Single Judge Application Horn v. Shinseki, No. 10-0853, 2012 WL 2355544 (Vet. App. June 21, 2012)

Excerpts from decision below: "These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification). "Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not 10 follow its caselaw that . . . an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304)). "Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was intermittent aggravation of his left foot disorder, but that there was no permanent damage"). Because the January 2003 and October 2004 opinions are insufficient to meet the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1556 BOBBY L. NEAL, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN,Judge: Theproseappellant,BobbyL.Neal, appeals aJanuary12,2011, Board of Veterans' Appeals (BVA or Board) decision that denied VA disability compensation benefits for a left foot disorder. Record of Proceedings (R.) at 3-37. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Army from August 1966 to June 1968. R. at 1550. At his January 1966 enlistment examination, the appellant denied any prior "foot trouble" and a clinical evaluation indicated that his feet were "normal." R. at 1510-11, 1519. During basic training, the appellant twice sought treatment for "sore ankles." R. at 1502. He was provided ace bandages and instructed for seven days not to run, march, or stand for prolonged periods. Id. His servicemedicalrecords (SMRs) areotherwisesilent for complaints or treatment related to his ankles and feet. R. at 1501-38. At separation, the appellant again denied any " foot trouble" and his feet were evaluated as "normal." R. at 1506-09, 1512-13. In January 1994, the appellant filed a claim for disability compensation for "aggravation to left foot toes that w[ere] cut prior to service." R. at 1491-94. A June 1994 neurological examination noted that the appellant "has some localized problems in the left foot, which has not changed. In association with this he has occasional discomfort in the left foot and has a small area where he doesn't feel things normally." R. at 1456. The examiner stated that the appellant's "sensory examination reveal[ed] no deficits proximally or distally with the exception of a little area mainly on the sole of the left foot[,] which dates back to his childhood problem." Id. In April 1995, the appellant testified that he had trouble with his left foot during basic training. R. at 1420. He explained that he had problems running and related it to an accident that occurred when he was 14 or 15 years old and his foot slipped under a lawn mower cutting three of his toes. Id. The appellant stated that his toes have been stiff since the accident and have not grown, and described his foot as deformed. R, at 1421. In July1999 and April 2000 statements, the appellant requested that the regional office(RO) obtain his treatment records from the VA hospital in Jackson, Mississippi, and adjudicate his claim for a foot condition. R. at 1226, 1256. In June 2000, the RO issued a rating decision denying the appellant's claim. R. at 1220-25. In August 2000, the appellant filed a Notice of Disagreement in which he asserted that his claim for a left foot condition dated back to his "original claim," explaining that he had filed a claim for "aggravation to the left foot, which was an injury before [he] was drafted in 1966." R. at 1201-02. The appellant also indicated that he stated that his "foot was verytender" during his induction examination and that he went on sick call during basic training and in Germany. R. at 1202. After the RO issued a Statement of the Case (R. at 1166-77) that continued to denyhis claim, the appellant submitted a Substantive Appeal in which he asserted that "[i]t is very clear that my foot was injured prior to service and that while in service my foot injury was aggravated even more, due to stress of combat." R. at 959-60; see also R. at 1157. The appellant submitted additional evidence and argument in August 2002, including a July 2002 VA podiatry clinic note indicating that the appellant presented with " a rigid deformity of the second, third, and fourth digits as a result of a severe laceration." R. at 890. The examining 2 podiatrist noted that the "[p]atient was told because of [A]rmy-issued boots in training[,] area has worsen[ed] to the point that the only option is probably surgical fusion of the toes." Id. The podiatrist assessed "[c]ontracted foot, neuroma secondary to trauma" and opined that the appellant "should be service-connected for injury because of training during active duty stage would have resulted [sic] a severe aggravation of this condition." Id. The appellant underwent a compensation and pension examination of his left foot in January 2003. R. at 849-50. The VA examiner recorded the appellant's history of injuring his left foot prior to military service: "At the age of 14 or 15 he got his left foot caught in a lawn mower and sustained a deep laceration of the plantar aspect of the left forefoot and toes." R. at 849. The examiner indicated that the "flexor tendons of the second, third, and fourth toes were severed and not repaired" resulting in a loss of motion and tenderness within the scar. Id. He further recorded the appellant's report that wearing military boots caused pain in his foot and that he sometimes experienced "swelling in the region of the first metatarsophalangeal joint." Id. Following review of the claims file, x-rays of the left foot, and a physical examination, the examiner's impression was "[s]taus post severe laceration, plantar aspect of the left forefoot and toes," "[s] tatus post traumatic arthritis, interphalangeal joints of