*3 1, 1970, 24, to November 1970. His LANCE, induc- Before DAVIS and tion examination report included no indica- SCHOELEN, Judges. tion of any hip condition or other defect of DAVIS, Judge: lower extremities. The indicat- ed Army that he was fit for gave U.S. veteran Dale S. Horn induction and ap- highest peals through rating in each of the counsel from a November PULHES 18, 2009, categories1 except eyesight. Board of Appeals Veterans’ (Board) decision that denied service con- During the first three weeks of basic hip nection for a left disorder. The Board however, training, complained he of left acknowledged parties and the agree that hip pain. 29, In a report dated October the appellant’s induction examination re- 1970, Army physicians diagnosed Legg- port hip noted no condition and therefore (hereinafter Calve-Perthes disease2 the presumption of applies. soundness disease) Legg-Perthes and recommended principal (MEB) panel issue before the medical evaluation board “for whether a medical examination board consideration of separation from the Ser (MEB) report containing only 635-200,” an unex- vice under the provisions of AR rating system 1. widely sively PULHES is a assign- em- more severe restrictions on the ployed by physicians armed services in exami- given. ments that the inductee Id. reports separation. nation for induction and "physical The "P" capacity stands for or "Legg-Calve-Perthes 2. disease" is "osteo- stamina”; extremities”; "upper "U” for capitular epiphysis chondrosis of the extremities”; "L” for "lower the "H” for femur.” Dorland’s Illustrated Medical Dictio- ear”; "hearing "eyes”; the "E" for (32d 2012). "epiphysis” 537 ed. An nary "psychiatric.” the "S” for See McIntosh v. expanded long "the articular end of a bone.” Brown, (1993). rating A "capital epiphysis" Id. at 634. The is "the any categories, of "1” in highest of the six epiphysis long at the head of a bone.” Id. rating, means that the inductee’s condition growth "Osteochondrosis” is "a disease of the category should not result in limita- begins or ossification centers in children that military assignments. Ratings tions in Id. degeneration as or necrosis and is followed from "2” "4” indicate the existence of regeneration or at recalcification." Id. 1345. physical progres- conditions that will result in service, presumed “Separation entry for into a veteran is pertains which Conven (R.) Record in every respect. ience of the Government.” to have been sound report, The MEB dated November Wagner Principi, 17, 1970, appellant (Fed.Cir.2004); Deminski, stated that Bagby v. Vet. then-cur medically fit for retention under App. standards, but diag rent medical fitness The burden then falls on to rebut VA disease, Legg-Perthes indicating nosed of soundness clear and pri-
with an “X” that the condition existed
unmistakable evidence that an
or to service and was not
*4
manifested in service was both
disease
R.
The
duty.
active
at 230.
preexisting
aggravated by
and not
service.
under
separation
board also recommended
(“or
§ 1111
clear and
See 38 U.S.C.
where
(R.
635-200,
231),
5”
chapter
“UPAR
unmistakable evidence demonstrates that
DD-214,
Form
and
Certifí
injury
accep
or disease existed before
or
from Active
Discharge
cate of Release
tance
aggra
and enrollment and was not
Duty,
separation
confirms that
was under
service”);
Wagner,
vated
370 F.3d at
provision.
this
1096;
1
Bagby, Vet.App. at 227. This
previous-
was before the
This case
statutory provision is referred to as the
ly
pursuant
joint
but was dismissed
to a
soundness,”
“presumption
of
rebuttal
(JMR).
JMR,
motion for remand
In the
requires proof
of which
preexis
both as to
parties agreed
that remand was in
(the preexistence
tence
lack
prong) and
of
properly
order so that
the Board could
(the
aggravation
aggravation prong).
analyze
presumption
the case under the
of
distinctly
There is a related but
differ-
soundness.
statutory
pertains
ent
provision
II. CONTROLLING LAW
a preexisting
cases
which
condition is
noted on an entrance examination and the
Presumption
A. The
of Soundness
claimant contends that this
condition
“[E]very veteran shall be taken to
provision
in service.4 This
is
have been in sound condition when exam
“presumption
aggrava-
known as the
of
ined,
service,
accepted, and enrolled for
tion.”
defects, infirmities,
except
as
disor
examination,
Clear and unmistakable evidence means
at the time of the
ders noted
“
the evidence
‘cannot be misinter
acceptance,
and enrollment....”3
38
misunderstood, i.e.,
1111;
preted
it is
§
unde
U.S.C.
see also 38 C.F.R.
