Tuesday, October 23, 2012

Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 235 (2012); Presumption of Soundness

Excerpts from decision below: "To be clear, the aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that "VA may not rest on the notion that the record contains insufficient evidence of aggravation," and the Secretary's failure "to produce clear and unmistakable evidence of lack of aggravation" entitles a claimant to a finding of in-service aggravation of the preexisting condition)." ============================= "Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity to develop the record, "the Court's role is . . . to assess whether the Secretary has succeeded in carrying his burden." See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, "reversal, not remand, is . . . the appropriate remedy." Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation)." ============================= "In this case, the only affirmative evidence of record relied on by the Board to establish lack of aggravation is the June 2010 VA examiner's report. See R. at 11-12; see also Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) ("[T]he Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection."). However, a review of the June 2010 examiner's opinion reveals that the examiner's opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court's assessment of the sufficiency of a physician's report concerning lack of aggravation is "a significant part of what the Court does on de novo review"). First and foremost, the only rationale provided by the June 2010 VA examiner to support his conclusion that the appellant's right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the service medical records of an injury or event. See R. at 73 (stating that the appellant's "right club 8 foot is less likely as not permanently aggravated . . . as there is no evidence of any in-service injury and/or event in the [service medical record] . . . to support any acute findings on x[-]rays or physical examination that altered the NATURAL history or progression")." ============================= "As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it "effects an impermissible burden shift" to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (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 follow its caselaw that ... an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))). As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1831 JERRY L. YARBROUGH, 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: The pro se appellant, Jerry L. Yarbrough, appeals a May 31, 2011, Board of Veterans' Appeals (BVA or Board) decision that denied VA disability compensation benefits for a right club foot. Record of Proceedings (R.) at 3-15. 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). Because the Secretary failed to carry his burden to rebut the aggravation prong of the presumption of soundness, the Court will reverse the Board's May 2011 decision insofar as it pertains to the rebuttal of the aggravation prong of the presumption of soundness 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 September 5, 1967, to October 10, 1967. R. at 246. His August 1967 enlistment examination included no indication of any foot disorder. R. at 223-24. During the first week of basic training, on September 11, 1967, the appellant reported that he was "unable to walk [and] run because of [a] problem [ with] right foot." R. at 219. A September 11, 1967, podiatrynote indicates that the appellant wasborn with a right foot deformity that was treated with braces. Id. The podiatrist noted that the appellant walked on the outer border of the right foot, with the inside highly elevated, and recommended a medical evaluation board (MEB). Id. The MEB examination export noted under the section entitled " history of present illness," that the "[p]atient has pain in right foot as a result of birth deformity, partially corrected, resulting in pain on marching, running, jumping[,] and preventing him from meeting training requirements." R. at 214. After conducting a physical examination and obtaining x-rays of the right foot, which revealed "marked lateral deviation of callous metatarsus varus ," the examiner diagnosed residuals of clubfoot deformity. Id. Because the appellant did not meet induction standards, the MEB recommended that he be considered for separation for a condition that "[ EPTS (existed prior to service)]" and was "not service aggravated." R. at 215. In October 2008, the appellant filed a claim for disability compensation for "aggravation of right club foot." R. at 264-75. In support of his claim, the appellant submitted a June 2008 statement from his treating physician, Dr. Roberts. R. at 282. Dr. Roberts noted the appellant's history as having been born with a right club foot, which was not surgically corrected, but that after extensive strengthening and therapy, he was able to walk without a limp and participate in high school sports without any difficulty. Id. He also noted the appellant's report that he injured his right foot during basic training, when, "[u]pon jumping, his right foot hit the edge of [a] pit hyperextending the foot causing acute pain." Id. The appellant