In Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that "the 'factual basis' of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran's disease or injury rather than the symptoms of the veteran's disease or injury," that "a properly diagnosed disease or injury cannot be considered the same factual basis as [another] distinctly diagnosed disease or injury," and that "[i]t follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." As a result, the appellant's claims for service connection for depression and anxiety are separate claims from his claim to reopen his denied claim for entitlement to service connection for PTSD, as his anxiety and depression are distinctly and properly diagnosed diseases. See id.; cf. Clemons v. Shinseki, 23 Vet.App.
1, 7-8 (2009).
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3210
JOHN A. MATICH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, John A. Matich, through counsel, appeals an August 11, 2009, Board of Veterans' Appeals (Board) decision that denied a reopening of his claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3. The appellant does not present any argument concerning the actual denial of his request to have his PTSD claim reopened. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely; however, the Court does not have jurisdiction over the issues raised by the appellant pursuant to 38 U.S.C. §§ 7252(a) and 7266. Accordingly, for the reasons that follow, the Court will dismiss the appellant's appeal.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from January
1966 until December 1967. R. at 562. In May 1994, VA issued a rating decision that "denied reconsideration of service-connection for [a] nervous condition now claimed as post-traumatic stress disorder." R. at 842-43. At the time, VA denied service connection because the appellant did not have a PTSD diagnosis. R. at 848-51.
The appellant failed to submit a timely Notice of Disagreement (NOD) and the rating decision became final. R. at 767, 826-28. The appellant later attempted to reopen his PTSD claim; however, the Huntington, West Virginia, regional office (RO) denied a reopening because it found that the
appellant had not submitted new and material evidence. R. at 1146-48. The RO reasoned in part
that the medical evidence submitted by the appellant still did not contain a PTSD diagnosis. Id. The
appellant submitted an NOD; however, it appears that he never submitted a Substantive Appeal as
to that decision. R. at 541-44, 549.
In December 2005, the appellant once again attempted to reopen his claim for entitlement to PTSD. R. at 396. The record developed in the course of the appellant's attempt to reopen his PTSD claim included medical records showing a diagnosis of a depressive condition and a possible diagnosis of an anxiety disorder. R. at 71, 225, 230, 235, 242, 268, 357.
The Cleveland, Ohio, RO found that the appellant had still not submitted new and material evidence.
R. at 260-64. The RO noted that the evidence submitted by the appellant did not contain a PTSD
diagnosis. R. at 261. The appellant filed a timely NOD and Substantive Appeal. R. at 246, 175. In
the Board decision on appeal, the Board denied a reopening of the appellant's PTSD claim,
finding that the appellant had not submitted new and material evidence and that the record still
contained no evidence of a PTSD diagnosis. 11-12.
II. ANALYSIS
In his brief, the appellant does not challenge any of the Board's findings concerning his claim for entitlement to a reopening of his service-connection claim for PTSD. Appellant's Brief (Br.) at
1-16. Instead, the appellant argues that the Board erred by: (1) ignoring favorable evidence that
establishes that he suffers from companion diagnosed depression and anxiety; (2) failing to remand the companion depression and anxiety conditions for appropriate development and adjudication; and (3) failing to provide an adequate statement of reasons or bases for not addressing the aforementioned diagnoses. Appellant's Br. at 7-12. The Secretary counters that the Court does not have jurisdiction over the issues raised by the appellant. Secretary's Br. at 7-11. After reviewing the pleadings and record in this case, the Court agrees that the appellant raises issues over which it cannot exercise jurisdiction.
2
In Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that "the 'factual basis' of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran's disease or injury rather than the symptoms of the veteran's disease or injury," that "a properly diagnosed disease or injury cannot be considered the same factual basis as [another] distinctly diagnosed disease or injury," and that "[i]t follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." As a result, the appellant's claims for service connection for depression and anxiety are separate claims from his claim to reopen his denied claim for entitlement to service connection for PTSD, as his anxiety and depression are distinctly and properly diagnosed diseases. See id.; cf. Clemons v. Shinseki, 23 Vet.App.
1, 7-8 (2009). As there is no final Board decision concerning these new claims, the Court lacks
jurisdiction to consider them. See 38 U.S.C. §§ 7252(a), 7266(a); Jarrell v. Nicholson, 20 Vet.