”
3.304(b) (2011)
Shinseki,
Quirin
Vet.App.
§
batable.’
v.
22
(implementing regulation
1111). Therefore,
(2009)
West,
390,
(citing
for section
when no
396
v.
Vanerson
(1999)).5
254,
preexisting
Vet.App.
medical condition is noted
258-59
“History
preservice
specific finding
3.
existence of condi-
there is a
that the increase in
disability
progress
at the time
tions recorded
exam-
is due to the natural
[entrance]
§
ination does not constitute a notation of such
disease.” 38 U.S.C.
1153.
together
conditions but will be considered
Secretary’s regula-
5. The Court notes that the
with all other material evidence in determina-
employs
phrase
tion
"obvious or mani-
inception.”
tions
as
38 C.F.R.
interpretation
fest” to describe
of clear
3.304(b)(1) (2011).
§
and unmistakable evidence. See 38 C.F.R.
3.304(a).
argue
preexisting
"A
or disease will be con-
does
sidered to have been
active
that this standard differs from the character-
naval,
service,
military,
or air
where there
ization of “undebatable”
the Court has
service,
disability during
precedents.
an increase in
unless
advanced and confirmed in its
disability
clear-and-umnistakable-evidence standard
“increase in
due
[was]
Brown,
Laposky
one.
v.
4 natural
progress”
preexisting
is an “onerous”
condi-
Vet.App.
(citing
Wagner,
Akins
tion. See
In of soundness vation. If to produce fails Secretary may aggrava show a lack of clear and of unmistakable evidence lack of by establishing, tion with clear and unmis aggravation, the claimant is entitled to a evidence, takable in finding aggravation there was no of in-service of the in disability during preexisting crease service or that condition. fact, he concedes that the evidence under- dence that there was no increase in or, lying preexistence a determination as to in service increase was due to the aggravation lack of must be undebatable. See progress Wagner, natural of the disease. 370 Secretary’s perceives Brief at 3. The Court no 1153, however, at Under section F.3d 1096. divergence in the standards. appellant showing bears the burden of preexisting that his condition worsened in important An distinction between section service. Id. Once the veteran establishes wor aggravation prong presumption 1111’s sening, the burden shifts to the presumption of soundness and section 1153’s show clear and unmistakable evidence that aggravation proof. of is the burden of Under worsening the condition was due to the of 1111, section the burden is on the Govern progress natural of the disease. Id. ment to clear and evi show unmistakable Scope present disability injury
B. Standard and
of Review
and the disease or
incurred
service.”
The
de novo a
Court reviews
Board
1163,
Principi,
Shedden v.
381 F.3d
1166-
concerning
adequacy
decision
(Fed.Cir.2004).
presumption
of
presumption
evidence offered to rebut the
require
soundness relates to the second
soundness,
giving
while
deferential
showing
ment —the
of in-service incur
treatment
underlying
Board’s
factu
injury.
rence or
of a disease or
aggravation
al findings and determinations of credibili
Shinseki,
See Holton v.
West,
ty.
Miller v.
(Fed.Cir.2009);
see also Maxson v.
(1998);
Quirin, 22 Vet.App.
see also
West,
12 Vet.App.
(applica
example
396. One
of a factual determina
presumption
aggravation
tion of
satis
might
tion the make is whether the
element).
aggravation
fies incurrence or
in question
condition
was noted on the
presumption
In order to invoke the
entrance
report.
examination
soundness, a claimant must show that he
scope
the Court’s de novo review
or she
injury
suffered from a disease or
whether the
has been rebut
Holton,
while in service.
