUE
in
prior
final
decisions,
the
Court
“cannot
conduct
a
plenary
review
of
the
merits
of
the
original
decision.”
Andrews
v.
Principi
,
18
Vet.App.
177,
181
(2004)
(quoting
Archer
v.
Principi
,
3
Vet.App.
433,
437
(1992)).
  This
Court
has
repeatedly
stated
that
the
standard
of
review
of
a
Board’s
determination
on
the
merits
of
a
CUE
claim
is
whether
the
Board
decision
was
“‘arbitrary,
capricious,
an
abuse
of
discretion,
or
otherwise
not
in
accordance
with
law,'”
and
whether
the
decision
is
supported
by
an
adequate
statement
of
reasons
or
bases.
Andrews,
supra
(quoting
38
U.S.C.
§
7261(a)(3)(A));
see
Lane
v.
Principi,
16
Vet.App.
78,
83-84
(2002),
aff’d
,
339
F.3d
1331
(Fed.
Cir.
2003)
(affirming
this
Court’s
longstanding
precedents
regarding
standard
of
review
in
CUE
determinations);
Beyrle
v.
Brown
,
9
Vet.App.
377,
382
(1996);
Eddy
v.
Brown
,
9
Vet.App.
52,
57
(1996);
Russell,
supra
.  Accordingly, Mrs. Patrick’s argument is without merit.
B. 1999 Board Determination that 1986 Board Decision Did Not Contain CUE
Concerning
the
presumption
of
soundness,
the
applicable
statute
in
effect
at the time of the 1986 Board decision, provided:
[E]very
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,
or
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.
§
311
(now
38
U.S.C.
§
1111).
  Whether
or
not
clear
and
unmistakable
evidence
exists
to
rebut
the
presumption
of
aggravation
is
<BOOKMARK/>
a
legal
determination
subject
to
de
novo
review
by
the
Court.
See
Miller
v.
West
,
11
Vet.App.
345,
347-48
(1998);
Kinnaman
v.
Principi
,
4
Vet.App.
20,
27
(1993).
However,
Board
determinations
that
a
preexisting
condition
did
not
increase
in
severity
during
service
are
determinations
of
fact
that
the
Court
reviews
under
the
“clearly
erroneous”
standard
pursuant
to
38
U.S.C.
§
7261(a)(4).
See
Falzone
v.
Brown
,
8
Vet.App.
389,
402
(1995)
(Court
reviews
“Board’s
determination
of
aggravation,
like
other
findings
of
fact,
under
the
‘clearly
erroneous’
standard”);
Doran
v.
Brown
,
6
Vet.App.
283,
286
(1994)
(determination
of
whether
service
aggravated
preexisting
disability
is
“question
of
fact”);
Butts
v.
Brown
,
5
Vet.App.
532,
536-
37
(1993)
(en
banc).
  A
finding
of
material
fact
is
clearly
erroneous
when
the
Court,
after
reviewing
the
entire
evidence,
“‘is
left
with
the
definite
and
firm
conviction
that
a
mistake
has
been
committed.'”
Gilbert
v.
Derwinski
,
1
Vet.App.
49,
52
(1990)
(quoting
United
States
v.
Gypsum
Co.
,
333
364,
395
(1948)).
  When
applying
this
standard,
“‘if
the
[Board’s]
account
of
the
evidence
is
plausible
in
light
of
the
record
viewed
in
its
entirety,
the
[Court]
may
not
reverse
it
even
though
convinced
that
had
it
been
sitting
as
the
trier
of
fact,
it
would
have
weighed
the
evidence
differently.'”
Id.
(quoting
Anderson
v.
City
of
Bessemer
City
,
470
564,
573-74
(1985)).
  The
Court
also
reviews
whether
the
Board’s
decision
is
supported
by
an
adequate
statement
of
reasons
or
bases.
See
38
U.S.C.
§
7104(d)(1);
Russell
,
3
Vet.App.
at
315.
