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

Single Judge Application, Presumption of Soundness Satisfies Second Shedden Requirement, Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Maxson v. West, 12 Vet.App. 453, 460 (1999)

Excerpt from decision below: "A claim for service connection must generally be supported by evidence demonstrating "(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 disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is unclear from the examiner's report, and from the Board's reiteration, which element was regarded as unproven." ============================== "The presumption of soundness relates to the second Shedden requirement–the showing of in-service incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (application of presumption satisfies incurrence or aggravation element). A claimant must show that he or she suffered from a disease or injury while in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof. The Board made no finding whether the transient blindness is in any way related to the 5 congenital conditions noted on the 2004 entrance examination. As the Board acknowledged, the fact that one or more difficulties with vision were noted on the entrance examination does not mean that every vision problem that may have developed in service is attributable to a preexisting condition. See R. at 8 ("The [VA] examiner indicated that [the transient blindness] may not be congenital in nature, and may even be a symptom associated with explosions experienced by the Veteran during active service." R. at 8-9. Thus, the Court has no basis on which to conclude that the transient blindness was a preexisting condition noted on the entrance examination or that the in-service manifestation of transient blindness was not to be regarded as an in-service disease or injury." =============================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3209 THOMAS L. OTTO, II, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Thomas L. Otto, II, appeals through counsel from a June 15, 2010, Board of Veterans' Appeals (Board) decision that denied (1) service connection for a right eye disorder (2) a disability rating in excess of 30% for post-traumatic stress disorder (PTSD) prior to August 30, 2007, and in excess of 50% thereafter, and (3) a disability rating in excess of 30% for a skin disorder. The appellant expressly declined to challenge the Board's assignment of a 50% disability rating for PTSD after August 30, 2007, but appeals the decision in all other respects. For the following reasons, the Court will affirm in part and set aside in part the Board's June 2010 decision, and remand three matters for further proceedings consistent with this decision. The appellant had active duty from March 2003 to December 2003, from October 2004 to January 2006, and from February 2009 to April 2010. Among the decorations he received for this service are the Purple Heart and the Combat Action Badge. The parties are agreed that a physical conducted in connection with his 2004 deployment to the Persian Gulf noted that he had "scleral cornea[1] and microphtalmos,"2 both of which areregarded as congenital defects. Record (R.)at 768. The appellant has stated that he was in close proximity to three IED [ improvised explosive device] explosions on two separate occasions during service. See R. at 780. Neither the Board nor the Secretary raises any challenge to these statements. In June 2006 he submitted an application seeking service connection benefits for a right eye disorder and a skin condition. Later that same year he applied for service connection benefits for PTSD. A November 27, 2006, rating decision granted service connection for PTSD, initially rated as 30% disabling. A May15, 2008, ratingdecision granted serviceconnection for"recurrentnodular MRSA[3] folliculitis," initially rated as 30% disabling. R. at 138. I. ANALYSIS A. PTSD Rating In the decision here on appeal, the Board acknowledged that "VA treatment records dated after [a] November 2006 [VA] examination indicated that the Veteran's PTSD symptoms had intensified." R. at 12. The Board nevertheless chose August 30, 2007, the date on which the appellant was admitted to a VA hospital, as the effective date for the increased disability rating of 50%. The appellant argues that his PTSD symptoms did not suddenly worsen on admission to the VA hospital and that the Board's statement of reasons or bases for selecting the hospital admission date as the effective date was inadequate. The Secretary concedes that this portion of the Board decision "should be remanded for the Board to adequately address when Appellant's PTSD symptomatology increased." Secretary's Brief at 4. After reviewing the evidence of record, the Court agrees with the concession. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board must provide a statement of reasons or bases for its In an examination report dated July 3, 2006, a VA examiner explained that " the [appellant] was born blind (scleral cornea) during the first 16 months of life[,] which resolved spontaneously." R. at 768. 2 "Microphtalmos" is"a developmental defect causing moderate or severe reduction insize of the eye. Opacities of the cornea and lens, scarring of the retina and chroroid, and other abnormalities may also be present." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1161 (32d ed. 2012) [hereinafter DORLAND'S]. 3 1 "MRSA" is an acronym for "methicillin-resistant Staphlyococcus areus." DORLAND'S at 1184. 2 decision to enablean appellant to understand the precise basis for its decision and to facilitate review in this Court). Accordingly, the Court will set aside the Board's determination that the criteria for a 50% disability rating were met only after August 30, 2007, for a more rigorous examination and discussion of the record evidence in the period after November 2006. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2011) (effective date of an award of increased compensation may be up to one year prior to receipt of an application for increased benefits). B. Right Eye Condition In his opening brief, the appellant argued that the Board's statement of reasons or bases for denying the right eye condition, which is difficulty in adjusting to darkness when coming indoors from bright light, was inadequate. He further argued that the Board ignored evidence that this condition is a symptom of traumatic brain Previous DocumentinjuryNext Hit (TBI), which should have led the Board to develop a claim for TBI. The Secretary responded that in so arguing the appellant expressly abandoned his claim for an eye disorder. He further pointed out that the appellant filed a claim for benefits for TBI after the Board issued its decision here on appeal, which claim has been denied but not yet appealed. He asserts that the Court thereforedoes not have jurisdiction to address anyarguments raisedin this case pertaining to the right eye condition. The claim presented to the Board in this case, however, was for "Right Eye Transient Blindness." R. at 808. Whether evidence of record indicating that this phenomenon is a symptom of TBI should have led the Board to develop a claim for TBI is an interesting but now irrelevant question. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Regardless of whether the appellant ever obtains service connection for TBI, however, he is entitled to adjudication of his claim for the condition manifested by the symptom of "right eye transient blindness," including the potential effective date of that claim. The Board relied on the July 2006 VA medical examination report with respect to service connection of the transient blindness. After noting the appellant's involvement with two IED incidents, the examiner, stated: After careful review of the patient's claim file and the medical literature, it is my opinion that there is not sufficient information to answer if this [ problem with adaption to dark is] related to the patient's service in the Middle East. It is possible 3 that the patient has side effects siderosis (retained metals) although there is not evidence of any retained metal on examination today. R. at 769-70. After obtaining a computerized tomography (CT) scan, however, the examiner wrote an addendum in which he further opined: "The patient does not have any evidence of intraocular or periocular foreign bodies. Therefore, it is my opinion that the patient has no evidence of siderosis and it is less likely than not that the veteran's visual problem is related to his military service." R. at 770. The Board merely reiterated this report and concluded that the evidence preponderated against service connection because "no medical evidence of record . . . counters the [July] VA examiner's assertions." R. at 9. A claim for service connection must generally be supported by evidence demonstrating "(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 disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is unclear from the examiner's report, and from the Board's reiteration, which element was regarded as unproven. The Court may infer that the examiner regarded the retention of metal as the most likely in- service eye injury to account for the appellant's transient blindness. Having performed a test to eliminate that possibility, he leaped to the conclusion that there was no link to military service. There is no indication that the examiner considered injury to the portions of the brain that process visual information or any other possible injury or disease that could cause the condition. Thus, it is unclear that the examiner obtained sufficient facts to reach his principal conclusion. Moreover, it is unclear whether he thought there was no in-service injury or there was no etiological link to an in- service injury. To the extent the examiner believed there was no in-service injury, however, it is not clear that such a conclusion would be consistent with the evidence of record. In this case, there is evidence that the appellant's right eye transient blindness manifested in service. During the demobilization process in Kuwait, on December 17, 2005, it was noted that the appellant had experienced "[right] eye transient blindness," and the examiner noted that the "[s]oldier just now decides to inform his unit that he has been experiencing some blindness from dark areas to bright 4 areas. He has been a truck driver for the past 12 months in Kuwait and Iraq." R. at 886. Without medical evidence it is not clear whether this in-service manifestation of transient blindness was due to or constituted a disease or injury. Significantly, the examiner's discussion offered no etiological explanation for the condition, and did not indicate he was even aware that the condition first manifested in service. This left the Board with no medical basis to evaluate and explain the occurrence of the transient blindness in service. To the extent that the Board based its conclusion on a lack of an in- service injury the Board was required to consider the implications of the presumption of soundness. "Decisions of the Board shall be based on the entire record in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation." 38 U.S.C. § 7104(a); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). "[E]very 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, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C. F.R. § 3.304(b) (2011). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. The presumption of soundness relates to the second Shedden requirement–the showing of in-service incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367(Fed. Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (application of presumption satisfies incurrence or aggravation element). A claimant must show that he or she suffered from a disease or injury while in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof. The Board made no finding whether the transient blindness is in any way related to the 5 congenital conditions noted on the 2004 entrance examination. As the Board acknowledged, the fact that one or more difficulties with vision were noted on the entrance examination does not mean that every vision problem that may have developed in service is attributable to a preexisting condition. See R. at 8 ("The [VA] examiner indicated that [the transient blindness] may not be congenital in nature, and may even be a symptom associated with explosions experienced by the Veteran during active service." R. at 8-9. Thus, the Court has no basis on which to conclude that the transient blindness was a preexisting condition noted on the entrance examination or that the in-service manifestation of transient blindness was not to be regarded as an in- service disease or injury. The Board must consider these issues on remand. To the extent that the examiner believed there was no nexus between the present transient blindness and anything that occurred in service–to include the in-service transient blindness– the examiner's reasoning is unsupported by medical reasoning. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301, 304 (2008). Thus, the Board's statement of reasons or bases, which amounted to a reiteration of the VA examination report, was inadequate to evaluate the service connection question under the Shedden factors. Furthermore, the examination report does not provide a medical basis for the Board to evaluate the possibility of service connection by continuity of symptomatology. See 38 C.F.R. § 3.303(b)(2011). Continuity of symptomatology may establish serviceconnection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. In this case, the occurrence of transient blindness was noted in service. There is also postservice medical evidence of the same symptomatology. The VA examiner offered no opinion, much less any reasoned medical explanation, why there is no nexus between his present disability and the postservice symptoms of transient blindness. Indeed, the two phenomena seem to be identical. Thus, the Board had no medical evidence to assess continuity of symptomatologyand did 6 not even discuss it. For the foregoing reasons, the VA examiner's report was insufficient to support the Board's conclusions as to the right eye condition, rendering its statement of reasons or bases inadequate. The Court will therefore set aside its denial of service connection for the right eye condition and remand the matter for further development to support an adequate statement of reasons or bases. C. Skin Condition In the decision here on appeal, the Board explained that the appellant's skin condition was rated by analogy to dermatitis or eczema. See 38 C.F.R. § 4.118, Diagnostic Code (DC) 7899-7806 (2011). To obtain the next highest disability rating under DC 7806, the Board noted, the evidence would have to show that more than 40% of the entire body or more than 40% of exposed areas were affected. The Board referenced a December 2007 VA examination report indicating that less than 1% of the appellant's body was affected by lesions and an August 2008 VA examination report indicating that none of the exposed areas of the body were affected. See R. at 16. The appellant does not challenge the Board's evaluation of the schedular rating and the Court's review of the record suggests no error. Therefore, the Court will affirm the Board's assignment of a 30% disability rating under DC 7806. TheCourt is dissatisfied,however,with theBoard'sdiscussionofanextraschedulardisability rating for the condition. The purpose of extraschedular evaluation under § 3.321(b) is "[t]o accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate." 38 C.F.R. § 3.321(b)(1) (2011). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. Although the Board does not have authority to assign an extraschedular rating, it must determine whether to refer a case for extraschedular evaluation whenever the issue is raised, either explicitly by the claimant or by the evidence of record. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). The Board's entire discussion of the matter was as follows: "Finally, the Board finds an extraschedular rating unwarranted here. Application of the regular schedular standards is found 7 practicable in this matter. Hence the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation." R. at 16 (citations omitted). TheCourt agrees with the appellantthattheforegoingdiscussion is inadequateasastatement of reasons or bases. The first question in consideration of referral for extraschedular rating is whether the schedular rating adequately contemplates the veteran's disability picture. See Thun, 22 Vet.App. at 115. "Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability [and] the established criteria found in the rating schedule for that disability." Id. The evidence of record indicates that the lesions from the appellant's MRSA folliculitis can reach softball size and appear on his thighs, buttocks, and groin. The appellant indicates that "these issues interfere with his abilityto work as a meter reader/custodian[,] which requirehim to walk long distances." R. at 248. The evidence further indicates that the appellant " has had many episodes of infected follicles" (R. at 255), including a hospital admission to treat a " golf-ball sized abscess" on the right upper thigh. R. at 256. On another occasion, the appellant was seen in the emergencyroom with a "large groin lesion that required incision and drainage." R. at 178. A VA examination report dated March 24, 2008, noted: "In the last year he [has] missed a total of [ one] month [of work] because of his folliculitis. In addition he has had to leave work [early on] 30-40 days . . . because lesions would crop up." R. at 180. As discussed above, DC 7806 assigns a schedular rating according to the percentage of body area covered by the skin condition, which suggests a cosmetic evaluation that would interefere with work only when the coverage becomes widespread. The Board does not explain how these rating factors reflect the type of localized lesions that interfere with basic walking and riding activities. Thesemanifestationsconstituteinterferencewith employment; whetherit risesto thelevelofmarked interference would be for the regional office to evaluate in the first instance. For the foregoing reasons, the Court concludes that the issue of extraschedular rating under 38 C.F.R. § 3.321(b) requires further scrutiny and discussion. The Court will therefore set aside the Board's finding with respect to extraschedular rating and remand for expanded treatment of that issue. 8 II. CONCLUSION On consideration of the foregoing, the Court AFFIRMS the Board's June 15, 2010, decision with respect to its assignment of a 50% disability rating for PTSD after August 30, 2007, and its assignment of a schedular disability rating of 30% for the appellant's service-connected MRSA folliculits; SETS ASIDE the Board's denial of service connection for a right eye condition, its assignment of August 30, 2007, as the effective date of an increase in disability for the appellant's PTSD, andits findingthattheappellant's casedid not warrantreferralforanextraschedulardisability rating; and REMANDS these matters for readjudication. On remand, the appellant will be free to submit additional evidence and argument as to his claims and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: November 30, 2011 Copies to: James G. Fausone, Esq. VA General Counsel (027) 9