Generally, in order to establish ser injury. appellant disease or must still vice connection for a present disability, disability demonstrate a current and a nex- (1) “the veteran must show existence us between his current and the (2) of a present disability; Holton, in-service incur injury or disease in service. See 1367; aggravation injury; rence or of a disease or Dye Mansfield, 557 F.3d at (Fed.Cir.2007) (affirm- a relationship causal between the F.3d 1292-93 8, 1985, ing finding this that the presump- February Court’s ed notes “an old deform- tion of soundness does not eliminate the ity of the femoral head compati- and neck need to demonstrate causal connection Legg-Perthes ble with an old disease.” R. between a veteran’s current condition and x-ray at 153. Another report, x-rays for injury). his in-service 27, 1989, taken January on or about *7 “consistent with” old Legg-Perthes dis- years] old.” R. at 234. Finally, report ease, which is inferential evidence at best. 16, 2006, August dated from a Dr. Potter argues He further that none of the in- of the Department Texas of Criminal Jus reports service medical require- fulfill the tice noted that appellant the had been 3.304(b) § ments of 38 C.F.R. for detailed incarcerated since 1985 and noted various analysis medical relating all medical and complaints pain of with Legg- associated other known accepted facts to Perthes Among disease. its other nota principles, including those regarding the tions, the states that in April 1991 character and course of the disease. appellant the long “claimed a life deformi ty of the left femoral requested head and concluded, This previously Court has pain control.” R. at 170. however, that, law, “as a matter of ... the
The record also contains some clinical presumption of soundness ... [could be] support that tends to a finding rebutted clear and unmistakable evi- preexisted the condition service. An dence consisting appellant’s of own [the] x-ray report, response furnished in preservice an admissions ... of [disability].” 29, 1970, request Brown, October states: “Severe Doran v.
deformity [illegible] of left and femoral favorably The Federal Circuit cit- Doran, head consistent with Legg[-]Perthes old ed and stated that a later medical disease.” R. at An x-ray report 232. dat- based on statements made the history severity during the of his service on the basis of preservice
veteran about
may be
to rebut
the
pertaining
condition
sufficient
all the evidence of record
presumption
of the
of
preexistence prong
disability prior
the manifestations of the
soundness, notwithstanding the lack of
to, during,
subsequent
to service.
clinical
or re-
contemporaneous
3.306(b).
§
38 C.F.R.
West,
history.
corded
See Harris
however,
previously,
R. at 7-8. As noted
(Fed.Cir.2000).
Thus, in
F.3d
presumption
aggravation
neither the
any
contention that
absence
regulation implement-
section 1153 nor the
appellant never made the statements at-
3.306,
ing
statutory provision,
has
him,
tributed to
those statements alone
an
application to
under
may
preexistence prong
rebut
of the
aggravation prong
presumption of
soundness.
provi-
soundness in section 1111. These
only
The other evidence of record
rein-
apply
sions
one situation: where
appellant’s
forces the
statements as to
preexist-
the induction examination notes a
onset of the disease. The in-service medi-
ing
alleged
condition that is
to have been
cal records indicate that the condition of
aggravated.
Wagner,
ferred to a with a hip tion applies and the burden falls on Thus, deformity. See R. at (em- aggravation.” the veteran to establish agrees with the Board that the evi- added)). phasis When the dence of record constitutes clear and un- however, applies, soundness the burden mistakable evidence that remains on the prove lack of Legg-Perthes preexisted disease service. aggravation the claimant has no bur- conclusion, however, That does end the produce aggravation. den to evidence of analysis. Aggravation Prong B. The conflating provisions, these two Presumption of Soundness recognize Secretary’s Board failed to prove aggravation. burden to lack of began The Board its discussion of began analysis by noting its “that the law of with an aggravation excursion competent there is no evidence of worsen provisions concerning pre into the *8 ing preexisting hip of the Veteran’s disor sumption aggravation. of during very period brief of der his active A preexisting injury or disease will be 1, 1970, from to November service October aggravated by considered to have been 24, 1970.” R. at 11. The further Board active service where there is an increase that treatment noted records are service, “[s]ervice disability during such unless entirely negative findings reports for or of specific finding there is a that the in- injury during left Id. hip service.” Addi in disability crease is due to the natural tionally, it significant the Board found that progress of disease. 38 U.S.C.A. 3.306(a). 1153; proceedings “the of Medical Board § § 38 Clear C.F.R. (obvious manifest) contemporaneous includes in-service medi and unmistakable or physician cal required pre- evidence is to rebut was sumption aggravation pre- Legg-Perthes of where the the Veteran’s disease aggravated during service underwent an increase service.” Id. Preliminarily, the notes that there role of speculate the Court or the Board to requirement specific injury is no of a or injury aggravat- either that an would have preexisting trauma in order for the condi- disease, ed the or that the of rigors basic Rather, tion to have aggravated. been training aggravated would not have may service connection be awarded for underlying disease. aggravation preexisting of a disease or The Board’s reliance on the absence of
