Kevin T. Donnellan v. Eric K. Shinseki
2010 U.S. Vet. App. LEXIS 2107
| Vet. App. | 2010Background
- Donnellan appeals a March 22, 2007 Board decision denying service connection for residuals of a perforated small bowel.
- Appellant is an Army National Guard member with active duty for training from May 30 to June 5, 1998.
- Preexisting colon cancer and related surgeries occurred in 1996–1998; postoperative complications included an intra-abdominal abscess and a fistula.
- In June 1998, during ACDT, he underwent emergency surgery for a small bowel perforation with later fistula management.
- The Board remanded in 2004 for an opinion on aggravation beyond natural progression; the resulting reports were deemed inadequate, leading to the present appeal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Status as veteran required for benefits based on aggravation during ACDT | Donnellan argues status as veteran is met if aggravation occurs | Secretary argues veteran status requires veteran-duty (not just ACDT) and presumption does not apply | Aggravation must show permanent increase beyond natural progress during ACDT; presumption does not apply to ACDT for veteran status |
| Burden of proof for establishing veteran status in ACDT aggravation | Donnellan seeks shifting burdens under 1153 | Secretary argues no burden shift; claimant bears proof of both aggravation and beyond natural progress | Claimant bears burden to prove both aggravation elements; no 1153-style presumption for ACDT veteran status |
| Definition of 'aggravated in the line of duty' under 101(24) and 1153 | Donnellan asserts same meaning as 1153; requires increase in disability | Secretary contends both increased disability and beyond natural progression are required | Aggravated in line of duty requires permanent increase beyond natural progress during ACDT; same standard as 1153 |
| Standard of proof for veteran status determination | Donnellan argues benefit-of-the-doubt should apply to veteran status | Secretary argues no special standard; preponderance applies | Benefit of the doubt applies to veteran-status question; approximate balance favors the claimant |
| Stegall remand compliance | Board failed to obtain adequate IME addressing remand questions | Remand compliance was substantial, not absolute | Remand violated Stegall; Board must obtain a proper medical opinion on remand on aggravation beyond natural progress |
Key Cases Cited
- Smith v. Shinseki, 24 Vet.App. 40 (2010) (presumption not applicable to ACDT claims for veteran status)
- Paulson v. Brown, 7 Vet.App. 466 (1995) (distinction between active duty and active duty for training for veteran status)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (line-of-duty concept; injury incurred during service deemed in line of duty)
- Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994) (statutory language interpretation for aggravation)
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (presumption of aggravation and burden shifting)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (benefit-of-the-doubt standard)
- Gardner v. Shinseki, 22 Vet.App. 415 (2009) (VA duty to assist; veteran-status considerations)
- Stegall v. West, 11 Vet.App. 268 (1998) (remand orders require substantial compliance)