App. 326, 330-32 (2006) (en_banc).
To be clear, the Court is not holding that these new claims have never been raised. In fact,
these claims may be pending below based upon the submissions of the appellant. However, Boggs
is factually on point and controlling in this case. Supra. The prior final decisions considering the
appellant's mental condition as PTSD must be considered as a separate claim from any new
diagnoses. Id. Accordingly, the Court lacks jurisdiction to consider such claims until presented with a properly appealed Board decision on those claims.1 See Jarrell, 20 Vet.App. at 330-32 (2006).
In this regard, the Court notes that the question of when such claims were
first raised may be considered when, and if, it ever becomes contested and appealed.
21_Vet.App. 232, 254 (2007). See Ingram v. Nicholson,
1. The Court notes that it cannot assume from the silence in the current
Board decision that a new claim under the alternative diagnoses has not been adjudicated. It is entirely possible that such a claim has been recognized by VA and may have been adjudicated in a separate proceeding. See Fagre v. Peake, 22 Vet.App. 188, 191 n. 4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a
veteran”).
3
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the appellant's case is DISMISSED for lack of jurisdiction.
DATED: March 16, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
4
Monday, March 21, 2011
Single Judge Application, Presumption of Soundness, CFR 3.63, Clear and Unmistakable Evidence
Excerpt from decision below:
"In the decision on appeal, the Board cited the applicable statutory and
regulatory provisions extant at the time of the 1957 RO decision concerning the presumption of soundness. R. at 26, citing 38 C.F.R. § 3.63 (1956). The Board noted:
[I]njury or disease, apart from misconduct disease, noted prior to service
or shown by clear and unmistakable evidence, including medical facts and principles,
to have had inception prior to enlistment will be conceded to have been aggravated
where such disability underwent an increase in severity during service unless
such increase in severity was shown by clear and unmistakable evidence, including
medical facts and principles, to have been due to the natural progress of the disease. Id.; see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (
holding that, since the presumption of soundness was first included in a 1924 statute, "the burden . . . [has] fall[en] on the government to rebut the presumption of soundness by clear and unmistakable evidence that the
veteran's disability was both preexisting and not aggravated by service")."
----------------------------------------------------
"The Secretary concedes that it should be presumed that the appellant's condition, which increased during service, was aggravated by such service, unless such presumption is rebutted by clear and unmistakable evidence that the increase was the natural progression of the disease. Secretary's Br. at 20.
The RO's July 1957 rating decision concluded that the appellant's in-service symptoms were due to the normal progression of his condition and that there was no aggravation. R. at 620. This determination was based on a November 30, 1956, discharge evaluation, wherein it was noted that the appellant's "condition is due to congenital osteogenic defect," and that his "present condition and symptoms can be considered due to the normal progress of his disease and there is nothing present to indicate service aggravation." R. at 647. The Secretary argues that the foregoing discharge evaluation "provides distinct and unambiguous evidence that the cyst on Appellant's tibia, which grew during service, was due to the natural progression of his condition." Secretary's Br. at 21.
The appellant argues that the medical record does not rise to the level of clear and unmistakable evidence. Appellant's Br. at 7.
Review of the Board's decision reflects that the Board did not specifically determine whether the medical record constitutes clear and unmistakable evidence. The failure to discuss this issue warrants remand in order for the Board to provide adequate reasons or bases for its decision."
=========================================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0434
EFRAIN RODRIGUEZ-MERLO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY, Judge: The appellant appeals from the October 16, 2008, decision
of the
Board of Veterans' Appeals (Board) that reopened and denied entitlement to
service connection for a left tibia disability, claimed as a left ankle fracture, and denied service connection for a lumbar herniated disc status post laminectomy secondary to a left ankle disability. The Board also determined that there was no clear and unmistakable error (CUE) in a July 22, 1957, rating decision that denied service connection for a congenital osteogenic defect of the left tibia and did not consider a post-operative scar of the left tibia. Single-judge disposition is
appropriate when the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the October
2008 Board's decision and remand the matter on appeal.
I. FACTS
The appellant served on active duty from November 1954 to December 1956.
Record (R.)
