Veteranclaims’s Blog

March 7, 2022

Single Judge Application; An “increase in disability” refers to “an overall worsening of the disability rather than any observable increase in disability, irrespective of temporal duration.” Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). That is, “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient . . . unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991) (discussed and cited with approval in Davis, 276 F.3d at 1346). Simply put, there must be a permanent increase in severity. Ward v. Wilkie, 31 Vet.App. 233, 239 (2019) (considering the rule “settled”);

Designated for electronic publication only
No. 19-4168
Before TOTH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Veterans are presumed to be “in sound condition upon entrance into service,
except as to disorders noted at that time.” Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir.
2004). That presumption applied to veteran Daniel J. Williams because his schizophrenia wasn’t
noted in his file when he entered the Air Force. But because the government overcame the
presumption “by clear and unmistakable evidence” that his “disability was both preexisting and
not aggravated by service,” id. at 1096, the Court affirms the Board’s decision not to grant service
connection for the disorder.
Mr. Williams served from June 1973 to November 1973. Upon enlistment, he denied any
history of mental health treatment, and his entrance examination showed no psychiatric
abnormalities. Three months into his service, however, he was committed to a psychiatric hospital
for several weeks. It was during this treatment that he first informed the Air Force about a 4-month
psychiatric hospitalization prior to service in 1972 after he experienced hallucinations.
During Mr. Williams’s in-service commitment, the chief of the psychiatric service for the
Air Force medical center diagnosed severe, chronic paranoid schizophrenia and noted that there
was “considerable evidence that psychosis existed prior to enlistment” and recommended that Mr.
Williams’s case be reviewed by a medical evaluation board. R. at 596.
In November 1973, a medical evaluation board recommended that Mr. Williams be
discharged based on his chronic psychiatric condition, namely paranoid schizophrenia. The
accompanying report noted that the condition existed prior to service and was not permanently
aggravated by service. R. at 478.
Mr. Williams first claimed service connection for schizophrenia in 1973. VA denied the
claim, concluding that his condition wasn’t aggravated beyond its normal progression during his
service. Mr. Williams did not appeal that decision, and it became final.
In 2012, VA denied his request to reopen the claim, and he appealed to the Board. The
veteran testified before the Board about his psychiatric problems prior to service, including his
hospitalization and the events leading to it. He also described his hospitalization during service
and mentioned that he had gone through roughly 30 subsequent hospitalizations after his discharge
from the Air Force. At the Board’s prompting, the veteran clarified that his contention on appeal
was that he had psychiatric problems prior to service that worsened during service, specifically as
a result of medications administered during his in-service hospitalization. R. at 471.
The Board reopened and remanded his claim, instructing VA to obtain a medical opinion
as to “whether the veteran’s pre-existing schizophrenia clearly and unmistakably . . . was not
aggravated by the veteran’s service.” R. at 445.
In 2019, a VA examiner opined that Mr. Williams’s schizophrenia, “which clearly and
unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its
natural progression by an in-service injury, event, or illness.” R. at 71. The examiner reviewed
medical records from before, during, and after service, including the private treatment records from
Mr. Williams’s 1972 hospitalization. He noted that a majority of diagnosed individuals “manifest
a slow and gradual development with a variety of sequelae,” that “predictors . . . and outcomes are
largely unexplained,” and that “peak age at onset is in the early to mid-20’s for males, which was
consistent with the veteran’s history.” Id. (minor grammatical alterations). He also noted that the
disorder “consists of active phase symptoms and may include periods of prodromal or residual
symptoms.” Id. Specifically in the veteran’s case, the active phase symptoms that precipitated his
in-service hospitalization were an intermittent flare-up and not an overall worsening of the
disorder. And the fact that the condition was well controlled with medication further supported the
conclusion that it wasn’t aggravated by or during service.
As a final consideration, the examiner reviewed the transcripts of the veteran’s Board
hearing. He explained that schizophrenics are often unaware of their disorder, and Mr. Williams
seemed to exhibit this trait when he described to the Board the events leading to his 1972
hospitalization differently than the intake records, which “indicat[ed] a schizophrenic episode with
delusions for 4 months prior to being hospitalized.” Id.
