Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 236 (2012); Presumption of Soundness

Excerpt from decision below: "However, the 2010 Board addressed the presumption of soundness and noted that the 1977 Board found that RP "was not shown to be present until subsequent to his period of service," such that the presumption of soundness is not for application. Record (R.) at 17; see R. at 18 ("As to the allegations that the presumption of soundness was not rebutted, the [1977] Board specifically denied service connection as not being incurred in service . . . ."); see also Horn v. Shinseki, 25 Vet.App. 231, 236 (2012) ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-4319 ROY A. PICKETT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Roy A. Pickett appeals through counsel a November 19, 2010, decision of the Board of Veterans' Appeals (Board) that found no clear and unmistakable error (CUE) in a 1977 Board decision denying benefits for retinitis pigmentosa (RP). Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's (1) failure to address the presumption of soundness or aggravation, (2) interpretation of the evidence, and (3) failure to address presumptive service connection. The Secretary disputes these arguments. On April 19, 2012, the Court issued a memorandum decision affirming the Board decision. On May 8, Mr. Pickett filed a motion for reconsideration or, in the alternative, panel review, and thereaftertheSecretaryfiledanopposition to Mr.Pickett'smotion. Single- judgedispositionremains appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the motion for reconsideration will be granted, the April 19, 2012, memorandum decision will be withdrawn and this decision issued in its stead, and the November 19, 2010, Board decision on appeal will be affirmed. The 2010 Board found, inter alia, that (1) the 1977 Board decision did not contain any error constituting CUE, such that no correction of any error would have resulted in a manifestly different outcome for Mr. Pickett's claim, and (2) Mr. Pickett's assertions of CUE amounted to a mere disagreement with how the facts were weighed, which the Board stated could not constitute CUE. As further discussed below, Mr. Pickett fails to demonstrate that these findings are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005) (Board decisions on CUE motions are reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard). First, Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's failure to address the presumption of soundness (38 U.S.C. § 1111) or aggravation (38 U.S.C. § 1153). However, the 2010 Board addressed the presumption of soundness and noted that the 1977 Board found that RP "was not shown to be present until subsequent to his period of service," such that the presumption of soundness is not for application. Record (R.) at 17; see R. at 18 ("As to the allegations that the presumption of soundness was not rebutted, the [1977] Board specificallydenied service connection as not being incurred in service . . . ."); see also HornNext Document v. Shinseki, 25 Vet.App. 231, 236 (2012) ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."). Moreover, although the 2010 Board did not explicitly address the presumption of aggravation, it found that RP was not noted upon entry to service, such that section 1153 is inapplicable. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (noting that section 1153 applies "if a preexisting disorder is noted upon entry into service"). Although Mr. Pickett notes in support of his first argument that a 1975 Statement of the Case (SOC) and 1976 Supplemental Statement of the Case (SSOC) found that RP preexisted service and was not aggravated in service beyond its normal progression, he fails to identify where in the record below he asserted that the 1977 Board decision contained CUE because it did not hold the same view of the evidence as the underlying SOC and SSOC. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (noting that each specific theory of CUE must be the subject of a Board decision before this Court can exercise jurisdiction over it); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal). Even if he had raised that assertion below, it nevertheless is well established that statements in decisions underlying a Board decision are subsumed by that Board decision, and only the findings of that Board decision are subject to revision based on CUE. See Brown v. West, 203 F.3d 1378, 1381 ( Fed. Cir. 2000) (noting 2 that, where a VA decision is subsumed by a Board decision, a claimant must demonstrate CUE in the Board decision). Also in support of his first argument, Mr. Pickett identifies a notation of nightblindness upon his entry to service and asserts that night blindness is a symptom of RP, and thus argues that the presumption of aggravation should have been applied. However, he fails to demonstrate that he raised this alleged relationship between night blindness and RP to the 2010 Board. See Andre and Hilkert, both supra. Moreover, although he notes in his motion for reconsideration that the 1972 Merck Manual characterizes night blindness as a symptom of RP, this does not establish that RP was present when he entered service or during service and, at best, suggests that the claim may not have been fully developed, which would not demonstrate CUE. See Caffrey v. Brown, 6 Vet.App. 377, 387 (1994) (noting that the Secretary's failure to fulfill the duty to assist cannot constitute CUE). Second, Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's interpretation of the evidence. Specifically, he contends that the evidence before the 1977 Board compelled a conclusion manifestly different from the 1977 Board's conclusion that RP was not incurred or aggravated in service. However, as the 2010 Board noted, there is sufficient evidence supporting the 1977 Board's conclusion, to wit: (1) Mr. Pickett's service medical records did not reflect a diagnosis or notation of RP, (2) his separation eye evaluation was normal, (3) he was first diagnosed with RP nine months after service, and (4) the March 1977 medical opinion found no relationship between RP and service. Although Mr. Pickett contends that the March 1977 medical opinion should be read as implicitly finding that RP manifested in service, a fair reading of the opinion reflects that it did not address the issue of in-service manifestation,1 such that Mr. Pickett's view is not the onlypermissible interpretation of the March 1977 medical opinion. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'Where there are two permissible views of the evidence, the factfinder's choice between The opinion states: "Did the veteran have a separate acquired macular pathology aside from his [RP] in 1970? . . . No. The description of the macular findings are entirely typical of [RP]." R. at 1665. Considering that Mr. Pickett left service in March 1970 with a normal separation eye evaluation and was first diagnosed with RP in December 1970, it appears that the examiner is stating that Mr. Pickett exhibited findings typical of RP as of the examination in December 1970. The opinion then continues: "[RP] is a hereditary disease . . . . [The data does not suggest that] service contributed in any way to Mr. Pickett's unfortunate deterioration of vision. His eyes would be in the same condition whether he were in the Navy during this time or not." R. at 1665. This sentence also does not answer the question of when Mr. Pickett's RP symptoms first manifested. 1 3 them cannot be clearly erroneous.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573- 74 (1985))); see also Joyce, 19 Vet.App. at 48 (demonstrating CUE requires showing that the original decision is counter to the "only[ ] permissible view of the evidence"). Further, even reading the March 1977 medical opinion as implicitlyfinding that RP was present in service, the 2010 Board nevertheless noted that the 1977 Board relied on a composite of bases for finding no in-service manifestation, see supra, such that Mr. Pickett does not demonstrate that the evidence compelled a manifestlydifferentoutcome. See Sondel v. West,13Vet.App.213,221(1999)( demonstrating CUE requires showing that the correction of an error "would manifestly have changed the outcome of the case").2 To the extent Mr. Pickett argues that the medical opinions are the most probative on the question of in-service manifestation, there is no requirement that the 1977 Board give greater weight to postservice medical opinions than the in-service medical records noting no RP on entry, during, or on exit from service. See Washington v. Nicholson, 19 Vet.App. 362, 367- 68 (2005) (Board has the dutyto determine the credibilityand probative weight of the evidence); cf. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (Board may not rely on the absence of actual evidence, but may rely on the existence of substantive negative evidence). Also in furtherance of his view that the March 1977 medical opinion implicitly found RP present in service, Mr. Pickett contends that the 2010 Board mischaracterized an August 1974 medical opinion and the March 1977 medical opinion as conflicting. However, a fair reading of the 2010 Board opinion reflects that its characterization of these opinions as " conflicting" referred to the issue of whether RP was "related" to service, and the record reflects that the two opinions certainly differ on the question of the relationship between RP and service. R. at 17. Mr. Pickett also contends that the 2010 Board should have found CUE in the 1977 Board's interpretation oftheevidencebecausethe1977Boardcharacterized anAugust 1974medicalopinion stating that RP "was present . . . in service and probably progressed" (R. at 1734), as an opinion that RP "was probably present . . . in service" (R. at 1661). However, he fails to identify where he raised this specific assertion of CUE to the Board. See Andre and Hilkert, both supra. Moreover, even if he had raised it, Mr. Pickett fails to demonstrate that the misplacement of an adverb ("probably") in Contrary to Mr. Pickett's allegation in his motion for reconsideration, the Court is not acting as a factfinder by noting these alternative bases of Board reliance. 2 4 the summary of evidence is the type of error constituting CUE, see Sondel and Hilkert, both supra; rather,his mischaracterization argumentconstitutesameredisagreementwiththeBoard's evaluation and weighing of the evidence, which generallycannot constitute CUE. Compare Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) (claimant "must assert more than a disagreement as to how the facts were weighed or evaluated"), with Amberman v. Shinseki, 570 F.3d 1377, 1382 (Fed. Cir. 2009) (noting that "CUE maybe found based upon an error of fact," e.g., " identifying an error in how [the previous decisionmaker] initially weighed evidence," if the other CUE requirements are satisfied); see also Joyce, 19 Vet.App. at 48 (finding of fact is clearly and unmistakably erroneous when counter to the "only [ ] permissible view of the evidence"). Overall, Mr. Pickett fails to demonstrate that the 2010 Board's findings regarding the 1977 Board's interpretation of the evidence were clearly erroneous, or that the 2010 Board's conclusions on this matter were arbitrary, capricious, an abuse of discretion of otherwise not in accordance with law. See Hilkert, supra; cf. Fugo v. Brown, 6 Vet.App. 40, 44 (1993) ("[S] imply to claim CUE on the basis that previous adjudications had improperly . . . evaluated the evidence can never rise to the stringent definition of CUE."). Third, Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's failure to address presumptive service connection. However, he fails to identify where in the record he asserted that the 1977 Board committed CUE by not addressing presumptive service connection. Accordingly, he fails to demonstrate that the 2010 Board erred by not addressing this assertion of CUE. See Andre and Hilkert, both supra. Overall, Mr. Pickett fails to demonstrate that the 2010 Board decision finding no CUE in the April 1977 Board decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or that the 2010 Board's statement of reasons or bases in support of its decision is inadequate. See Joyce and Hilkert, both supra; see also Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). Accordingly, the November 19, 2010, Board decision on appeal is AFFIRMED. DATED: September 24, 2012 5 Copies to: Theodore C. Jarvi, Esq. VA General Counsel (027) 6