543, 562. On the appellant's August 1954 pre-induction examination, it was
noted that he had a cyst
removed from his right thigh. R. at 702-703. In March 1955, a benign tumor
was found on the
appellant's left ankle. R. at 698-700. In November 1956, the appellant
underwent surgeryto remove
the tumor on his left ankle. R. at 664. A discharge report included the
appellant's report of pain in
the distal aspect of the left leg for a few months. R. 648. That report
also noted that pain had been
aggravated by prolonged or strenuous use; the physician that prepared the
report also indicated that
the condition was a congenital osteogenic defect, that the symptoms would
be considered due to the
natural progress of the disease, and that there was nothing in service to
indicate aggravation. R. 647-
48.
In January 1957, the appellant filed a claim for service connection for a
left ankle condition.
R. 629-32. In May 1957, the appellant underwent a VA examination. R. 622.
The examiner noted
a reported history of an Previous DocumentinjuryNext Hit to the left ankle in service. Id. The
examiner also noted that the
claims file was not available and diagnosed Previous HitinjuryNext Hit and surgery, extent and
nature unknown due to
the unavailability of the claims file. Id. X-ray examination revealed "
deformity of the distal end of
fibula apparently residual of previous trauma." R. 621. In July 1957, the
regional office (RO)
denied service connection for a left leg condition, finding that the
appellant had a congenital
osteogenic defect on the left tibia of multiple osteochondroma and that
the symptomatology in
service was considered the normal progress of a congenital disease. R. 620.
In November 1991, Mr. Rodriguez filed a claim for compensation for
disorders that included
an ankle disorder and a back disorder. R. 536-39. In May 2001, the RO
issued a rating decision
denying service connection for osteochondroma because new and material
evidence had not been
submitted.
R. 487-89.
In December 2003, the RO again denied service connection for
osteochondroma of the left tibia because new and material evidence had not
been submitted. R. 466-
67. The appellant appealed the RO's decision. R. 406-07, 443-44.
In December 2004, Mr. Rodriguez filed a statement wherein he asserted that
his ankle and
back disorders were service related. R. 335-36. In February2005, the RO
issued a decision denying
service connection for lumbar herniated disc at vertebrae L5-S1, claimed
as secondary to the left
ankle, and denying service connection for osteochondroma. R. 367-70. The
appellant appealed the
RO's decision. R. at 323-24, 357. In August 2006, the RO issued a rating
decision wherein it
determined that CUE was not present in the 1957 rating decision. R. 300-03.
The appellant
perfected an appeal of the RO's decision. R. 274, 296. On October 16, 2008,
the Board issued the
decision here on appeal. (R. 3-28). This appeal followed.
2
II. ANALYSIS
A. Left Tibia Disability
Upon entering service, an individual will be presumed sound, "except as to
defects,
infirmities, ordisordersnotedat[entry],
orwhereclearandunmistakableevidencedemonstratesthat
the Previous HitinjuryNext Hit or disease existed before [service] and was not aggravated by
such service." 38 U.S.C.
§§ 1111, 1132; 38 C.F.R. § 3.304(b) (2010). "Clear and unmistakable
evidence," as used in the
governing statutes, has been interpreted to mean evidence that "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)).
The onlyprerequisite for the application of the presumption of soundness
is that the veteran's
entryexamination be clear of anynoted diseases or disabilities. Quirin v.
Shinseki, 22 Vet.App. 390,
396 (2009). The presumption of soundness applies to congenital diseases
that arenot noted at entry.
Monroe v. Brown, 4 Vet.App. 513, 515 (1993). "The presumption of soundness
does not, however,
apply to congenital defects, because such defects 'are not diseases or
injuries' within the meaning of
38 U.S.C. §§ 1110 and 1111." Quirin, 22 Vet.App. at 397; see 38 C.F.R. §
3.303(c) (2009); see also
Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that
the presumption of
soundness does not apply to congenital defects).
The appellant argues that the Court should reverse the Board's denial of
service connection
for a left tibia disability, osteochondroma of the left tibia post-
operative, because clear and
unmistakable evidence has not been presented to rebut the presumption of
sound condition.
Appellant's Brief (Br.) at 5. He points out that the Board's analysis does
not make a distinction
between whether his left ankle condition is a congenital disease or defect.