In a June 2019 decision, the Board applied the presumption of soundness. In making that
determination, it found that, although the veteran acknowledged during his testimony that he had
psychiatric problems before entering service, he denied at the time he entered service any history
of mental health treatment and his entrance examination noted no psychiatric abnormalities. The
Board ultimately denied Mr. Williams’s claim for service connection, however, because clear and
unmistakable evidence showed that his schizophrenia preexisted service and was not aggravated
beyond the natural progression of the disorder during his service.
First, the Board found it undebatable that the condition preexisted service. The veteran was
hospitalized from June to September 1972 for schizophrenia and released with a prescription to
treat the disorder. During his subsequent hospitalization in service, he reported the 1972
hospitalization and was again diagnosed with schizophrenia. And the Air Force psychiatrist and
the medical evaluation board both agreed that Mr. Williams’s condition predated service.
The Board also found the evidence clear and unmistakable that his condition was not
aggravated by service. Based on the various findings of the 2019 examiner, described above, the
Board interpreted the medical opinion as characterizing Mr. Williams’s ongoing symptoms,
including multiple subsequent hospitalizations, as a classic presentation of schizophrenia that was
well controlled with medication.
Accordingly, the Board concluded that the presumption of soundness had been successfully
rebutted, and service connection was not warranted because schizophrenia had not arisen while
the veteran was in service, nor had it been aggravated by that service. Mr. Williams appealed.
Establishing service connection generally requires medical or, where competent, lay
evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury,
and (3) a link between the claimed in-service disease or injury and the current disability. Harvey
v. Shulkin, 30 Vet.App. 10, 15 (2018). The presumption of soundness at issue here is a statutory
rule relevant to the second element, the in-service incurrence of an injury or disease. Intended to
prevent VA from attributing in-service medical problems to pre-service causes without an
adequate evidentiary basis, see Gilbert v. Shinseki, 26 Vet.App. 48, 52 (2012), the rule presumes
a veteran to be in sound condition when entering service unless a defect, infirmity, or disorder is
“noted at the time of the examination, acceptance, and enrollment” for service or “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. When the presumption is
unrebutted, it satisfies the second, in-service incurrence element of a service-connection claim. See
Gilbert, 26 Vet.App. at 53.
When the presumption is applicable, the burden falls on VA to rebut with clear and
unmistakable evidence both prongs of the presumption: that an injury or disease manifesting
during service preexisted it and was not aggravated by it. Wagner, 370 F.3d at 1096. Importantly,
“the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden
to produce evidence of aggravation.” Horn v. Shinseki, 25 Vet.App. 231, 238 (2012).
“The Court reviews de novo a Board decision concerning the adequacy of the evidence
offered to rebut the presumption of soundness, while giving deferential treatment to the Board’s
underlying factual findings and determinations of credibility.” Id. at 236. The scope of the Court’s
review “extends beyond the findings of the Board to all the evidence of record.” Id. And the “clear
and unmistakable evidentiary standard . . . does not require the absence of conflicting evidence.”
Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
A. The Veteran’s Schizophrenia Preexisted Service
To rebut the presumption of soundness, the evidence “must lead, clearly and unmistakably,
to the conclusion that the injury or disease existed before the veteran entered the service.” Id. As
mentioned above, this “standard . . . does not require the absence of conflicting evidence.” Id. In
fact, the presumption is “rebuttable even in the face of an entrance examination affirmatively
indicating that the condition in question was tested and found not to exist upon the service
member’s entry into service.” Id.
Clear and unmistakable evidence demonstrates that Mr. Williams’s condition preexisted
service. When he entered service, he denied having any prior psychiatric issues. And his entrance
examination did not note the presence of schizophrenia or any other psychiatric abnormalities.
That’s where the affirmative evidence in his favor ends.
Several facts sit heavily on the other side of the scale. The veteran was hospitalized for
four months for schizophrenia prior to service. While he was committed during service, the Air
Force hospital’s chief of psychiatric services diagnosed him with schizophrenia and stated that
there was considerable evidence that the condition preexisted service. The medical evaluation
board reached the same conclusion. And the 2019 examiner who reviewed the records of Mr.
Williams’s 1972 hospitalization also opined that his schizophrenia existed prior to service. Indeed,
he considered the veteran’s in-service episode a periodic flare-up of the condition.