injury during service. See 38 C.F.R. record evidence worsening is flawed for 3.303(a) (2011). § aggravation It is lack of First, at least three general reasons. as a prove, must not lack of claim, matter assessing a “[w]hen injury. an may not consider the absence of dissenting colleague Our encroaches on negative evidence as substantive evi physician the role of a suggests when he Shinseki, Buczynski dence.” 24 Vet. that “the absence of an injury in-service (2011).7 Second, App. and more to likely appel- tends make it less that [the fundamentally, presumption in the condition lant’s] than if he context, soundness such reliance effects an injured had left hip service.” Dis- impermissible pre burden shift. If the at sent 247. There is no medical evidence sumption applies, of soundness and the in the record that addresses the effect of SMRs aggrava do not reflect the fact of an Legg-Perthes on disease. For condition, tion of a preexisting reliance on instance, if the appellant had fallen and this requires ap absence of evidence hip, bruised the it is not clear that pellant generate postservice medical evi occurrence would have increased likeli- prove aggravation dence to that is to hood of aggravation Legg-Perthes dis- presumed be under section 1111. As not ease, which has do with deterioration of above, however, ed the claimant has a top Similarly, of the femur. there is prove severity burden to an increase no medical evidence of record that discuss- aggravation es the basic characteristics cases. disease 1153; Wagner, how it or be have been U.S.C. F.3d rigors cases, training. of basic It is not the 1096. In of soundness majority personnel, aggravation preexist- 7. The believes its here of a considered, entirely ing ordinarily consistent with the framework that condition would dissenting colleague elegantly much our has so less recorded. set Shinseki, Buczynski forth in and in Kahana v. Maxson, supra, dissent also relies cases, In both it is argue postservice the lack of treatment that, matter, general clear as a the absence of determining records can be considered when negative evidence is not substantive evidence. preexisting aggravat- whether a condition was majority agrees While the that this is not an ed service. Maxson does state that the rule, proper absolute there must be "a foun- lack of treatment records can be considered dation ... to demonstrate that such silence factors, along including with other relevant tendency prove disprove has a a relevant the "nature or dis- and course disease fact.” Post at 248. Both cases reference Fed- ability, elapsed the amount of time that since *9 803(7), service, eral Rule of Evidence to the effect that any military other relevant entry may Here, "the absence of an in a record problem facts.” Id. at 1333. is against evidence the existence of a fact if such any evidence con- that the record is bereft ordinarily a fact would be recorded.” cerning Legg- Buc- the nature and course of 224; Kahana, zynski, Vet.App. at Vet. independent medi- Perthes disease. Without J., (Lance, App. concurring). regarding at 440 Here cal evidence the nature and course foundation, condition, evidentiary there is no or even a of the the Court is left logical suppose, significance speculate reason to that in the context of the lack as to corpsman postservice of treatment or service treatment for the condition. other Secretary prove port finding. agrees
the burden is on the such a The Court aggravation by report lack of clear and unmistak with the dissent that an MEB “that Finally, appellant explaining able does not contain a narrative evidence.8 Id. why panel the doctors on the reached correctly argument noted at oral that preexisted conclusion that a condition ser- there no the degree was evidence of vice aggravated by and was not it will severity Legg-Perthes of his condition be necessary deny never contain the detail diagnosis first when he age tween its was short, a claim.” at In Post such evi- development pain six and the when he woefully dence falls short of clear and training. was in basic The there unmistakable evidence. fore had no for assuming basis that hip pain notations of in the SMRs did not In supplemental briefing the Secre- signal worsening severity. or increase in tary further conceded that there are no special reliability arising indices of from case, In this affirmative evi- the manner in which an MEB report is pertaining aggrava- dence