Single Judge Application, Horn, 25 Vet.App. at 236; Presumption of Soundness

Excerpts from decision below: "The presumption of soundness relates to the second service-connection element–the showing of an in-service incurrence or aggravation of a disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Horn, 25 Vet.App. at 236. Pursuant to the second element, a claim must be based either on an injury or disease incurred in service or an injury or disease aggravated in service." ============================= "As this Court recently held in Horn, the second service connection element is satisfied where the first presumption of soundness rebuttal prong is not satisfied (clear and unmistakable evidence of a preexisting condition) or the second prong is not satisfied (clear and unmistakable evidence of no in-service aggravation of the preexisting condition) and there is "any occurrence of injury or disease during service." Horn, 25 Vet.App. at 236. In Horn, the Court held that an unexplained conclusion or medical judgment on a service medical examination board (MEB) report, without more, cannot constitute clear and unmistakable evidence of lack of aggravation to rebut the presumption of soundness. Id. at 240-43." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1377 ALDO P. MAESTRI, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, through counsel, appeals from a March 17, 2011, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for a back disability and a bilateral foot disability. Both parties filed briefs. The appellant argues that the Board erred in applying the presumption of soundness, and the Secretaryconcedes that the April 2005 VA medical examination report regarding the appellant's spine is deficient ("equivocal") because the examiner essentially required that the asserted in-service incident causing injury be verified in the medical records. The Secretary advocates a remand of the back disability claim and an affirmance of the Board denial of service connection for the appellant's foot disabilityclaim. This appeal is timely and the Court has jurisdiction over the appeal pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's March 2011 decision will be vacated in part and both claims will be remanded for correct implementation of the presumption of soundness under HornNext Hit v. Shinseki, 25 Vet.App. 231 (2012), and further development consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from April 1944 to November 1944. Record (R.) at 491. The appellant's entrance examination, of which only an incomplete copy was obtained because his records were presumed destroyed byfire (R. at 10), noted no mental or physical defects and described the appellant's feet as normal. R. at 262-63. A May 1944 service medical record (SMR) noted that the appellant complained of having pain in his back and feet for manyyears and no history of injury or treatment. R. at 255. On his November 1944 separation examination report, the appellant noted, in the section of the report entitled " STATEMENT AND MEDICAL HISTORY OF EXAMINEE," "backache[,] 5-6 yrs. Never hospitalized" and "[w] eak feet, 5 yrs. Never hospitalized." R. at 253. In the same section of the report, the appellant noted that both conditions existed prior to service ("EPTS") and were aggravated by military service ("AMS"). Id. Although the examiner interpreted bilateral foot x-rays as normal (R. at 254), under the heading "Feet"the examiner recorded: "metatarsalgia, bilateral, moderate [to] severe, causeundetermined." R. at 253. The examiner also indicated that there were no musculoskeletal defects. Id. The examiner answered "yes" in a box in response to the question, "In your opinion does [the] individual meet physical and mental standards for discharge?" R. at 253. The cause of separation is noted as "Below minimum physical standards for induction with no suitable assignment." R. at 257. In April 1986, the appellant filed claims for service connection for a back condition and a bilateral foot condition. R. at 988-91. The regional office (RO) denied the claims in May 1986. R. at 986-87. The appellant filed a timely Notice of Disagreement the following month (R. at 981- 82), but did not file a Substantive Appeal after the RO issued a Statement of the Case in July 1986 (R. at 977-80). In July 2002, the appellant requested that his claims be reopened. R. at 904-18. The RO determined that new and material evidence had not been presented to reopen his claims for service connection for back and bilateral foot conditions. R. at 857-60. The appellant perfected an appeal. R. at 824-25, 848. The Board remanded the appellant's claims in June 2004. R. at 804-13. The appellant underwent a VA spine examination in April 2005. R. at 714-16. Theappellant complained of pain in the low back and reported that a tree fell on his tent in basic training and that 2 he was hit on the head and left shoulder. R. at 715. Spine x-rays revealed degenerative disc disease at multiple levels. R. at 716. The examiner opined: On relation of service connection to back, there appears to be a wide difference between the patient's history and the patient's medical records. I