What’s more, aside from denying prior psychiatric problems on his entrance questionnaire,
the veteran has until now maintained that his condition preexisted service. In fact, he clarified
during his hearing that his preexisting condition was aggravated by medication administered
during service. See R. at 471.1 In the absence of any contention that he did not make such
statements, a veteran’s own admissions can constitute clear and unmistakable evidence that a
disability existed before service. Horn, 25 Vet.App. at 237–38.
The veteran spends considerable energy parsing and independently weighing each piece of
evidence, arguing that none of the facts on its own clearly and unmistakably shows that his
condition preexisted service. Take the chief psychiatrist’s opinion that there was “considerable
evidence” that Mr. Williams’s schizophrenia preexisted service. R. at 596. Or the 2019 examiner’s
allegedly similar comment that the “preponderance” of the medical evidence indicated that Mr.
Williams’s condition began prior to service. R. at 71. Per the veteran, “considerable evidence” and
1 This was the relevant exchange between the Board member and veteran:
Q. So it’s your contention that essentially you had some psychiatric, but then you went into
service basically and it aggravated it based on —
A. Yes, ma’am. Yes, ma’am.
Q. — the (inaudible) and the medication —
A. Yes, ma’am.
Q. — and that basically after you had that psychiatric thing, you had this period where you
went to school and it was okay, and then you went into service and it’s never been better
since then?
A. Yes.
R. at 471.
a “preponderance” of evidence aren’t clear and unmistakable evidence. Nor is the unceremonious
“X” checked in the medical evaluation board’s report, indicating without explaining that his
condition preexisted service.
Yet even conceding that these pieces of evidence fell short on an individual basis, there’s
no law that says that the government’s rebuttal must be based on a single piece of evidence. To the
contrary, the Board must “consider all medically accepted evidence bearing on whether the service
member was suffering from the disease or injury in question prior to induction.” Harris v. West,
203 F.3d 1347, 1350 (Fed. Cir. 2000). As the governing regulation instructs: “History conforming
to accepted medical principles should be given due consideration,” and “all other lay and medical
evidence concerning the inception, development and manifestations of the particular condition will
be taken into full account.” 38 C.F.R. § 3.304(b)(2) (2020). Inherent in the veteran’s approach is
an obvious failure to contest the aggregate weight of the evidence, which included records of a
pre-service hospitalization and diagnosis of schizophrenia. Ignoring the cumulative effect of the
evidence is fatal to his argument.
Taking a different tack, the veteran argues that a medical opinion specifically addressing
whether the condition preexisted service was warranted yet absent from the claim’s file. It’s hard
to square this argument with the record. No fewer than three separate medical authorities (the chief
psychiatrist, the medical board, and the 2019 examiner) weighed in specifically on the question.
And again—it must be reiterated—those medical opinions were in addition to the direct evidence
of a 1972 diagnosis of schizophrenia.
“The clear-and-unmistakable-evidence standard is an onerous one,” but there’s no debate
here. Horn, 25 Vet.App. at 234–35 (quotes omitted). The weight of the record clearly and
unmistakably demonstrates that Mr. Williams’s schizophrenia preexisted service.
B. The Veteran’s Preexisting Condition Wasn’t Aggravated by Service
Although Mr. Williams’s schizophrenia predated service, the presumption of soundness
still applies unless the evidence also clearly and unmistakably shows that his condition wasn’t
aggravated by service. Importantly, the “burden is not on the claimant to show that his disability
increased in severity.” Id. at 235. Instead, VA must “show a lack of aggravation by establishing
that there was no increase in disability during service or that any increase in disability was due to
the natural progress of the preexisting condition.” Wagner, 370 F.3d at 1096 (quotes omitted). In
so doing, it “must rely on affirmative evidence to prove that there was no aggravation.” Horn,
25 Vet.App. at 235. It “may not rest on the notion that the record contains insufficient evidence of
aggravation.” Id.
An “increase in disability” refers to “an overall worsening of the disability rather than any
observable increase in disability, irrespective of temporal duration.” Davis v. Principi, 276 F.3d
1341, 1344 (Fed. Cir. 2002). That is, “temporary or intermittent flare-ups during service of a
preexisting injury or disease are not sufficient . . . unless the underlying condition, as contrasted
to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991) (discussed and cited
with approval in Davis, 276 F.3d at 1346). Simply put, there must be a permanent increase in
severity. Ward v. Wilkie, 31 Vet.App. 233, 239 (2019) (considering the rule “settled”).