Id. at 8. Alternatively,
the appellant argues that the Board provided inadequate reasons or bases
for its decision. Id. at 10-
11. The Secretary concedes that the Board's analysis as to the appellant's
claim for service
connection for his congenital left ankle condition was inadequate, because
the Board did not
sufficiently analyze whether his congenital ankle condition was a defect
or a disease. Secretary's Br.
at 10. The Secretary notes that such a finding is necessary to determine
if the appellant is due the
presumption of soundness for his congenital ankle condition. Id.
3
To the extent that the appellant argues for reversal, reversal is the
appropriate remedy when
the only permissible view of the evidence is contrary to the Board's
decision. See Gutierrez v.
Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (
1996). Generally, where
the Board has incorrectlyapplied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate,
remand is the appropriate
remedy. See Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that
remand is appropriate
when "the Court finds that the Board decision is defective in its reasons
or bases thereby preventing
proper review by the Court"); Tucker v. West, 11 Vet.App. 369, 374 (1998).
Remand is the
appropriate remedy here to allow the Board to make a determination
supported by an adequate
statement of reasons or bases.
B. Lumbar Herniated Disc
The appellant asserts that he is entitled to service connection for a
lumbar herniated disc
status post laminectomy secondary to a left ankle disability. This claim
is wholly dependent on a
final decision below with regard to the appellant's entitlement to service
connection for a left ankle
disability. Accordingly, any decision as to secondary service connection
for a hip disability is
inextricably intertwined with a final decision by the Board as to whether
the appellant is entitled to
service connection for a left ankle condition. Thus, remand of this issue
also is warranted. See Smith
v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (stating that for judicial
economy and avoidance of
piecemeal litigation, when "two claims are sufficiently intertwined . . .
they should be considered
together"); Gurley v. Nicholson, 20 Vet.App. 573, 575 n.1 (2007) (
suggesting that to serve the
interest of judicial economy remand is appropriate when two issues are
inextricably intertwined);
see also Tucker, supra.
C. CUE in a July 22, 1957, Rating Decision
The appellant argues that the Court should reverse the Board's
determination that clear and
unmistakable error was not present in a July 1957 rating decision that
denied service connection for
a disorder of the left tibia and for a post-operative scar because clear
and unmistakable evidence was
not present for a finding that an increase in disability was part of the
natural progress of the disease.
See Appellant's Br. at 5. The Secretary counters that the Court should
affirm the Board's
determination that no CUE exists in the 1957 RO decision. Secretary's Br.
at 16-24.
4
A prior final Board decision must be reversed or revised when the
evidence establishes clear
and unmistakable error. See38 U.S.C. § 7111(a). CUE is established when
the following conditions
have been met: First, either (1) the correct facts contained in, or
constructively contained in, the
record were not before the adjudicator, or (2) the statutoryor
regulatoryprovisions extant at the time
were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1995).
Second, the alleged
error must be "undebatable," not merely a "disagreement as to how the
facts were weighed or
evaluated." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc).
Finally, the error must
have "manifestly changed the outcome" of the prior decision. Russell, 3
Vet.App. at 313-14; see
Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly
adopting the "manifestly
changed" outcome language in Russell, supra). The Court's review of a
Board decision regarding
an allegation of CUE in a prior decision is limited to whether the Board's
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. 38 U.S.
C. §§ 7261(a)(3)(A),
7104(d)(1); see also Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en
banc); Allday v. Brown,
7 Vet.App. 517, 527 (1995). As part of that review, however, the Court
reviews de novo all questions of law and whether an applicable law or regulation was applied. See Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005).
In the decision on appeal, the Board cited the applicable statutory and
regulatory provisions extant at the time of the 1957 RO decision concerning the presumption of soundness. R. at 26, citing 38 C.F.R. § 3.63 (1956). The Board noted:
[I]njury or disease, apart from misconduct disease, noted prior to service
or shown by clear and unmistakable evidence, including medical facts and principles,
to have had inception prior to enlistment will be conceded to have been aggravated
where such disability underwent an increase in severity during service unless
such increase in severity was shown by clear and unmistakable evidence, including
medical facts and principles, to have been due to the natural progress of the disease. Id.; see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (
holding that, since the presumption of soundness was first included in a 1924 statute, "the burden . . . [has] fall[en] on the government to rebut the presumption of soundness by clear and unmistakable evidence that the
veteran's disability was both preexisting and not aggravated by service").