   The
Board
is
required
to
include
in
its
decision
a
written
statement
of
the
reasons
or
bases
for
its
findings
and
conclusions
on
all
material
issues
of
fact
and
law
presented
on
the
record;
that
statement
must
be
adequate
to
enable
an
appellant
to
understand
the
precise
basis
for
the
Board’s
decision,
as
well
as
to
facilitate
informed
review
in
this
Court.
See
38
U.S.C.
§
7104(d)(1);
Allday
v.
Brown
,
7
Vet.App.
517,
527
(1995);
Gilbert
,
1
Vet.App.
at
56-57.
  To
comply
with
this
requirement,
the
Board
must
analyze
the
credibility
and
probative
value
of
the
evidence,
account
for
the
evidence
it
finds
persuasive
or
unpersuasive,
and
provide
the
reasons
for
its
rejection
of
any
material
evidence
favorable
to
the
claimant.
See
Caluza
v.
Brown
,
7
Vet.App.
498,
506
(1995),
aff’d
,
78
F.3d
604
(Fed.
Cir.
1996)
(table);
Gabrielson v. Brown
, 7 Vet.App. 36, 39-Previous Hit40Next Document (1994);
Gilbert, supra
.
In
evaluating
the
1986
Board
decision
for
CUE,
the
1999
Board
concluded
that
there
was
a
sufficient
basis
for
the
1986
Board
to
have
found
that
Mr.
Patrick’s
rheumatic
heart
disease
had
existed
prior
to
service.
  R.
at
18.
Pertinent
to
the
question
of
preexistence,
the
evidence
before
the
1986
Board
consisted
of
the
following:
(1)
Mr.
Patrick’s
SMRs
that
recorded
his
accounts
of
childhood
fatigue,
rheumatic
fever,
and
swollen
joints
(R.
at
27,
29-32,
33-39);
(2)
his
in-service
diagnosis
of
inactive
rheumatic
heart
disease
(R.
at
28-41);
(3)
the
February
1959
Army
examiner’s
recommendation
that
Mr.
Patrick
be
“given
[an]
EPTS
discharge”
(R.
at
47);
(4)
the
April
1959
Army
medical
examiner’s
diagnosis
of
inactive
rheumatic
heart
disease,
which
had
existed
prior
to
service
and
was
then
asymptomatic
(R.
at
59);
(5)
the
Medical
Board’s
determination
that
his
rheumatic
heart
disease
had
“EPTS”
(R.
at
62);
and
(6)
the
conflicting
reports
of
his
family,
friends,
and
physicians
that
Mr.
Patrick
had
been
a
healthy
child
but
had
also
had
a
heart
murmur
and
suffered
from
various
childhood
illnesses,
including
childhood
rheumatic
heart
disease
(R.
at
82,
102-05,
244-46).
  In
light
of
this
evidence,
the
Court
cannot
conclude
that
it
was
arbitrary,
capricious,
an
abuse
of
discretion,
or
otherwise
not
in
accordance
with
law
for
the
Board
to
have
determined
that
there
was
clear
and
unmistakable
evidence
of
preexistence
of
Mr.
Patrick’s
rheumatic
heart
condition
at
the
time
of
the
1986
Board
decision
and
that,
therefore,
the
1986
Board
had
not
erred
in
so
concluding.
See
38
U.S.C.
§§
1111,
7261(a)(3)(A);
Joyce
and
Damrel,
both
supra.
Furthermore,
the
1999
Board
recited
in
detail
Mr.
Patrick’s
medical
history
and
determined
that
the
1986
Board
had
not
erred
because
“there
was
ample
evidence
of
record,
to
wit
various
private
and
service
clinical
records,
justifying
the
Board’s
conclusion
that
the
veteran’s
rheumatic
heart
disease
did,
in
fact,
preexist
his
active
service.”
  R.
at
18;
see
also
Miller
,
11
Vet.App.
at
348
(holding
that
report
by
medical
professional
that
is
not
“bare
conclusion
.
.
.
without
factual
predicate
in
the
record”
can
constitute
clear
and
unmistakable
evidence
rebutting
presumption
of
sound
condition).
  Accordingly,
the
Court
also
holds
that
the
Board’s
determination
in
that
regard
is
supported
by
an
adequate
statement of reasons or bases.  38 U.S.C. § 7104(d)(1);
see Russell
,
supra.
