Dale S. Horn v. Eric K. Shinseki

25 Vet. App. 231, 2012 WL 2355544, 2012 U.S. Vet. App. LEXIS 1264
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 21, 2012
Docket10-0853
StatusPublished
Cited by63 cases

This text of 25 Vet. App. 231 (Dale S. Horn v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dale S. Horn v. Eric K. Shinseki, 25 Vet. App. 231, 2012 WL 2355544, 2012 U.S. Vet. App. LEXIS 1264 (Cal. 2012).

Opinions

DAVIS, Judge:

U.S. Army veteran Dale S. Horn appeals through counsel from a November 18, 2009, Board of Veterans’ Appeals (Board) decision that denied service connection for a left hip disorder. The Board acknowledged and the parties agree that the appellant’s induction examination report noted no hip condition and therefore the presumption of soundness applies.

The principal issue before the panel is whether a medical examination board (MEB) report containing only an unexplained “X” in a box on a form can constitute clear and unmistakable evidence of lack of aggravation. For the following reasons, the Court holds that such evidence is insufficient to rebut the aggravation prong of the presumption of soundness. Accordingly, the Court will reverse the Board’s November 2009 decision insofar as it pertains to the rebuttal of the aggravation prong of the presumption of soundness and remand the claim for a hip condition for further proceedings consistent with this decision.

I. BACKGROUND

The appellant had one month and three weeks of active duty service, from October 1, 1970, to November 24, 1970. His induction examination report included no indication of any hip condition or other defect of the lower extremities. The report indicated that he was fit for induction and gave the highest rating in each of the PULHES categories1 except his eyesight.

During the first three weeks of basic training, however, he complained of left hip pain. In a report dated October 29, 1970, Army physicians diagnosed Legg-Calve-Perthes disease2 (hereinafter Legg-Perthes disease) and recommended a medical evaluation board (MEB) “for consideration of separation from the Service under the provisions of AR 635-200,” [234]*234which pertains to “Separation for Convenience of the Government.” Record (R.) at 234. The MEB report, dated November 17, 1970, stated that the appellant was medically fit for retention under then-current medical fitness standards, but diagnosed Legg-Perthes disease, indicating with an “X” that the condition existed pri- or to service and was not aggravated by active duty. See R. at 230. The medical board also recommended separation under “UPAR 635-200, chapter 5” (R. at 231), and the appellant’s Form DD-214, Certifícate of Release or Discharge from Active Duty, confirms that separation was under this provision.

This case was before the Court previously but was dismissed pursuant to a joint motion for remand (JMR). In the JMR, the parties agreed that remand was in order so that the Board could properly analyze the case under the presumption of soundness.

II. CONTROLLING LAW

A. The Presumption of Soundness

“[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....”3 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b) (2011) (implementing regulation for section 1111). 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. Deminski, 1 Vet.App. 225, 227 (1991).

The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111 (“or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service”); Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. This statutory provision is referred to as the “presumption of soundness,” the rebuttal of which requires proof both as to preexistence (the preexistence prong) and lack of aggravation (the aggravation prong).

There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service.4 This provision is known as the “presumption of aggravation.”

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) (citing Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)).5 The [235]*235clear-and-umnistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet.App. 228, 232 (1991)); see also Vanerson, 12 Vet.App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[0]nly an inference that is iron clad and copper riveted can be ‘unmistakable.’ ”). If there is clear and unmistakable evidence to show that the veteran’s disability was both preexisting and not aggravated by service, then the veteran is not entitled to service-connected benefits for the preexisting condition. Wagner, 370 F.3d at 1096.

Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed.Cir. 1998) (“When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption.”).

In presumption of soundness cases, the Secretary may show a lack of aggravation by establishing, with clear and unmistakable evidence, that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress” of the preexisting condition. See Wagner, 370 F.3d at 1096. In Wagner, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the term “aggravation” has the same meaning in sections 1111 (presumption of soundness) and 1153 (presumption of aggravation). Id. Although the same word “aggravation” has a common meaning in both instances, this linguistic overlap does not signal that the presumption of aggravation in Section 1153, with its attendant burden of proof rules, is triggered in presumption of soundness cases once preexistence of the injury or disease has been established.6

Rather, the aggravation analysis proceeds under the aggravation prong of the presumption of soundness.

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Bluebook (online)
25 Vet. App. 231, 2012 WL 2355544, 2012 U.S. Vet. App. LEXIS 1264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dale-s-horn-v-eric-k-shinseki-cavc-2012.