the second and fourth toes," "[s]tatus post fusion of the interphalangeal joints of third toe," and "[n]euroma, scar of left forefoot." R. at 849. The examiner also provided the following comments: Although the patient had an extensive laceration of the left forefoot, it left him with no deformities which would interfere with wearing of normal shoes. . . . The injury definitely occurred at the age of 14 or 15, prior to his entrance into military service. Military service may at times have caused some temporary aggravation of his symptoms but no long-term problems. The patient has had no injuries to his foot since discharge from the service. In conclusion, I believe that it is more likely than not that the injury sustained at the age of 14, prior to his entry into the service, is the cause of his current left foot condition with low long-term aggravation resulting from his military duty. R. at 849-50. In May 2003, the appellant submitted another opinion by a private physician, who noted the appellant's allegations of significant left foot pain and swelling as a result of wearing military boots 3 in service. R. at 841. Following a physical examination and review of x- rayevidence, the physician noted that the appellant had significant pain with palpation, limited range of motion, diminished sensation, a positive Tinel sign, lateral plantar nervelesion, secondaryto nerve entrapment of the left foot, and post-traumatic arthritis in the joint. Id. The physician opined: This condition is related to service, especially with the military service requirements and conditions at the time, which caused aggravation of the pain and has made the pain into a chronic situation. In conclusion, I believe that this injury is military relatedsecondaryto combatboot wear,especiallywithrunningin the1960's Vietnam era. Id. In a May 2004 decision (R. at 486-94), the Board noted that although the medical evidence "appeared to support the veteran's contentions of in-service aggravation of his left foot disorder, the Board [was] not satisfied that such evidence [was] sufficient for a grant of service connection" based on the 2003 examiner's statement regarding "temporary aggravation" and the fact that the medical reports failed to discuss the lack of foot symptomatology for more than 20 years after service. R. at 488. As a result, the Board remanded the appellant's claim for additional development, including a VA medical examination, "to evaluate the nature, severity, and etiology" of the appellant's foot disorder. R. at 491-92. In October 2004, a VA physician provided an opinion, but no medical examination, addressing whether the appellant's foot condition preexisted service or was aggravated by service. R. at 465. The report indicates that the appellant had been examined in January 2003 and that an additional examination "would not add any further substance or support to the requested opinion seeing this is based upon historical information obtained from review of the claims folder." Id. Regarding preexistence, the examiner noted that "[t]he veteran freely admits that the initial injury to his foot occurred while a teenager from a lawn mower accident." Id. Regarding aggravation, the examiner noted that the January 2003 examiner "stated there was intermittent aggravation of his left foot disorder, but that there was no permanent damage. Other than that, that would occur as a result of the natural process of the disease." Id. Finally, with regard to postservice events or diseases, 4 including aging, that may have contributed to worsening of the left foot disorder, the examiner stated: There is no evidence of record of anyspecific event or disease. However, the natural process of ageing over the 30 years following . . . service has contributed to the increasing symptoms of pain within the left foot. On review of the opinions of the . . . podiatrist of [July 2002 and May2003], it is noted that both have opined that they felt the shoes worn while in service permanently aggravated the condition to the extent that he now has more pain secondary to a neuroma than he would have had he not have had to wear the militaryshoes. There is no objective evidence in the service record of any permanent damage occurring while on active duty. Also, the development of a neuroma, 30 years post exposure to service, intermittent aggravation would not be consistent with the natural process of the disease. It is far more likely than not that the natural process of ageing has lead [to] the development of the neuroma which is now the primary source of the veteran's symptomatology in his left foot. Id. At a February 2005 Board hearing, the appellant testified that the doctors who treated him for his preservice injury to his left foot were deceased and that he did not "know if it would be possible if somebody would have those records." R. at 441-42. Following the hearing, the Board denied the appellant's claim in an April 2005 decision (R. at 418-36), which was subsequently vacated pursuant to a June 2006 joint motion for remand (JMR). See R. at 407-15 (remanding because (1) the Board failed to apply the correct standard when determining that the second prong of the presumption of soundness had been rebutted,and (2) the Board erred when it relied on Maxson v. West, 12 Vet.App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000)). The Board issued another decisionin February2007denyingtheappellant's claim. R. at 366- 83. That decision was also appealed to the Court, and vacated and the matter remanded pursuant to the parties' July 2008 JMR. R. at 316-22 (remanding the case for (1) the Board to obtain a medical examination in compliance with its May 