As to rebutting the
5
presumption of aggravation then extant, "a pre-existing injury or disease
will be considered to have
been aggravated by active military or naval service where there is an
increase in disability during
active service, unless there is a specific finding that the increase in
disability is due to the natural
progress of the disease." 38 C.F.R. § 3.63(k) (1956).
The evidence of record shows that the appellant's condition progressed
while in service. On
March 19, 1955, a benign tumor on his left ankle was found (R. at 698-700),
which was later
determined to be due to a congenital osteogenic condition (R. at 647). On
November 2, 1956, the appellant had the cyst excised from his left ankle. R. at 663-64. The Secretary concedes that it should be presumed that the appellant's condition, which increased during service, was aggravated by such service, unless such presumption is rebutted by clear and unmistakable evidence that the
increase was the natural progression of the disease. Secretary's Br. at 20.
The RO's July 1957 rating decision concluded that the appellant's in-service symptoms were due to the normal progression of his condition and that there was no aggravation. R. at 620. This determination was based on a November30, 1956, discharge evaluation, wherein it was noted that the appellant's "condition is due
to congenital osteogenic defect," and that his "present condition and
symptoms can be considered due to the normal progress of his disease and there is nothing present to indicate service aggravation." R. at 647. The Secretary argues that the foregoing discharge evaluation "provides distinct and unambiguous evidence that the cyst on Appellant's tibia, which grew during service, was due to the natural progression of his condition." Secretary's Br. at 21.
The appellant argues that the medical record does not rise to the level of clear and unmistakable evidence. Appellant's Br. at 7.
Review of the Board's decision reflects that the Board did not
specifically determine whether the medical record constitutes clear and unmistakable evidence. The failure to discuss this issue warrants remand in order for the Board to provide adequate reasons or bases for its decision. To the
extent that the appellant argues for reversal, reversal is the appropriate
remedy when the only permissible view of the evidence is contrary to the Board's decision. See Gutierrez, 19 Vet.App. at 10; Johnson, 9 Vet.App. at 10. Remand is the appropriate remedy here to allow the Board to make a determination supported by an adequate statement of reasons or bases.
6
D. Other Contentions of Error
In light of the need to remand the appellant's claims for the Board to
provide an adequate
statement of reasons or bases, his remaining assertions of error are moot.
See Dunn v. West,
11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one
theorymoots the remaining
theories advanced on appeal). On remand, the appellant may present, and
the Board must consider,
any additional evidence and argument in support of the matters remanded.
See Kay v. Principi,16
Vet.App. 529, 534 (2002). These matters are to be provided expeditious
treatment on remand. See
38 U.S.C. § 7112.
III. CONCLUSION
Uponconsideration oftheforegoinganalysis, therecordonappeal,
andtheparties'pleadings,
the October 16, 2008, Board decision is VACATED and the matter is REMANDED
to the Board
for further readjudication consistent with this decision.
DATED: March 17, 2011
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
7
"In the decision on appeal, the Board cited the applicable statutory and
regulatory provisions extant at the time of the 1957 RO decision concerning the presumption of soundness. R. at 26, citing 38 C.F.R. § 3.63 (1956). The Board noted:
[I]njury or disease, apart from misconduct disease, noted prior to service
or shown by clear and unmistakable evidence, including medical facts and principles,
to have had inception prior to enlistment will be conceded to have been aggravated
where such disability underwent an increase in severity during service unless
such increase in severity was shown by clear and unmistakable evidence, including
medical facts and principles, to have been due to the natural progress of the disease. Id.; see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (
holding that, since the presumption of soundness was first included in a 1924 statute, "the burden . . . [has] fall[en] on the government to rebut the presumption of soundness by clear and unmistakable evidence that the
veteran's disability was both preexisting and not aggravated by service")."
----------------------------------------------------
"The Secretary concedes that it should be presumed that the appellant's condition, which increased during service, was aggravated by such service, unless such presumption is rebutted by clear and unmistakable evidence that the increase was the natural progression of the disease. Secretary's Br. at 20.
The RO's July 1957 rating decision concluded that the appellant's in-service symptoms were due to the normal progression of his condition and that there was no aggravation. R. at 620. This determination was based on a November 30, 1956, discharge evaluation, wherein it was noted that the appellant's "condition is due to congenital osteogenic defect," and that his "present condition and symptoms can be considered due to the normal progress of his disease and there is nothing present to indicate service aggravation." R. at 647. The Secretary argues that the foregoing discharge evaluation "provides distinct and unambiguous evidence that the cyst on Appellant's tibia, which grew during service, was due to the natural progression of his condition." Secretary's Br. at 21.