The 2019 VA medical examiner’s opinion unequivocally demonstrates that no such
increase was present here. He opined that the veteran’s “active phase symptoms precipitating his
hospitalization” constituted “an intermittent flare-up.” R. at 71. And if that was unclear, he added
that this manifestation was not evidence of “a lasting worsening of the symptoms.” Id.
The examiner’s opinion is affirmative evidence that Mr. Williams’s condition was not
aggravated by service. Horn, 25 Vet.App. at 235. Indeed, as the Board observed, the clear
takeaway from the opinion is that the record of an ongoing ebb and flow of symptoms depicted a
“classic presentation of schizophrenia.” R. at 10.
This was also not the only affirmative evidence. The medical evaluation board weighed in
on the question as well when Mr. Williams was discharged from the Air Force, noting that his
condition was not aggravated by service. It may have been a mere “X” used to check a box, which,
on its own, wouldn’t be enough. See Horn, 25 Vet.App. at 242 (holding that a medical evaluation
board’s bare conclusion that a condition was not aggravated does not qualify as clear and
unmistakable evidence). But its consistency with other medical opinions strengthens the Court’s
overall conclusion: clear and unmistakable evidence exists to show that the veteran’s disability was
both preexisting and not aggravated by service. The Board’s duty to consider the totality of
probative evidence (discussed above) applies equally to the aggravation prong of the presumption.
And for that reason, “the veteran is not entitled to service-connected benefits.” Id. at 235.
The veteran attempts to undermine the examiner’s opinion in two ways. Both fail.
First, using dictionary definitions and Internet sources, he explains that his pre-service
diagnosis (schizophrenia, acute undifferentiated type) differed from his in-service diagnosis
(paranoid schizophrenia). The later diagnosis is worse, he contends, which signals an increase in
disability and undercuts the notion that the evidence clearly and unmistakably shows no
aggravation during service.
De novo review in this context permits an “independent examination of whether the facts
found by the [Board] satisfactorily rebut the presumption of sound condition”; it does not open the
door for the Court to consider extra-record evidence and make factual findings in the first instance.
Crowe v. Brown, 7 Vet.App. 238, 246 (1994); see Kyhn v. Shinseki, 716 F.3d 572, 575–78 (Fed.
Cir. 2013). As a factual matter, the Board drew no distinction between diagnoses or consider one
diagnosis worse than the other. That implicit finding governs unless clearly erroneous. See Horn,
25 Vet.App. at 236 (noting that, in this context, the Court still affords “deferential treatment to the
Board’s underlying factual findings”). And because three separate medical authorities declined to
attribute any significance to the different labels, the Board did not clearly err. Accordingly, the
veteran’s assertions based on new evidence do not upset the balance of the evidence.
Second, the veteran directs the Court to question 5B in the disability questionnaire
completed during the 2019 examination. The question asks whether the “claimed condition, which
clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated
beyond its natural progression by an in-service injury, event, or illness.” R. at 71 (emphasis added).
(Question 5A asks the same thing but in the affirmative.) The veteran finds the question leading
because the italicized segment above requires the examiner to assume that his condition preexisted
The Board has a “responsibility to observe the basic tenets of fair play while gathering
evidence.” Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011). And generally, when the question
put to an examiner suggests the result, it leaves the impression that the Board is not looking for
“evidence to determine the correct outcome, but rather to support a predetermined outcome.” Id.
(quotes omitted).
There’s no sense of that here, though. The Board relied on the 2019 examiner for his
opinion on whether Mr. Williams’s schizophrenia was aggravated by service, and that portion of
the question was open-ended, requiring the doctor to answer the question on his own.
The Court has considered the veteran’s remaining arguments but finds them either
underdeveloped, wholly without merit, or borderline misrepresentative of the record. See, e.g.,
Appellant’s Brief at 21 (arguing that the 2019 examiner did not address whether Mr. Williams’s
schizophrenia worsened during service yet quoting in the same paragraph the examiner’s
conclusion that there was no “lasting worsening”).
Accordingly, the June 4, 2019, Board decision is AFFIRMED.
DATED: September 29, 2020
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)

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