2004 remand order, (2) the examiner to consider all evidence concerning continuity of symptomatology, and (3) the Board to consider whether the appellant is a combat veteran pursuant to 38 U.S.C. § 1154(b)). InJanuary2010,theappellantunderwentacompensation andpensionexamination ofhis left foot. R. at 42-44. The examiner noted that he reviewed the claims file, documented the appellant's 5 reported preservice injury to his left foot, and conducted a physical examination. Id. The examiner also noted the appellant's assertions that (1) during high school he was unable to run or participate in sports as a result of pain associated with running, (2) he sought medical attention during basic training, (3) after discharge "his foot did about like it did [sic] before he went in the military," and (4) he continues to have chronic pain, which varies in severity. R. at 42. The examiner's impression was "[s]tatus post remote trauma of left foot with traumatic arthritis and fusion of the proximal interphalangeal joints of the second, third, and fourth toes," and "[n] euroma of left foot." R. at 43. Regarding preexistence, the examiner opined that "the claimed foot disorder clearly and unmistakably preexisted his active service." R. at 43-44. Regarding aggravation, the examiner stated: I cannot document that the left foot disorder was permanently aggravated or worsened during his period in the military. As previously noted by the examiner from 2003, there was probablyintermittent aggravation of his left foot, but there was no permanent damage. For VA purposes, temporary or intermittent flare ups of a[] preexisting injuryor disease arenot sufficient to beconsideredaggravation in service unless the underlying condition, as contrasted to the symptoms, is worsened. R. at 44. In response to the question whether "the left foot disorder [was] incurred during active service or did it become manifest to a compensable degree within a 1 year period of his discharge," the examiner stated that "it is far more likely than not that his left foot disorder preexisted his entry into the service. I am unable to document that he had a permanent worsening of his left foot condition based upon a review of the record." Id. Finally, with regard to whether the left foot condition is clearly and unmistakably related to any postservice event or disease, including aging, the examiner stated: The left foot disorder is not related to any post[]service event or disease, but again is related to the original injury which he sustained as a teenager and it is again noted that I can find no evidence that his left foot condition was permanently worsened by any incident or occurrence in the military. Id. In the decision here on appeal, the Board denied VA disability compensation benefits for a leftfootdisorderbasedonits findingthattheappellantclearlyand unmistakablyentered servicewith 6 a preexisting foot disorder and the evidence clearly and unmistakably established that his condition did not undergo an increase in severity during service. R. at 5. This appeal followed. II. ANALYSIS A. Presumption of Soundness Pursuant to 38 U.S.C. § 1111, "every 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." Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This presumption can only be overcome by clear and unmistakable evidence that the injury or disease preexisted service and was not aggravated by service. See 38 U. S.C. § 1111; Wagner, supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). " Clear and unmistakable evidence" means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown to have existed before acceptance and enrollment to military service, it will be considered to have been aggravated in service, unless the Secretary establishes, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was due to the "natural progress" of the preexisting disease or injury. See 38 U.S.C. § 1111; Wagner, supra; see also Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) ("To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was 'due to the natural progression' of the condition."). The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396. However, the U.S. Court of Appeals for the Federal Circuit has stated that in reviewing the legal sufficiency of rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not 7 in accordance with law" standard of review because it subsumes de novo review of questions of law. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). It is undisputed thattheappellant's militaryentrancedocumentsdid not noteanyfootdisorder and therefore the presumption of soundness applies. R. at 9; see Wagner, supra. It is also undisputed that the first prong of the presumption of soundness was rebutted – that the evidence clearly and unmistakably established that the appellant's left foot disorder preexisted service. R. at 9. In its decision, the Board noted that the appellant acknowledged that he lacerated his left foot in his early teens and that the various medical opinions of record related the appellant's current foot disorder to his preservice injury. R. at 9-10; see Doran v. Brown 6 Vet. App. 283, 286 (1994) (concluding, "as a matter of law, that the presumption of soundness was rebutted by clear and unmistakable evidence consisting of [the] appellant's own admissions . . . of a preservice [disability]"); see also Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000). The remaining issue is whether the Government established by clear and unmistakable evidence that the appellant's preexisting foot condition did not undergo an increase in severity during service or that any increase was due to the natural progress of the