to the issue of prepared. There is therefore no reason form, tion was a box on the MEB which that the Court should not follow its case- contained an “X” that the indicating condi- unexplained conclusory law that such an aggravated by tion had not been active weight is entitled to no in a ser- duty. There no was or medical vice-connection context. See Nieves-Rod- explanation accompanying this conclusion. Peake, riguez 22 Vet.App. report provides no means of determin- (2008).9 Nieves-Rodriguez, the Court ing whether the MEB found that there articulated, fully observed that “[i]t is disability was no increase in or found that reasoning sound for the conclusion ... any increase was due to the natural prog- that probative contributes value to a medi- ress of the Wagner, disease. See cal opinion.” Id. at 1096. As to the possibility, latter report MEB contains neither a finding citation, suggests, The dissent without in severity increase was due to that the endorsement of the unexplained disease, the natural progress of the nor unsupported conclusion three ser- any analysis sup- of medical evidence to vice it physicians probable “makes more appellant argues 8. The system further that the fact he condition. The PULHES teaches that discharged military a soldier was from service after a clean continue service Thus, duty profile. under a limited the fact prima entrance examination constitutes facie appellant that the was fit for retention —in the disability. evidence of an increase in He rea- unexplained judgment signatories sons that because there is no evidence of the report the MEB evidence no as to the disease, progression natural he enti- —is aggravation existence of or the lack thereof. finding aggravation. tled to a Because report medically MEB found him fit for reten- Mansfield, 9. The cites Stover v. tion, however, discharge the mere fact of does proposition for the necessarily not constitute of worsen- finding Physical Navy of a Ex- U.S. ing. finding Neither does evi- constitute (PEB) amination Board however, against aggravation, dence as service to be suggests. dissent Post at 245-46. record However, weighed by the Board. there is no appellant longer indicates that the no met the proceeding PEB record of a in this procurement standards for into induction Assuming case. the MEB evidence of 234). (R. anything, armed services If aggravation analogously lack of is to be change rating however, in the PULHES from "1” at weighed, on these facts the MEB *10 (R. 221) separation report any weight. enlistment to "P3” at at probative is not entitled to worsening hip Nieves-Rodriguez, would tend to indicate a at 304. that the conclusion is true than if evidentiary showing and of careful single if panel doctor were involved or correlation all material facts, with of were regard divided.” Post 245. As a matter of due accepted to medical princi- mathematics, however, any multiple ples of pertaining history, to the manifes- Thus, tations, nothing nothing. course, is still an accretion clinical and character of opinions, medical each of which particular injury is enti- or disease or resid- tled to in weight right, no its own cannot uals thereof. probative
add value to the ultimate medi- (2) History conforming accepted cal conclusion. principles given medical should be due consideration, conjunction in with basic view, In the Court’s the concerns for data, clinical probative and be accorded articulated, reasoning sound underlying value consistent with accepted medical Nieves-Rodriguez are at their zenith when evidentiary and principles relation to attempts carry VA its burden of rebut- value consistent accepted with medical ting either prong of the presumption of incurrence, relating evidence symp- soundness clear and unmistakable evi- disease, toms and course of injury or dence. The level of reasoning analysis and including official and other records made appropriate to that amply task is to, subsequent or to ser- illustrated in Secretary’s own regula- vice, together with all lay other and tion: medical concerning evidence incep- (b) Presumption Soundness. tion, development and manifestations of veteran will be considered to have been particular condition -will be taken examined, in sound condition when ac- into full account. cepted service, and enrolled for except added). (emphasis C.F.R. 3.304 Con- defects, infirmities, as to or disorders trary regulatory provision, to this there is service, noted at entrance into or where single not a accepted statement of medical (obvious clear and unmistakable or man- principles, analysis much less an ifest) evidence demonstrates that an in- clinical factors and other in light jury or disease existed prior thereto and of those principles, report the MEB or by such service. anywhere else in the record. Only such conditions as are recorded in The dissent offers the proposition that reports examination are to be consid- detail, “if lacking then it ered as noted. given weight some based (1) History preservice existence of analysis amount of information and it con- conditions recorded at the time of