The appellant argues that the medical record does not rise to the level of clear and unmistakable evidence. Appellant's Br. at 7.
Review of the Board's decision reflects that the Board did not specifically determine whether the medical record constitutes clear and unmistakable evidence. The failure to discuss this issue warrants remand in order for the Board to provide adequate reasons or bases for its decision."
=========================================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0434
EFRAIN RODRIGUEZ-MERLO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY, Judge: The appellant appeals from the October 16, 2008, decision
of the
Board of Veterans' Appeals (Board) that reopened and denied entitlement to
service connection for a left tibia disability, claimed as a left ankle fracture, and denied service connection for a lumbar herniated disc status post laminectomy secondary to a left ankle disability. The Board also determined that there was no clear and unmistakable error (CUE) in a July 22, 1957, rating decision that denied service connection for a congenital osteogenic defect of the left tibia and did not consider a post-operative scar of the left tibia. Single-judge disposition is
appropriate when the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the October
2008 Board's decision and remand the matter on appeal.
I. FACTS
The appellant served on active duty from November 1954 to December 1956.
Record (R.)
543, 562. On the appellant's August 1954 pre-induction examination, it was
noted that he had a cyst
removed from his right thigh. R. at 702-703. In March 1955, a benign tumor
was found on the
appellant's left ankle. R. at 698-700. In November 1956, the appellant
underwent surgeryto remove
the tumor on his left ankle. R. at 664. A discharge report included the
appellant's report of pain in
the distal aspect of the left leg for a few months. R. 648. That report
also noted that pain had been
aggravated by prolonged or strenuous use; the physician that prepared the
report also indicated that
the condition was a congenital osteogenic defect, that the symptoms would
be considered due to the
natural progress of the disease, and that there was nothing in service to
indicate aggravation. R. 647-
48.
In January 1957, the appellant filed a claim for service connection for a
left ankle condition.
R. 629-32. In May 1957, the appellant underwent a VA examination. R. 622.
The examiner noted
a reported history of an Previous DocumentinjuryNext Hit to the left ankle in service. Id. The
examiner also noted that the
claims file was not available and diagnosed Previous HitinjuryNext Hit and surgery, extent and
nature unknown due to
the unavailability of the claims file. Id. X-ray examination revealed "
deformity of the distal end of
fibula apparently residual of previous trauma." R. 621. In July 1957, the
regional office (RO)
denied service connection for a left leg condition, finding that the
appellant had a congenital
osteogenic defect on the left tibia of multiple osteochondroma and that
the symptomatology in
service was considered the normal progress of a congenital disease. R. 620.
In November 1991, Mr. Rodriguez filed a claim for compensation for
disorders that included
an ankle disorder and a back disorder. R. 536-39. In May 2001, the RO
issued a rating decision
denying service connection for osteochondroma because new and material
evidence had not been
submitted.
R. 487-89.
In December 2003, the RO again denied service connection for
osteochondroma of the left tibia because new and material evidence had not
been submitted. R. 466-
67. The appellant appealed the RO's decision. R. 406-07, 443-44.
In December 2004, Mr. Rodriguez filed a statement wherein he asserted that
his ankle and
back disorders were service related. R. 335-36. In February2005, the RO
issued a decision denying
service connection for lumbar herniated disc at vertebrae L5-S1, claimed
as secondary to the left
ankle, and denying service connection for osteochondroma. R. 367-70. The
appellant appealed the
RO's decision. R. at 323-24, 357. In August 2006, the RO issued a rating
decision wherein it
determined that CUE was not present in the 1957 rating decision. R. 300-03.
The appellant
perfected an appeal of the RO's decision. R. 274, 296. On October 16, 2008,
the Board issued the
decision here on appeal. (R. 3-28). This appeal followed.
2
II. ANALYSIS
A. Left Tibia Disability
Upon entering service, an individual will be presumed sound, "except as to
defects,
infirmities, ordisordersnotedat[entry],
orwhereclearandunmistakableevidencedemonstratesthat
the Previous HitinjuryNext Hit or disease existed before [service] and was not aggravated by
such service." 38 U.S.C.