also note the results of a psychiatric examination on this question in the past. If the patient's history is regarded without reference to the records, then he has a claim that he developed back pain from the time of the injury occurring in basic training and it has been present until the present time. If the records are to be believed, then the [ appellant] had a pre-existing back pain and there is no service record of exacerbation. Again if the medical records and the prior investigations are to be considered, then it is not as likely as not that [his] current complaints of pain in his back and his diagnosis of degenerative disc disease are service connected. Id. The appellant also underwent a VA foot examination in April 2005. R. at 708-09. He complained of bilateral foot pain and that he could not walk due to foot and back pain. R. at 708. The appellant denied any overt history of foot trauma. R. at 708. The physical examination of the appellant's feet demonstrateddiscomfort,pain,andstiffnessin themetatarsalheadsandhammertoes. Id. Bilateral foot x-rays revealed foot arthritis and hammertoes, right worse than left. R. at 709. The examiner opined that the appellant's claims file did not reveal that arthritis or hammertoes were present before service, had their onset during service, or were caused by any incident in service. Id. She further opined that the claims file did not reveal that the appellant " sustained anysymptoms that were permanent or worsening of his condition [while in service]." Id. She therefore opined that the appellant's "[c]urrent foot disability was most likely a natural progression." Id. In June 2007, the Board reopened the appellant's claims for service connection for back and bilateral foot disabilities and denied the claims on the merits. R. at 498- 512, 514. In October 2008, the Court remanded the Board's 2007 decision pursuant to a joint motion for remand. R. at 455, 456- 62. The Board remanded the appellant's claim for the RO to obtain the appellant's Social Security Administration (SSA) records in February 2009. R. at 430-35. In October 2009, the Board again denied the appellant's claims. R. at 145-57. In October 2010, the Court remanded the Board's 2009 decision pursuant to a joint motion for remand. R. at 53, 61-66. On March 17, 2011, the Board denied the appellant's claims. R. at 3-16. 3 This appeal followed. Subsequent to the filing of briefs, the appellant filed a notice of supplemental authorities on June 22, 2012, informing the Court of its decision in Previous HitHornNext Hit, supra. II. ANALYSIS TheBoardfoundthepresumptionofsoundnessapplicableto theappellant's claimsfor a back disability and a bilateral foot disability, due to the factual finding that there is no documented notation of such disabilities upon the appellant's entrance to service. R. at 10-11; see 38 U.S.C. § 1111. The parties do not dispute this finding. The Board further found that the presumption of soundnesswasnot rebuttedbecause clear and unmistakable evidencedid notdemonstratethataback or foot disability preexisted service. R. at 11-12. The Board accordingly found that the appellant's claim was one based on incurrence of an injury or disease in service. R. at12 (citing Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Inconsideringserviceconnection in this regard,theBoardnotedthe appellant's assertion that his current disabilities stem from injuries he suffered in service when he was struck by a falling tree branch during a hurricane. R. at 12. The Board determined, however, that, even accepting the appellant's description ofthis incidentascredible, therewasinsufficientmedicalevidence of a nexus between the appellant's current conditions and service. R. at 12-14. The Board relied on the 2005 VA foot and spine medical opinions, which it found were adequate for purposes of determining service connection. Id. The appellant argues, in part, that the Board erred in finding that there was no clear and unmistakable evidence that his back and bilateral foot conditions preexisted service. Appellant's Brief (Br.) at 12-18. The appellant also argues that his preexisting conditions were aggravated by serviceandthatthe2005 VA medical opinions with respect to these conditions wereinadequatewith respect to the issue of aggravation. Appellant's Br. at 17, 22-25; R. at 708-09, 714-16. While the appellant does not clearly express the legal consequences that he believes flow from these arguments, he cannot be arguing that the presumption of soundness has been rebutted because such rebuttal would defeat his claims. Generally, 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 4 disability and the disease or injury 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 service-connection element–the showing of an in-service incurrence or aggravation of a disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Previous HitHornNext Hit, 25 Vet.App. at 236. Pursuant to the second element, a claim must be based either on an injury or disease incurred in service or an injury or disease aggravated in service. Aggravation can only be shown if the disease or injurypreexisted service. Wagner, 370 F.3d at 1093 (noting that aggravation claims are premised on the existence of a preexisting injury). "The presumption of soundness strongly favors the conclusion that any occurrence of injury or disease during service establishes that the in-service medical problems were incurred in the line of duty, that is, during active service and not as a result of the service member's own misconduct." Previous HitHornNext Hit, 25 Vet.App. at 236. The statutory presumption of soundness provides that when no medical condition is noted upon a wartime veteran's entryinto service, the veteran is presumed to have been in sound condition upon entry to service, subject, however, to rebuttal. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1093. The presumption can be rebutted where the Secretary meets his burden to show that clear and unmistakable evidencedemonstratesthatacondition both preexisted serviceandwasnot aggravated by service. Id. at 1096. Where, as here, the Board specifically found that the presumption of soundness applies and has not been rebutted, we do not interpret the appellant's brief as arguing that the presumption of soundness is rebutted. Becausethepresumptionofsoundnessis not rebutted, theappellant'sclaimcanonlybebased on incurrence of an injuryor disease in service, as opposed to in-service aggravation of a preexisting condition. This is true even if, as the appellant argues, he has a preexisting condition but rebuttal of the presumption of soundness fails. The Board correctly recognized that the court in Wagner explained that, in this circumstance, section 1111 has the effect of converting a claim based on aggravation into a claim based on incurrence. R. at 12; Wagner, 370 F.3d at 1096 (holding that 38 U.S.C. § 1111 "essentially had the effect of converting an aggravation claim into one for [incurrence] where the government [fails to] show a lack of aggravation of a preexisting condition 5 byclear and unmistakable evidence.")1 ; seealso Joycev.Nicholson,443F.3d.845,847-48(Fed. Cir. 2006) ("Our decision in Wagner made clear that, under the wartime service regime, there is onlyone claim for a disability not noted upon entry - a claim for [incurrence]."). Here, the Board's implicit finding that the appellant's service from April 1944 to November 1944 was during wartime is not challenged by the parties. See 38 C.F.R. § 3.2(d) (2012) (designating the World War II period of war from December 7, 1941, through December 31, 1946). Further, the parties do not dispute the Board's finding that neither a foot nor a back condition was noted upon the appellant's entryinto service and its determination that the presumption of soundness therefore applies. R. at 10-11. The Board's conclusion in this regard is not undermined by the fact that the record contains only part of the appellant's entrance examination and that the remainder may have been destroyed by fire. See Quirin v. Shinseki, 22 Vet.App. 390, 397 n.5 (2009) (it would be purelyspeculativetosuggestthatanydestroyedrecordscontainevidenceofapreexis). Under the circumstances here, where the Board found that the presumption of soundness has not been rebutted, and the SMRs and service separation examination report show the existence of an injury or disease, the appellant is entitled to the benefit of the presumption of soundness, i.e., the establishment of an in-service incurrence of a back and foot condition. As this Court recentlyheld in Previous HitHornNext Hit, the second service connection elementis satisfied where the first presumption of soundness rebuttal prong is not satisfied (clear and unmistakable evidence of a preexisting condition) or the second prong is not satisfied (clear and unmistakable evidence of no in-service aggravation of the preexisting condition) and there is "any occurrence of injury or disease during service." Previous HitHornNext Hit, 25 Vet.App. at 236. In Previous HitHornNext Hit, the Court held that an unexplained conclusion or medical judgment on a service medical examination board (MEB) report, without The U.S. Court of Appeals for the Federal Circuit used the term "service- connected disability" here. However, the court clearly was referring to a claim based on service incurrence of an injury or disease. At the outset of its analysis, the court noted the statutory definition of "service-connected" as a disability that was "incurred or aggravated" in the line of duty. Wagner, 370 F.3d at 1093. It then stated: "In other words, a claim may either be for a service-connected disability or for aggravation of a preexisting disease or injury." Id. The court explained: "For sake of convenience, we use the term "service-connected" herein to refer to a disability that is wholly service-connected, as opposed to an aggravation claim." Id. at n.5. The court elaborated on its concept of " wholly service-connected" later in its decision: "This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded." Id. at 1096. In Joyce v. Nicholson, this Court interpreted the Wagner decision similarly, stating that if the presumption of soundness applies, "then 'the veteran's claim is one for service connection [based on incurrence in service].'" 