ex- here, tains.” problem Post at 246. The amination does not constitute a notation however, is that the MEB report is bereft of such conditions but will be consid- information useful to together ered with all other material Thus, the Court’s review of its conclusion. determinations as incep- by the dissent’s reasoning, report own tion. Determinations should not he probative has no value. based on judgment medical alone as Furthermore, distinguished accepted from the lack of discussion as principles, or history alone without to how the conclusions on the MEB regard pertinent to clinical prevents to were arrived at the Board and factors character, the basic origin develop- from properly assessing whether ment such They disease. those conclusions were based on a suffi should be on thorough analysis evidentiary based cient basis. See Nieves-Rodr *11 support further medical evidence to (requiring at 302 the obtain
iguez, Vet.App. regulatory analysis, the which it required that medi the to ensure Board and Court declined to do in this instance. expressly are made on the basis of suffi opinions cal application cient facts or data and argue also not do to that It will The Secre principles). medical reliable clear and report MEB becomes unmistak- however, argues judgment that “the tary, fact it by able evidence virtue of the that professionals comprise medical who only contemporaneous per- evidence opinion MEB that an can be rendered aggravation. By now it should taining or more medical issues based any on one be clear that the veteran has no burden to con upon the extant evidence is medical although produce aggravation, evidence of independently clusion which cannot be sec Instead, may the veteran choose to do so. by either the Board or this guessed ond aggravation pro- the evidence of lack of Secretary’s Supplemental Brief at Court.” by Secretary duced must rise Nicholson, fact, citing 16. v. Cox level of clear and unmistakable evidence (2007), merit, Secretary any on its own without reference to suggestion countervailing further offers the that “it evidence. MEB presumed should be found It is therefore untenable for the Secre- it sufficient evidence on which to
that had tary to advocate affirmance of the Board’s base conclusions.” Id. at [its] decision when the affirmative evi- 'support unexplained dence in is an “X” on physician’s The assessment whether the a form. Affirmance on such a basis would report supported medical require accept the Board and the Court to reached, to the conclusion pertains that conclusion, judgment, a bare or medical however, part of what significant is a contrary to established caselaw and the does on de novo review. Without Secretary’s regulation. own review, the be in the such Court would Development C. Clear position stamping may of rubber what Evidence bare, Unmistakable nothing more than a ad hoc asser- Secretary attempts tion. The to extend doubt, any lingering If there is let it be opinion to cover matters to which that Cox adjudicators deny clear not presumed was never directed. The com- involving presumption claims of sound- personnel to an petence of medical render MEB reports containing ness based not create opinion does Rather, analysis. supporting no VA and analysis underlying the medical an the must seek other evidence com- Board opinion particular in a case is correct. appropriate with the evidentia- mensurate ry standard of clear and unmistakable evi- Secretary argues that factors dence. factors, regulation e.g., listed in the clinical thorough analysis, principles, need discharge reports If the SMRs and lack report, in the MEB but rather appear aggravation sufficient content to rebut the to the determinations to be made
pertain soundness, prong argument rings the Board. This hol- is, aggravation, lack of prove however, low, in view of the fact that the Secretary op- and the Board have several may rely only independent medi- argument, At tions. oral cal to make its determinations. authority conceded that he would have the Derwinski, Vet.App. physician obtain an from a VA See Colvin discharged If the MEB does not con- when a veteran is from service discussion, Alternatively, medical reasons. tain sufficient the Board must for VA *12 may subpoena preservice Remedy medical records D. people and interview who were familiar After VA and the Board have had a full
with the claimant’s physical
condition
record,
to
opportunity
develop
howev-
5711;
§
to service. See 38 U.S.C.
38 er,
basically
the Court’s role is
to assess
(2011).
evidence,
§ 2.2
C.F.R.
Such
when
Secretary
whether the
has succeeded in
competent physician, may
evaluated
a
instance,
carrying his
In
burden.
preservice
enable the establishment of a
Secretary
Court holds that
to
failed
medical baseline for
the condition for
carry
proving
his burden of
lack of aggra-
which
sought.
service connection is
38Cf.
vation
clear and unmistakable evidence.
§
comparison
C.F.R.
3.310
of Reversal,
remand,
not
therefore
ap-
is
preservice
baseline with the condition propriate remedy.
soon after service could be a reliable and
In
Principi,
Adams v.