§§ 1111, 1132; 38 C.F.R. § 3.304(b) (2010). "Clear and unmistakable
evidence," as used in the
governing statutes, has been interpreted to mean evidence that "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)).
The onlyprerequisite for the application of the presumption of soundness
is that the veteran's
entryexamination be clear of anynoted diseases or disabilities. Quirin v.
Shinseki, 22 Vet.App. 390,
396 (2009). The presumption of soundness applies to congenital diseases
that arenot noted at entry.
Monroe v. Brown, 4 Vet.App. 513, 515 (1993). "The presumption of soundness
does not, however,
apply to congenital defects, because such defects 'are not diseases or
injuries' within the meaning of
38 U.S.C. §§ 1110 and 1111." Quirin, 22 Vet.App. at 397; see 38 C.F.R. §
3.303(c) (2009); see also
Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that
the presumption of
soundness does not apply to congenital defects).
The appellant argues that the Court should reverse the Board's denial of
service connection
for a left tibia disability, osteochondroma of the left tibia post-
operative, because clear and
unmistakable evidence has not been presented to rebut the presumption of
sound condition.
Appellant's Brief (Br.) at 5. He points out that the Board's analysis does
not make a distinction
between whether his left ankle condition is a congenital disease or defect.
Id. at 8. Alternatively,
the appellant argues that the Board provided inadequate reasons or bases
for its decision. Id. at 10-
11. The Secretary concedes that the Board's analysis as to the appellant's
claim for service
connection for his congenital left ankle condition was inadequate, because
the Board did not
sufficiently analyze whether his congenital ankle condition was a defect
or a disease. Secretary's Br.
at 10. The Secretary notes that such a finding is necessary to determine
if the appellant is due the
presumption of soundness for his congenital ankle condition. Id.
3
To the extent that the appellant argues for reversal, reversal is the
appropriate remedy when
the only permissible view of the evidence is contrary to the Board's
decision. See Gutierrez v.
Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (
1996). Generally, where
the Board has incorrectlyapplied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate,
remand is the appropriate
remedy. See Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that
remand is appropriate
when "the Court finds that the Board decision is defective in its reasons
or bases thereby preventing
proper review by the Court"); Tucker v. West, 11 Vet.App. 369, 374 (1998).
Remand is the
appropriate remedy here to allow the Board to make a determination
supported by an adequate
statement of reasons or bases.
B. Lumbar Herniated Disc
The appellant asserts that he is entitled to service connection for a
lumbar herniated disc
status post laminectomy secondary to a left ankle disability. This claim
is wholly dependent on a
final decision below with regard to the appellant's entitlement to service
connection for a left ankle
disability. Accordingly, any decision as to secondary service connection
for a hip disability is
inextricably intertwined with a final decision by the Board as to whether
the appellant is entitled to
service connection for a left ankle condition. Thus, remand of this issue
also is warranted. See Smith
v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (stating that for judicial
economy and avoidance of
piecemeal litigation, when "two claims are sufficiently intertwined . . .
they should be considered
together"); Gurley v. Nicholson, 20 Vet.App. 573, 575 n.1 (2007) (
suggesting that to serve the
interest of judicial economy remand is appropriate when two issues are
inextricably intertwined);
see also Tucker, supra.
C. CUE in a July 22, 1957, Rating Decision
The appellant argues that the Court should reverse the Board's
determination that clear and
unmistakable error was not present in a July 1957 rating decision that
denied service connection for
a disorder of the left tibia and for a post-operative scar because clear
and unmistakable evidence was
not present for a finding that an increase in disability was part of the
natural progress of the disease.
See Appellant's Br. at 5. The Secretary counters that the Court should
affirm the Board's
determination that no CUE exists in the 1957 RO decision. Secretary's Br.
at 16-24.
4
A prior final Board decision must be reversed or revised when the
evidence establishes clear
and unmistakable error. See38 U.S.C. § 7111(a). CUE is established when
the following conditions
have been met: First, either (1) the correct facts contained in, or
constructively contained in, the
record were not before the adjudicator, or (2) the statutoryor
regulatoryprovisions extant at the time
were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1995).
Second, the alleged
error must be "undebatable," not merely a "disagreement as to how the
facts were weighed or
evaluated." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc).