reported that he has had a limp since that time that has not resolved. Id. Dr. Roberts's physical examination revealed "varus of the forefoot with decreased dorsiflexion and severe degenerative changes to the carpal metacarpal joints." Id. He noted that the appellant's foot is adducted and inverted, and that he walks on the outside of the foot. Id. In conclusion, Dr. Roberts opined that "it is at least as likely as not that the service treatment, marching, crawling, etc. could have actually aggravated his right club foot." Id. In February 2009, the regional office (RO) issued a rating decision denying the appellant's claim. R. at 172-77. The appellant filed a timely Notice of Disagreement ( R. at 158-61), the RO issued a Statement of the Case (96-110), and the appellant perfected an appeal to the Board (R. at 94-95). The appellantalso submitted an additional statement from Dr. Roberts, dated October 2009, in which Dr. Roberts stated that he was submitting the letter to clarify his earlier statement. R. at 88. The content of his statement, however, is identical to that of the June 2008 letter, except for the 2 degree of certainty expressed in his conclusion, i.e., Dr. Roberts opined that the appellant's "right foot condition was at least as likely as not aggravated beyond its normal progression by some event or injury in the service." Id. In June 2010, the appellant underwent a compensation and pension examination of his right foot. R. at 64-80. The examination report indicates that the examiner reviewed the appellant's claims file and medical records, including Dr. Roberts's October 2009 statement; took a medical history from the appellant, including his assertion that he was born with a right club foot and sustained an injury to his right foot during basic training; and conducted a physical examination of his feet. In conclusion, the examiner stated: [A]fter a review of medical records, taking a history, performing a physical examination and a review of the medical literature[,] the [v]eteran's pre[] existing congenital right club foot is less likely as not permanently aggravated by in-service activities, injuries and/or events and is at least as likely as not permanently aggravated by his post service activities, injuries, and/or events, occupation, and the normal process of aging as there is no evidence of any in-service injury and/or event in the [service medical record] to include the evaluation of 9/8/67 to support any acutefindings onx[-]rays orphysicalexaminationthatalteredtheNATURALhistory or progression of his congenital condition. In addition, the [v]eteran did not seek care for his pre[]existing congenital right club foot condition for more than 40 years after military service. Id. Finding the VA examiner's opinion the most probative evidence of record, the RO issued a Supplemental Statement of the Case in July 2010 that continued to deny the appellant's claim. R. at 60-63. The appellant and his wife thereafter testified at an April 2011 Board hearing. R. at 19-29. The appellant testified that he was born with a right club foot, but denied anyproblems or limitations of activity prior to service. R. at 21, 25. The appellant also described a night exercise during basic training where he sustained an injury to his foot. R. at 27. He stated that the doctor sent him back to his barracks and informed him that he would receive a medical discharge. R. at 28. The appellant's wife testified that she met her husband in August 1965 and married him in June 1967. R. at 22. She stated that she did not notice any problems with his foot before he entered the military and that he had played baseball and basketball in school, worked on a farm, driven a 3 tractor, and plowed fields. R. at 23. She testified that the appellant informed her by telephone that he injured his foot in service and described her observations of his pain following service. R. at 23- 24 (stating that the appellant did not complain about his foot before service, but complained of pain and required daily rest after service). On May 31, 2011, the Board issued the decision here on appeal denying VA disability compensation benefits for a right club foot. The Board found that the appellant clearly and unmistakably entered service with a preexisting foot disorder and that the evidence clearly and unmistakably established that his condition was not aggravated by service. R. at 4. This appeal followed. II. ANALYSIS 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 4 during service, or (2) any increase in disability was 'due to the natural progression' of the condition."). To be clear, the aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that "VA may not rest on the notion that the record contains insufficient evidence of aggravation," and the Secretary's failure "to produce clear and unmistakable evidence of lack of aggravation" entitles a claimant to a finding of in-service aggravation of the preexisting condition). Therefore, where evidence to establish a preservice baseline for a preexisting condition is lacking, the Secretary may attempt to carry his evidentiary burden with a post[] service medical opinion that discusses 'the character of the particular injury or disease,' 38 C.F.R. § 