Edward Harris, Claimant-Appellant v. Togo D. West, Jr., Secretary of Veterans Affairs

203 F.3d 1347, 2000 U.S. App. LEXIS 2305, 2000 WL 190347
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 17, 2000
Docket99-7057
StatusPublished
Cited by31 cases

This text of 203 F.3d 1347 (Edward Harris, Claimant-Appellant v. Togo D. West, Jr., Secretary of Veterans Affairs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edward Harris, Claimant-Appellant v. Togo D. West, Jr., Secretary of Veterans Affairs, 203 F.3d 1347, 2000 U.S. App. LEXIS 2305, 2000 WL 190347 (Fed. Cir. 2000).

Opinion

BRYSON, Circuit Judge.

Edward Harris, a veteran, appeals from the judgment of the Court of Appeals for Veterans Claims, which held that a problem with his eyesight was not shown to be service connected. We affirm.

I

Mr. Harris served on active duty in the United States Army from August 1949 to November 1952. In 1959, he made a claim of service connection for an eye condition known as retinitis pigmentosa. The Board of Veterans’ Appeals denied his claim at that time, and in 1978 and 1988 the Board denied requests to reopen his claim. In 1989, Mr. Harris requested that his claim of service connection for his retinitis pig-mentosa be reconsidered. In 1992, the Board granted reconsideration of the 1959, 1978, and 1988 decisions, and after several years of proceedings before the regional office and the Board of Veterans’ Appeals, the Board requested the opinion of a medical expert from a Veterans Affairs Medical Center. Dr. Frank Rieger, Chief of Ophthalmology Services at the Harry S. Truman Veterans Affairs Medical Center, subsequently submitted a report in which he concluded that Mr. Harris suffered from retinitis pigmentosa prior to August 1949 when he was inducted into military service and that the decreased visual acuity he experienced during his service was consistent with the natural progression of the disease.

Following the receipt of Dr. Rieger’s report, the Board of Veterans’ Appeals in 1996 again denied service connection for Mr. Harris’s condition. The Board concluded that even though retinitis pigmen-tosa was not recorded on Mr. Harris’s service entrance examination, “the evidence clearly and unmistakably demonstrates that retinitis pigmentosa pre-exist-ed the veteran’s entry into active service,” and that “any increase in retinitis pigmen-tosa during active service was due to the natural progress of that condition.”

Mr. Harris appealed to the Court of Appeals for Veterans Claims, which af *1349 firmed the Board’s decision. The court noted that under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304(b), a veteran is entitled to service connection for a disease that was present in service unless the disease was noted in an examination report at the time of entrance into service, or unless clear and unmistakable evidence shows that the veteran contracted the disease prior to service and that the disease was not aggravated by service. The court further explained that the government bore the burden of proof to rebut the presumption of sound condition upon induction, ie., to show that the veteran incurred the disease or injury in question prior to service and that the disease or injury was not aggravated by service.

It was undisputed that Mr. Harris’s entrance examination did not note retinitis pigmentosa. For that reason, Mr. Harris was entitled to the presumption of sound condition and the government was required to show by clear and unmistakable evidence that Mr. Harris suffered from retinitis pigmentosa prior to his entry into the service and that his condition was not aggravated by service.

After analyzing the evidence of record, the court concluded that the government had met its burden of rebutting the presumption of sound condition. The court noted that at the time of his diagnosis in 1951, Mr. Harris reported that he had an eight-year history of poor night vision, and various post-service medical records noted that he had had symptoms of night blindness from an early age. The court further noted that Dr. Rieger had concluded from all the medical evidence in the record that Mr. Harris had developed retinitis pigmen-tosa before entering the service and that, although his condition worsened during the period of his active duty, the worsening of his condition was simply the product of the natural progression of the disease. The court found that the presumption of soundness was rebutted by the evidence in the record; in particular, the court noted that “Dr. Rieger’s unequivocal and uncontra-dicted opinion is itself clear evidence to the contrary and is supported by the repeated assertions that the veteran had suffered from night blindness since childhood.” The court therefore affirmed the decision of the Board of Veterans’ Appeals.

II

On appeal to this court, Mr. Harris does not directly challenge the factual conclusion of the Court of Appeals for Veterans Claims that the onset of his retinitis pig-mentosa occurred prior to his entry into military service. Instead, he makes the legal argument that the statutory presumption of soundness may be rebutted only by contemporaneous preservice clinical evidence or recorded history showing that the veteran was suffering from the disease or condition in question before entering military service. The presumption cannot be rebutted, Mr. Harris argues, by a medical professional’s after-the-fact opinion regarding the probable onset of the disease or condition.

In making this argument, Mr. Harris relies on the statute that sets forth the presumption of soundness, 38 U.S.C. § 1111, but the statute does not support him. The statute simply says that in cases in which the presumption of soundness applies, it may be rebutted only “where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by [the veteran’s military] service.” Id. The statute says nothing about the kind of evidence that can be used to rebut the presumption. All that the statute requires is that the evidence, whatever it may be, must lead, clearly and unmistakably, to the conclusion that the injury or disease existed before the veteran entered the service.

The regulation that tracks and elaborates on the statutory presumption of *1350 soundness, 38 C.F.R. § 3.304(b), likewise does not support Mr. Harris’s argument. In fact, it provides strong support for the contrary view. The regulation states that the history of preservice conditions recorded at the time of examination “will be considered together with all other material evidence in determinations as to inception.” 38 C.F.R. § 3.304(b)(1). The regulation further emphasizes the breadth of the required inquiry:

History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account.

38 C.F.R. § 3.304(b)(2).

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Bluebook (online)
203 F.3d 1347, 2000 U.S. App. LEXIS 2305, 2000 WL 190347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edward-harris-claimant-appellant-v-togo-d-west-jr-secretary-of-cafc-2000.