Finally, the error must
have "manifestly changed the outcome" of the prior decision. Russell, 3
Vet.App. at 313-14; see
Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly
adopting the "manifestly
changed" outcome language in Russell, supra). The Court's review of a
Board decision regarding
an allegation of CUE in a prior decision is limited to whether the Board's
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. 38 U.S.
C. §§ 7261(a)(3)(A),
7104(d)(1); see also Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en
banc); Allday v. Brown,
7 Vet.App. 517, 527 (1995). As part of that review, however, the Court
reviews de novo all questions of law and whether an applicable law or regulation was applied. See Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005).
In the decision on appeal, the Board cited the applicable statutory and
regulatory provisions extant at the time of the 1957 RO decision concerning the presumption of soundness. R. at 26, citing 38 C.F.R. § 3.63 (1956). The Board noted:
[I]njury or disease, apart from misconduct disease, noted prior to service
or shown by clear and unmistakable evidence, including medical facts and principles,
to have had inception prior to enlistment will be conceded to have been aggravated
where such disability underwent an increase in severity during service unless
such increase in severity was shown by clear and unmistakable evidence, including
medical facts and principles, to have been due to the natural progress of the disease. Id.; see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (
holding that, since the presumption of soundness was first included in a 1924 statute, "the burden . . . [has] fall[en] on the government to rebut the presumption of soundness by clear and unmistakable evidence that the
veteran's disability was both preexisting and not aggravated by service").
As to rebutting the
5
presumption of aggravation then extant, "a pre-existing injury or disease
will be considered to have
been aggravated by active military or naval service where there is an
increase in disability during
active service, unless there is a specific finding that the increase in
disability is due to the natural
progress of the disease." 38 C.F.R. § 3.63(k) (1956).
The evidence of record shows that the appellant's condition progressed
while in service. On
March 19, 1955, a benign tumor on his left ankle was found (R. at 698-700),
which was later
determined to be due to a congenital osteogenic condition (R. at 647). On
November 2, 1956, the appellant had the cyst excised from his left ankle. R. at 663-64. The Secretary concedes that it should be presumed that the appellant's condition, which increased during service, was aggravated by such service, unless such presumption is rebutted by clear and unmistakable evidence that the
increase was the natural progression of the disease. Secretary's Br. at 20.
The RO's July 1957 rating decision concluded that the appellant's in-service symptoms were due to the normal progression of his condition and that there was no aggravation. R. at 620. This determination was based on a November30, 1956, discharge evaluation, wherein it was noted that the appellant's "condition is due
to congenital osteogenic defect," and that his "present condition and
symptoms can be considered due to the normal progress of his disease and there is nothing present to indicate service aggravation." R. at 647. The Secretary argues that the foregoing discharge evaluation "provides distinct and unambiguous evidence that the cyst on Appellant's tibia, which grew during service, was due to the natural progression of his condition." Secretary's Br. at 21.
The appellant argues that the medical record does not rise to the level of clear and unmistakable evidence. Appellant's Br. at 7.
Review of the Board's decision reflects that the Board did not
specifically determine whether the medical record constitutes clear and unmistakable evidence. The failure to discuss this issue warrants remand in order for the Board to provide adequate reasons or bases for its decision. To the
extent that the appellant argues for reversal, reversal is the appropriate
remedy when the only permissible view of the evidence is contrary to the Board's decision. See Gutierrez, 19 Vet.App. at 10; Johnson, 9 Vet.App. at 10. Remand is the appropriate remedy here to allow the Board to make a determination supported by an adequate statement of reasons or bases.
6
D. Other Contentions of Error
In light of the need to remand the appellant's claims for the Board to
provide an adequate
statement of reasons or bases, his remaining assertions of error are moot.
See Dunn v. West,
11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one
theorymoots the remaining
theories advanced on appeal). On remand, the appellant may present, and
the Board must consider,
any additional evidence and argument in support of the matters remanded.
See Kay v. Principi,16
Vet.App. 529, 534 (2002). These matters are to be provided expeditious
treatment on remand. See
38 U.S.C. § 7112.
III. CONCLUSION
Uponconsideration oftheforegoinganalysis, therecordonappeal,
andtheparties'pleadings,
the October 16, 2008, Board decision is VACATED and the matter is REMANDED
to the Board
for further readjudication consistent with this decision.
DATED: March 17, 2011
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
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