3.304(b)(1) in relation to the available evidence. In certain cases, the nature of a preexisting disease or injury may imply an extremely low likelihood of aggravation by a limited period of even intense physical training. See 38 C.F.R. § 3.303(c). If a physician is able to support such a conclusion with a suitable medical explanation, supported byextant medical knowledge and the facts of record, such an opinion might constitute or contribute to clear and unmistakable evidence of lack of aggravation. Id. at 243. TheCourt reviewsdenovoaBoarddecisionconcerningtheadequacyoftheevidenceoffered 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 reviewingthe legal sufficiencyof rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not 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). A. Preexistence Prong of the Presumption of Soundness In this case, it is undisputed that the appellant's militaryentrance documents did not note any foot disorder 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 right club foot preexisted service. R. at 10; see also R. at 21, 25 (appellant's hearing testimonyadmitting that he was born with a right club foot); R. at 64-80, 88, 282 (Dr. Roberts's June 2008 and October 2009 statements, and the VA examiner's June2010report, allindicatingthattheappellant's right clubfootpreexisted militaryservice);Harris 5 v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000) (concluding that the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of "records made 'prior to, during, or subsequent to service' concerning the inception of the disease"); Doran v. Brown 6 Vet.App. 283, 286 (1994) (concluding, "as a matter of law, that the presumption of soundness was rebutted byclear and unmistakable evidence consisting of [the] appellant's own admissions . . . of a preservice [disability]"). Thus, the remaining issue is whether VA established by clear and unmistakable evidence that the appellant's preexistingfootcondition did not undergoanincreasein severityduring service or that any increase was due to the natural progress of the disease. See Wagner and Hood, both supra. B. Aggravation Prong of the Presumption of Soundness 1. The Parties' Arguments On appeal, the appellant requests that the Court "grant [VA disability compensation] for aggravation." Informal Brief (Br.) at 2. He asserts that he was "found fit for full duty with the condition[,] . . . could not complete training[,] and ha[s] suffered from [ the] date of injury to today." Id. The Secretaryconstrues the appellant's argument as a request for reversal of the Board's decision, but asserts that remand, rather than reversal, is the appropriate remedyin this case because the Board provided an inadequate statement of reasons or bases for its evaluation of the appellant's lay evidence. Secretary's Br. at 5-9. Specifically, the Secretary concedes that the Board (1) failed to adequately explain its reasons for finding the appellant and his wife not competent to opine whether his preexisting foot disorder was aggravated by service, and (2) improperlyfound the appellant's lay evidence concerning an in-service injury not credible merely because it was not accompanied by contemporaneous medical evidence. Id. 2. The Secretary's Concession of Error and the Appropriate Remedy The Court will accept the Secretary's concession of Board error. It is clear from a review of the Board's decision that the Board improperly found the appellant and his wife not credible regarding the allegation that he sustained an injury in service solely because of the "lack of corroborative evidence in the service treatment records." See R. at 14; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that "the Board cannot determine that 6 lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Additionally,the Board failed to explain adequatelywhythe appellant and his wife were not competent to testifythat his preexisting foot disorder was aggravated byservice. See R. at 13-14; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ( noting that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed bythe Board); Kahana v. Shinseki, 24 Vet.App.428, 435 (2011) (holding that"theBoard's categorical rejection and failure to analyze and weigh the appellant's lay evidence in accordance with established precedent renders its statement of reasons or bases inadequate"). Notwithstanding the Court's agreement with the Secretary's admission of error, the Court disagrees with the Secretary's contention that remand is the appropriate remedy. Although it is generally true that remand, not reversal, is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate," Tucker v. West, 11 Vet.App. 369, 374 (1998), the general rule is not for application in this case. Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity to develop the record, "the Court's role is . . . to assess whether the Secretary has succeeded in carrying his burden." See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, "reversal, not remand, is . . . the appropriate remedy." Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation). 