Although
at
the
time
of
the
1986
Board
decision,
section
1111’s
implementing
regulation
did
not
include
the
statutory
“and
was
not
aggravated
by
such
service”
language,
the
Federal
Circuit
has
made
clear
that
its
decision
in
Wagner
governs
the
issue
where
the
appellant
is
challenging
the
correct
legal
standard
to
be
applied
under
section
1111,
even
in
the
CUE
context.
,
401
F.3d
at
1298
(noting
that
the
appeal
in
“does
not
question
again
the
correct
legal
standard
under
section
1111.
Wagner
governs
that
issue.”);
see
also
Patrick,
supra
.
  The
Federal
Circuit’s
interpretation
of
section
1111
in
Wagner
is
an
authoritative
statement
of
what
that
statute
has
meant
since
the
date
of
its
enactment
in
1958.
See
Rivers
v.
Roadway
Express
,
511
298,
312-13
(1994)
(“A
judicial
construction
of
a
statute
is
an
authoritative
statement
of
what
the
statute
meant
before
as
well
as
after
the
decision
of
the
case
giving
rise
to
that
construction.”);
see
also
,
401
F.3d
at
1298-99
(addressing
whether
change
in
regulatory
interpretation
of
statute
had
retroactive
effect
on
CUE
claims,
but
not
addressing
whether
court’s
interpretation
of
section
1111
in
Wagner,
supra
,
had
retroactive
effect
on
CUE
claims).
  Accordingly,
having
correctly
determined
that
there
was
clear
and
unmistakable
evidence
that
Mr.
Patrick’s
rheumatic
heart
disease
preexisted
service,
the
1999
Board
was
then
required
to
consider
whether
the
Board
in
1986
had
been
presented
with
either
clear
and
unmistakable
evidence
that
Mr.
Patrick’s
condition
did
not
increase
in
severity
during
service,
or
clear
and
unmistakable
evidence
that
any
increase
was
“due
to
the
natural
progress
of
the
disease,”
in
order
to
determine
whether
the
presumption
of
soundness
had
been
rebutted.
  38
U.S.C.
§
1111;
see
Joyce
,
19
Vet.App.
at
47.
The
evidence
of
record
shows
that
(1)
Mr.
Patrick
had
a
normal
heart
upon
entry
into
service
(R.
at
25)
and
(2)
the
physical-profile
notations,
in
box
“P”
(physical
capacity
or
stamina)
of
his
entry
and
exit
examination
reports,
show
an
increase
from
level
“1”
upon
entry
into
service,
to
a
level
“3”
during
service,
to
a
level
“4”
at
separation
(
compare
R.
at
26,
41
with
48
with
49,
54).
  The
Board
did
not,
however,
discuss
any
of
this
evidence
of
record
that
supports
a
finding
that
Mr.
Patrick’s
disability
had
worsened
from
the
time
of
entrance
into
service
to
the
time
of
his
discharge
from
service.
  Rather,
the
Board
merely
stated
in
a
conclusory
fashion
that
“based
on
a
review
of
the
record,
there
was
more
than
adequate
evidence
showing
that
the
veteran’s
preexisting
heart
disorder
underwent
no
permanent
increase
in
severity
during
his
period
of
active
service.”
R.
at
18.
  That
determination
by
the
Board
is
not
supported
by
an
adequate
statement
of
reasons
or
bases.
See
38
U.S.C.
§
7104(d)(1);
Allday
and
Gilbert,
both
supra
.
  Accordingly,
the
matter
will
be
remanded
to
the
Board
for
readjudication,
including
an
adequate
explanation
of
whether
the
evidence
before
the
1986
Board
constituted
clear
and
unmistakable
evidence
that
Mr.
Patrick’s
heart condition did
not
increase in severity during service.
III.  CONCLUSION
Upon
consideration
of
the
foregoing
analysis,
the
record
on
appeal,
and
the
parties’
pleadings,
the
May
6,
1999,
Board
decision
is
VACATED
and
the
matter
is
REMANDED
for
readjudication.
DATED: Jan 31 2008
Copies to:
VA
General
Counsel
(027)
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