19 Vet.App. 36, 46 (2005) (alteration in original) (quoting Wagner, 370 F.3d at 1096). 1 6 more, cannot constitute clear and unmistakable evidence of lack of aggravation to rebut the presumption of soundness. Id. at 240-43. There, the induction examination report contained no notation of a hip condition or other defect of the lower extremities, an SMR noted hip pain during the first three weeks of training, and the MEB report stated that the veteran was medically fit for retention under then-current medical fitness standards but diagnosed Legg- Calve-Perthes disease, indicating with an "X" that the condition existed prior to service and was not aggravated by active duty and recommended separation from service "for Convenience of the Government." Id. at 233- 34. In Previous HitHornNext Hit, as here, the Secretary did not meet its burden to satisfy the standard required for rebutting the presumption of soundness statute. There is a notation in Mr. Maestri's SMRs that he was being seen for current complaints ("cc.") of pain in his feet and back and that he had "pain in feet and back for many years" but had no "inj[ury]" and no treatment. R. at 255 (May 1944 SMR). The examiner's findings included "tenderness over both heels" and other notations that are illegible but refer to his inside heels and his back. Id. A November 1944 "Report of Physical Examination of Enlisted Personnel Prior to Discharge,ReleasefromActiveDutyorRetirement," whichwascompletedapproximately7months after the appellant's entry into service, reflected that the appellant reported "backache – 5-6 years. Never hospitalized" and "weak feet, 5 yrs. Never hospitalized." R. at 253. On the same form, the examiner noted that the appellant met the physical and mental standards for discharge. Id. And, although no musculoskeletal defects were noted, the examiner reported, as to the appellant's feet, "metatarsalgia, bilateral, moderate to severe, cause undetermined." Id. A November 1944 "Report of Separation" noted the cause of separation as: "Below minimum physical standards for induction with no suitable assignment." R. at 257. The appellant submitted a post-service statement asserting that he was in excellent health prior to military induction and disputing the notations on service medical records reflecting that he reported having back and feet problems for 5 to 6 years. R. at 695. Another statement of the appellant noted that he developed back and feet problems while in service and that he was "100% fit and healthy" when he entered service. R. at 981. VA medical examination notes reflected that appellant reported experiencing pain in his feet while walking during training but denying any overt history of foot trauma. R. at 708. 7 With respect to incurrence of an injury or disease in service, the Board noted that "the Veteran attributes his current back and bilateral foot disabilities to injuries he suffered during training and when struck by a falling tree branch during a hurricane in service." R. at 12. The Board stated: "[E]ven if the Board was to accept, as credible, the Veteran's description of in-service injury, the claims must be denied on the basis of medical nexus to service." R. at 12. Regardless of credibility, because the appellant is entitled to the benefit of the presumption of soundness and there is some evidence of an in-service incurrence of injury, he has established the second element of both his service connection claims.2 Regarding whether the evidence establishes that the appellant's current back and foot disabilities are related to service, the Board erred in requiring that there be a diagnosed in service either a "back or foot disability" or a "diagnosed pathology underlying the Veteran's complaints." R. at 13. The Board stated: "Significantly, as indicated, no actual back or foot disability was then shown; and, as noted, complaints of pain alone, do not constitute a disabilityfor VA purposes." R. at 13. This statement is contrary to application of the presumption of soundness to this case that entitles the appellant to having established an in-service incurrence for both his back and foot conditions. There is nothing to preclude a medical examiner from establishing that the appellant's current problems with his back and feet are related to the pain and injury that have been established as being incurred in service. The Board confused the issue of whether the appellant has a current "disability" with the issue of whether the appellant incurred an injury or disease in service. And, for purposes of establishing service incurrence, the second element of a service connection claim, a "disability" in service is not required; an injury is sufficient. Moreover, the Board was not free to interpret the in-service medical notation of metatarsalgia as representing " complaints of pain alone" without supporting medical evidence. R. at 11; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not reject medical evidence in the record based on its own unsubstantiated medical conclusions). The Court notes that the Board, in granting service connection in 2007 for a head condition, accepted as a factual finding the existence of the