3. Evaluation of the Secretary's Evidence The Board began discussing the evidence pertinent to whether the evidence showed no aggravation duringservicebyreviewingtheappellant's servicetreatmentrecordsandnotingthatthey were "negative for objective evidence of anyin-service injuryto the right foot." R. at 11. The Board further noted that the postservice record was negative for any objective evidence of right foot problems until 2008 and found that the lack of documentation weighed heavily against the claim. See id. The Board then proceeded to review Dr. Roberts's opinions but ultimately concluded that 7 his opinions were not probative because they were based on an incomplete medical history and Dr. Roberts failed to explain why he changed the degree of probability expressed in his opinion, i.e., noting that the June 2008 statement contained an equivocal conclusion, whereas the October 2009 statement was more definitive. R. at 11-13. Finally, the Board noted the June 2010 examiner's conclusions and found them to be "the only competent and credible evidence of record" demonstrating that the appellant's right club foot was not aggravated byhis militaryservice, and that the record therefore contained clear and unmistakable evidence showing that the appellant's preexisting right club foot was not aggravated by his military service. R. at 13. The Board's analysis is fatally flawed for a number of reasons. First, the Board improperly afforded significant weight to the absence of objective evidence of an in- service injury. As the Court noted in Previous HitHornNext Hit, "[i]t is the lack of aggravation that the Secretary must prove, not lack of an injury." 25 Vet.App. at 239. Second, regardless of whether the appellant submitted sufficient evidence of aggravation, ultimately the burden is on the Secretary to prove lack of aggravation. See id. at 242 (stating that "the veteran has no burden to produce evidence of aggravation[,] . . . [i]nstead, the evidence of lack of aggravation produced by the Secretary must rise to the level of clear and unmistakable evidence on its own merit, without reference to any countervailing evidence"). In this case, the only affirmative evidence of record relied on by the Board to establish lack of aggravation is the June 2010 VA examiner's report. See R. at 11-12; see also Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) ("[T]he Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection."). However, a review of the June 2010 examiner's opinion reveals that the examiner's opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court's assessment of the sufficiency of a physician's report concerning lack of aggravation is "a significant part of what the Court does on de novo review"). First and foremost, the only rationale provided by the June 2010 VA examiner to support his conclusion that the appellant's right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the service medical records of an injury or event. See R. at 73 (stating that the appellant's "right club 8 foot is less likely as not permanently aggravated . . . as there is no evidence of any in-service injury and/or event in the [service medical record] . . . to support any acute findings on x[-]rays or physical examination that altered the NATURAL history or progression"). As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it "effects an impermissible burden shift" to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (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 follow its caselaw that ... an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))). As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination. Therefore, on de novo review, the Court finds that the Secretary has failed to carry his burden to prove lack of aggravation by clear and unmistakable evidence. Accordingly, the Court will reverse the Board's finding that the aggravation prong of the presumption of soundness was rebutted. See Horn, 25 Vet.App. at 243-44 ( remand is inappropriate in the face of medical evidence that is plainly insufficient to rebut the presumption of soundness). The Board is directed to enter a finding that the appellant's preexisting right club foot was aggravated in service. Of course, in orderto obtain disabilitycompensation, theappellantmust still demonstrate a nexus between his current disability and the in-service aggravation. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (holding that although 38 U.S.C. § 105(a) "establishes a presumption that the disease or injury incurred during active duty is service-connected, the veteran seeking compensation must still show the existence of a present disability and that there is a casual relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty"). The Court will therefore remand the case for development and adjudication of this issue. 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 9 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). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record,theCourt REVERSES the Board's May31, 2011, decision that the presumptionofsoundness had been rebutted, directs that the finding of in-service aggravation of the right club foot be entered, and REMANDS the matter for further development consistent with this decision. DATED: October 17, 2012 Copies to: Jerry L. Yarbrough VA General Counsel (027) 10