disease. Wagner, supra. On appeal, the appellant argues that he has experienced foot pain since the militaryand notes that two podiatrists have stated that he should be service connected for his foot problem. Appellant's Informal Brief (Br.) at 1-2. The appellant is correct that both the July 2002 and May2003 examiners related the appellant's foot condition to service. However, in addressing the numerous medical opinions of record, the Board found that both favorable opinions were of minimal probative value for various reasons, including that neither examiner provided any supporting rationale for his opinion. R. at 17-18; see Stefl v. Nicholson, 21 Vet.App. 120, 124-25 ( 2007) (holding that the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that " a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Based on a review of the medical opinions and the Board's statement of reasons or bases, the Court cannot say that the Board's determination was clearly erroneous. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible 8 for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous). Nonetheless, in the context of the presumption of soundness, there is no requirement that the claimant submit evidence of aggravation becausetheburdenfalls on the Government to establish no aggravation. Wagner, supra. Relying primarilyon the January2010, October 2004, and January 2003 VA medical opinions, the Board concluded that evidence clearlyand unmistakablyestablished that the appellant's foot disorder was not aggravated by service. R. at 10- 19. Regarding the January 2010 medical opinion, the Board stated that the examiner "unequivocally concluded that the current left foot disorder clearly and unmistakably existed prior to service, and did not undergo any permanent worsening. The examiner acknowledged that there may have been temporary flare ups during service, but unequivocally found that the [v]eteran's disability did not permanently worsen during service." Id. The Court cannot agree with the degree of clarity assigned the January 2010 medical examiner's opinion. Although the examiner stated that "the claimed foot disorder clearly and unmistakably preexisted service" his statements regarding aggravation contain sufficient ambiguity that is was error for the Board to rely on the examiner's opinion without seeking further clarification. See Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming this Court's conclusion that remand was the appropriate remedy where there was a lack of clarity in the medical evidence and the Board should have sought clarification to resolve the VA examiner's intent). The examiner stated:"Icannotdocument thattheleftfootdisorderwaspermanentlyaggravatedorworsenedduring his period in the military. As previously noted by the examiner from 2003, there was probably intermittent aggravation of his left foot, but there was no permanent damage." R. at 44 (emphasis added). Viewed one way, the examiner's statement could be read as opining that the appellant's foot did not undergo any worsening during service and together with the other evidence of record could support the Board's conclusion that the Secretary satisfied his burden to overcome the presumption of soundness. However, the examiner's statement – "I cannot document" – could also be viewed as an inability to opine whether the appellant's foot underwent a permanent worsening during service. Although the examiner referred to the 2003 examiner's conclusion that there was "no 9 permanent damage," he twice more referred to his own inability "to document" and "find . . . evidence that [the appellant's] left foot was permanently worsened by an incident or occurrence in the military." R. at 44. These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification). The Court is cognizant thattherecordcontainstwoadditionalVAopinions, theJanuary2003 and October 2004 reports, which also address this issue. Although the Board relied on the three medical reports to determine that the Secretary satisfied his burden to rebut the presumption of soundness, the Court finds the Secretary's proof insufficient without the January 2010 examiner's opinion. First, as conceded by the Board, the January 2003 opinion left open "some room, albeit minor, for doubt as to whether aggravation might have occurred" and the examiner's use of the phrase "more likely than not" is insufficient to meet the clear and unmistakable evidence standard. R. at 19; see also R. at 18 (noting that the examiner seemed to concede " 'low long-term aggravation'" but indicating that the examiner "likely meant 'no' instead of 'low'"). Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not 10 follow its caselaw that . . . an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304 )). In this regard, the Court notes that the Board may not discount favorable medical evidence that is conclusory, yet favor another medical opinion that also fails to provide any rationale for its conclusion. Third, the October 2004 examiner did not provide an independent opinion regarding aggravation. Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was intermittent aggravation of his left foot disorder, but that there was no permanent damage"). Because the January 2003 and October 2004 opinions are insufficient to meet the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra. B. The Appellant's Remaining Arguments Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 ( 2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). 11 III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's January 12, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: July 5, 2012 Copies to: Bobby L. Neal VA General Counsel (027) 12