falling tree branch incident. R. at 498-512. Such a finding is consistent with service incurrence of an event established through application of the presumption of soundness for the appellant's feet and back. 2 8 In this regard, the Board also erred in using its aforementioned statement to preclude finding a nexus to service. The Board stated: "Hence, this evidence [(in-service notations on SMRs and establishedincurrence)] cannotprovidepersuasivesupportforafindingthatsubsequentlydiagnosed back and foot disabilities are medically related to service, to include on the basis of in-service aggravation of pre-existing problems (pain)." Id. This statement is a medical conclusion that the Board is not capable of making and violates the principle from Colvin that the Board may not make unsubstantiated medical conclusions. Significantly, as argued by the appellant, the Board erred in relying on the April 2005 VA medical examination reports because they were inadequate. Appellant's Br. at 25-28; R. at 14. The Court agrees. The Court first notes that the Board summarily rejected the appellant's argument that the 2005 VA opinions were inadequate based solely on the Board's statement that the appellant did not present or identify "any contrary medical evidence or opinion that, in fact, supports the claim." R. at 14. The reason provided by the Board on this point is not apposite or dispositive of the argument made. If VA has provided a medical examination of the appellant, pursuant to 38 U.S.C. § 5103A, VA is obligated to provide an adequate one. The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (2012). "[O]nce the Secretary undertakes the effort to provideanexaminationwhendevelopingaservice-connectionclaim,evenifnot statutorilyobligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001)) (where an examination report is inadequate, the Board should remand the case to the RO for further development); Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (holding that an inadequate medical examination frustrates judicial review). Here, the central question is whether it is as likely as not that the appellant's current foot and back disabilities are related to service. The 2005 VA medical examiners failed to provide an opinion as to the likelihood that the appellant's present back and bilateral foot disabilities are causally related to service, assuming that the appellant suffered an in-service incurrence of injury to his feet and back. See Previous HitHornNext Document, 25 Vet.App. at 244-45 (holding that the presumption of soundness applied, 9 reversing the Board's finding that service did not aggravate the veteran's preexisting Legg-Perthes's disease, remanding for development on the other service-connection issues, and remanding with the direction that "any VA medical examiner(s) must assume that the appellant aggravated his Legg- Perthes's disease during service."); R. at 708-09 (April 2005 VA medical report pertaining to feet); R. at 714-16 (April 2005 VA medical report pertaining to the appellant's back). As such, the Board's finding that the 2005 VA medical examination reports are adequate and probative is clearly erroneous. See D'Aries v. Peake, 22 Vet.App. 97, 103 (2008) (noting that whether a medical opinion is adequate is a finding of fact, which the Court reviews under the " clearly erroneous" standard). The Court therefore vacates the Board's denial of service connection for the appellant's present back and foot disabilities and leaves undisturbed the Board's favorable findings that the presumption of soundness applied and was not rebutted. The Board is directed to enter a finding that the appellant had met the element of service incurrence for both a back and foot injury. The Court will remand for development on the other service-connection issues. On remand, the Board and VA medical examiner(s) must assume that the appellant incurred an injury to his back and feet during service. On remand, the Board must consider all potential theories of service connection, including continuity of symptomatology, and account for the lay evidence of record. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 3.303(b) (2012). On remand, the appellant is free to submit additional evidence and argument on the remanded claims for entitlement to service connection for disabilities of the back and feet, which the Board must consider when readjudicating his claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B, 7112. III. CONCLUSION Uponconsideration oftheforegoinganalysis, therecordonappeal, theparties'pleadings, and the March 17, 2011, Board decision, the Court leaves undisturbed the Board's determination, with respect to both claims for service connection for a back disability and for a foot disability, that the presumption of soundness, under 38 U.S.C. § 1111, is applicable and is not rebutted. The Court 10 directs that the Board enter a finding of in-service incurrence of a back and foot injury. The remainder of the Board's decision is VACATED and the matters are REMANDED for further development consistent with this decision. DATED: October 2, 2012 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 11