Single Judge Application, Absence of Evidence Not Negative Evidence, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)

Excerpt from decision below: "Moreover, as a general matter, "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant's service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must develop evidence to affirmatively prove that there was no aggravation." ======================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-1607 MarshallHE_10-1607.pdf Search Terms: BUCZYNSKI CreationDate: 09/30/2011 16:36:29 Creator: PrintServer150 ModDate: 10/07/2011 11:00:43 Producer: Corel PDF Engine Version 15.0.0.505 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1607 HARRY E. MARSHALL, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Harry E. Marshall appeals through counsel from a May 5, 2009, Board of Veterans' Appeals (Board) decision that denied service connection for a left shoulder disability and for a cervical spine disability. For the following reasons, the Court will reverse the Board's May 2009 decision with respect to these disabilities and remand the matters for further proceedings with the instruction that a finding of aggravation be entered. The appellant essentially argues that deficiencies in the VA medical examination report on which the Board heavily relied rendered its statement of reasons or bases inadequate. Specifically, he argues that because the examination report was based only on a records review, the examiner did not have the benefit of the appellant's account of the in-service aggravation of his preexisting injuries, a summaryof which was included in a record document submitted after the VA opinion was rendered. He further argues that the VA examination reports merely agreed with the conclusions of an earlier medical examination board (MEB) report and did not supply the examiner's own medical analysis of why his neck and shoulder conditions were not aggravated in service. The appellant had approximately 20 years service in the U.S. Army National Guard before he was called to active duty in late 2001. Although the record contains abundant evidence that he had experienced difficulties with his shoulder and neck prior to reporting for active duty, in November 2001 a private physician stated: "He is cleared for active duty in the military. He should, however, be aware that if he has a flare up of his shoulder he should back down on his activity level as he has been good about doing at work at the present time." Record (R.) at 304. Both the Board and the Secretary agree that a December 2001 medical examination conducted prior to his reporting for active duty noted no physical conditions with respect to either the neck or shoulder.1 On February 14, 2002, however, two days after reporting for active duty at Ft. Stewart, Georgia, a service medical record indicates that he was "non-deployable due to inability to wear rucksack [and] helmet due to cervical radiculopathy and chronic impingement of [the] shoulder." R. at 332. He was referred to the MEB and released from active duty. The MEB report placed an "X" in the "yes" column for "existed prior to entry on active duty" and an " X" in the "no" column for "permanently aggravated by service." Record (R.) at 710. In the decision here on appeal, the Board acknowledged that "at the time of entry, there is a presumption that the Veteran entered in sound health." R. at 20. See 38 U.S.C. § 1111. The Board found, however, that "the probative evidence constitutes clear and unmistakable evidence that a left shoulder and cervical spine injuries . . . existed prior to service entrance." R. at 21. The Board also found that "there is clear and unmistakable evidence demonstrating that the preexisting [shoulder and neck conditions] were not aggravated byservice." R. at 22. The Board therefore concluded that the presumption of soundness had been rebutted and denied service connection for the shoulder and neck conditions. I. ANALYSIS Generally, in order to establish service connection for a present disability, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury The Court notes that induction examinations fail to note well-established preexisting conditions all too frequently, placing VA in a difficult situation of rebutting the presumption of soundness equipped with little contemporaneous evidence. The service departments would do well, at a minimum, to make sure that the examiners at least inquire as to previous medical history and make appropriate notations on the induction examination report. Moreover, the prior arthroscopy should have left multiple, albeit small, scars that should have seeded further inquiry. 1 2 incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of soundness relates to the second requirement–the showing of in-service incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) ( application of presumption satisfies incurrence or aggravation element). A claimant must show that he or she suffered from a disease or injurywhile in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarilyoperates to satisfythe second element without further proof. "[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, and enrollment." 38 U.S.C. § 1111; see also 38 C. F.R. § 3.304(b) (2011). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. Once the presumption of soundness applies, the burden of proof on the second Shedden requirement does not shift back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) ("When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption."). If the Secretary fails to produce clear and unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service aggravation of the preexisting condition. The Secretary mayshow a lack ofaggravation byestablishing,with clearandunmistakableevidence,thattherewas no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. See Wagner, 370 F.3d at 1096. While this language has some commonality with the presumption of aggravation, see 38 U.S.C. § 1153, the common 3 language does not signal that the analysis shifts to the presumption of aggravation once preexistence of the injury or disease has been established. Rather, the analysis proceeds under the aggravation prong of the presumption of soundness. The burden is not on the claimant to show that his disability increased in severity, but, rather, it is on VA to establish by clear and unmistakable evidence that it did not. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet.App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet.App. 228, 232 ( 1991)). If there is clear and unmistakable evidence to show that the veteran's disability was both preexisting and not aggravated by service, then the veteran is not entitled to service- connected benefits. Wagner, 370 F.3d at 1096. Whether the Secretary has rebutted the presumption of sound condition is a matter that the Court reviews de novo. Miller v. West, 11 Vet.App. 345, 347 (1998). The factual determinations underlying the Board's decision, however, are judged under the "clearly erroneous" standard. See Bagby, supra. A. The Preexistence Prong of the Presumption of Soundness The record amply supports the Board's determination that the shoulder and neck conditions preexisted his active duty service. As the Board noted, the record includes evidence that the appellant began experiencing discomfort in his shoulder as early as late 1999. He was diagnosed with "[p]robable tendonitis of the left shoulder" in February 2000. R. at 292. The Board further noted that the appellant underwent surgery in January 2001, consisting of " a left shoulder arthroscopy with bursectomy, subacromial decompression, and an open distal clavicle excision." R. at 14, 312. With respect to the cervical spine condition, the Board noted that an April 10, 2001, magnetic resonance imaging "revealed bulging discs at C6-7." R. at 304. Therefore, the Court discerns no reason to disturb the Board's finding that preexistence of the neck and shoulder conditions had been established by clear and unmistakable evidence. The 4 appellant's principal contention, however, is that training leading up to and after reporting for active duty aggravated those conditions. The appellant also submitted a December 2004 statement in which he attributed the origin of his neck and shoulder conditions to various accidents that occurred during periods of training while he was in the Army National Guard. See R. at 258. The Board stated that these statements were not supported by the record, however, "as the objective medical evaluations showed that the Veteran did not report any injuries and the spine and left shoulder were normal on evaluation." R. at 17. Therefore, the appellant has not shown that it is at least as likely as not that his neck and shoulder conditions occurred during his National Guard service. B. The Aggravation Prong of the Presumption of Soundness The Secretary must also prove, by clear and unmistakable evidence, that the preexisting shoulder and cervical spine disorders were not aggravated during the appellant's active duty service, brief as it was. Wagner, 370 F.3d at 1096. The Board's reasoning was asfollows: "There is no record whatsoever of any reinjury, exacerbation, or other incident regarding his left shoulder or cervical spine. There was no increase in the disability level." R. at 22. The Board's approach to the aggravation issue, as revealed in these statements, is both legally and factually flawed. The appellant's entrance examination made no mention of any difficulties with the shoulder or cervical spine. Furthermore, the private medical report in November 2001 indicated that the shoulder had improved and cleared the appellant for active duty. Less than two months later his preexisting conditions made him ineligible for deployment and required his release from active duty. Finally, the MEB report states as follows: "Currently[the appellant] has constant left shoulder pain anteriorly aggravated by direct pressure, overhead work and the wear[ ing] of a ruck sack." R. at 716. These portions of the record constitute affirmative evidence of aggravation. Regardless, as the Board acknowledged, "[t]he claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of [the presumption of soundness] attaches." R. at 19. As discussed previously, once the presumption of soundness arises, the appellant has no further duty to provide evidence of aggravation; VA must prove lack of aggravation. 5 Moreover, as a general matter, "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." Buczynski v.Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant's service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must develop evidence to affirmatively prove that there was no aggravation. The Secretary and the Board point to three pieces of evidence pertaining to the aggravation question. There was the MEB report containing an "x" indicating no aggravation during service. There was an accompanying report that generally reiterated the medical history of the appellant's difficulties with his shoulder and neck; this evidence pertains to the preexistence prong of the presumption of soundness. There was no explanation of MEB's conclusion of non-aggravation, however, or any evidence pertaining to that issue. There were also two VA examination reports (one each for the shoulder and cervical spine conditions) both dated October 1, 2004. With respect to the shoulder condition, the examiner's total discussion of the aggravation issue was as follows: "On review of the records there is no indication/documentation of aggrivation [ sic] durring [sic] active duty service. I agree with the Medical Board determination." R. at 281. The cervical spine examination report contains a similarly conclusory and nonexpansive opinion on aggravation of that condition. See R. at 283. The Court agrees with the appellant that the examiner's discussion does not constitute the requisite medical explanation. The Court has made clear that such an unexplained conclusory VA opinion is entitled to no weight in a service connection context. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). Neither the VA medical opinions nor the MEB report on which they rely nor the combination of these documents constitutes clear and unmistakable evidence on the facts of this case. The Court does not agree that an "x" marked for "no aggravation" on a form rises to the level of clear and unmistakable evidence of lack of aggravation, especially when the report itself is internally contradictory, containing a statement that the wearing of the rucksack did aggravate the appellant's condition. Insofar as the VA medical opinions relyon the MEB report, theyinvoke the same internal 6 contradictions and add no weight to that report in the absence of any additional medical analysis. The only other reasoning in the VA examination reports asserted an absence of documentation of aggravation in service. This reasoning does not constitute a medical analysis; it is merely an incorrect recitation of facts. Even if the examiner were correct, the Board may not rely on reasoning that improperly shifts the burden of proof on the aggravation prong to the appellant. Therefore, the Court concludes that the Secretaryhas not carried his burden of proving lack of aggravation byclear and unmistakable evidence. Additionally,theSecretarypoints out thatuponreleasefromactiveduty, theappellantagreed "with the [MEB's] findings and recommendation." R. at 712. The Court notes that the only alternative presented on the form in question was to appeal the MEB's findings and recommendation for discharge. Furthermore, the aggravation of the appellant's preexisting conditions is ultimately a medical issue, which he is not competent to assess. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (stating that a layperson can provide an account of symptoms but no a diagnosis that requires medical knowledge). While the appellant's perception at separation whether the condition had been aggravated might constitute some evidence on the symptoms, the statement on the form does not constitute a binding admission on the medical conclusion. The Board asserted that "[t]here was no increase in the disability level." R. at 22. There is no medical evidence in the record, however, to support this assessment. The onlyevidence of record certainly indicates that the conditions worsened during active duty. See R. at 304, 332, 710-16. Whether this worsening constituted an increase in the disability level, as compared to what it was upon reporting for duty is a question that might have been illuminated by further medical evidence. On this record, however, the Court is unable to conclude that VA proved that there was no increase in disability. In sum, the evidence of lack of aggravation does not rise to the level of clear and unmistakable evidence. Therefore, VA has not rebutted both prongs of the presumption of soundness. The Court concludes that it must reverse the Board's finding as to aggravation of the preexisting shoulder and cervical spine conditions and direct that a finding of in-service aggravation be entered for these conditions. 7 It does not necessarily follow, however, that the unrebutted presumption of soundness will lead to service connection for the shoulder and cervical spine conditions. The appellant must still demonstrate a current disability and a nexus between his current disability and the in-service aggravation. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007) (affirming this Court's finding that the presumption of soundness does not eliminate the need to demonstrate a causal connection between a veteran's current condition and his in-service injury). The Court will therefore remand these matters for further factfinding on the current disability and nexus issues. On remand, the appellant will be free to submit additional evidence and argument as to a current disability and nexus with regard to his shoulder and cervical spine conditions and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). II. CONCLUSION Based on consideration of the foregoing, the Court REVERSES the Board's May 5, 2009, determination that the shoulder and cervical spine conditions were not aggravated in service and directs that a finding of aggravation be entered. The Court REMANDS these matters for further factfinding on the issues of a current disability and nexus to the in- service aggravation. DATED: September 30, 2011 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 8