Lacking the evidence to establish such tion of case for soundness clarification of baseline, Secretary may attempt to certain medical evidence of record. The carry evidentiary post- burden with a glosses dissent over the Federal Circuit’s service medical that discusses “the statement in Adams that it was because particular injury character of the or dis- clarity of the lack of in the medical evi- ease,” 3.304(b)(1), § 38 C.F.R. in relation appropriate dence that a remand was the cases, to the available evidence. certain remedy. The Federal Circuit focused the nature of a preexisting inju- disease or ambiguity in the examiner’s report, VA ry may imply an extremely low likelihood concluding could be inter- aggravation by period limited of even preted in ways, way two one that would physical intense training. See 38 C.F.R. be sufficient or another insufficient to re- 3.303(c). physician If a is able to sup- but the of soundness. It was port such a conclusion with a suitable med- clarity because of this lack of in the evi- explanation, ical supported by extant medi- dence that the Federal Circuit affirmed record, knowledge cal and the facts of such this conclusion that further factual Court’s opinion might an constitute or contribute inquiry was needed to ex- resolve VA to clear and unmistakable evidence of lack However, aminer’s intent. the Federal aggravation. distinguished Circuit between clarification of the medical evidence and obvious insuf- The Board and the are free to ficiency of that evidence. pursue any such evidence the de- This is a case in which the court was velopment and administrative appeal clearly faced with evidence that was in- claim. given This Court has VA wide lati- sufficient to overcome the presumption tude in to developing pre- rebut of sound condition and in which the Shinseki, sumptions. Douglas See v. court remanded the matter to the Board (2009) (“[T]he Vet.App. Secretary’s attempt in order to allow to to [VA] authority develop necessarily a claim introduce new evidence sufficient authority includes the to collect and devel- up make the shortfall. evidence that op might presump- rebut the connection.”); tion of service import Id. at 1321-22. The clear of this Shoffner Principi language improper is that it would be (Board has discretion below as to how remand the case in the face of medical development required). plainly much to re- insufficient
but the abdicated its opportunity develop soundness. suit- aggravation. *13 v. able evidence of lack of Principi, also Stevens 289 F.3d distinction). (Fed.Cir.2002) (reiterating clarity There has been no lack of the law pertaining presumption to the case, In this the “X” in the “no” column problem soundness. The has been that by- of the MEB for “aggravated yet step up responsibility VA has to its unclear, duty” way active is in no or as the law regulation. under that and its own suggest, ambiguous. dissent seems to See Further, there is no immediate cost to the Rather, simply unsupport- Post at 248. it is reversal, taxpayers particular in this be- ed, unexplained, employing and arrived at only cause the veteran has the received proof. an insufficient standard of Because benefit of the presumption soundness. To it is the affirmative evidence of lack of connection, obtain service he still would aggravation, clearly there is insufficient need to that establish he has a current evidence to rebut the aggravation prong of disability and a nexus to the in-service soundness, the making re- Shedden, aggravation. See supra. None- improper. mand theless, any cost to taxpayers is dwarfed Moreover, it is unclear how a remand prospect the of future generated cases anything would be than yet other another misperception the will Court opportunity generate more evidence to tolerate the continuance of defective evi- up make the shortfall the aggravation dentiary development presumption of issue. The did not avail himself soundness cases. opportunity, of the which he concedes was Moreover, uniformity there is a certain available, develop evidence on the ag- similarly of treatment of parties situated gravation issue in In the course of necessary before the Court that is to the claim, the Board twice elected not to appearance of Hodge fairness. See v. seek further ag- medical evidence on the West, (Fed.Cir.1998) gravation prong when the case was before (“In the context of veterans’ ... benefits it on administrative review. In the deci- importance systemic the fairness and sion here on appeal, expressly Board appearance of fairness great carries any declined to seek further medical evi- weight.”). The Court would not remand dence after the case had been remanded carry case when a veteran a point fails for a more complete consideration of the on which he or she has the burden of presumption of The soundness. Board’s proof. It unseemly would be to so accom- reasoning was as follows: modate VA and Board as to matters on possibility [T]here is no reasonable that which the Government has the burden of any current VA examination or proof. findings
would result in
that
pro-
would
Therefore,
the Court will
reverse
vide a reasonable possibility of substan-
finding
Board’s
that
aggravation prong
tiating the claim. Accordingly,
of soundness was re-
etiology opinion
Board finds that an
is butted,
is,
aggra-
that service did not
“necessary”
to decide this claim for
appellant’s Legg-Perthes
vate the
disease.
service connection.
generally
Wells finding
Board is directed to enter a
(Fed.Cir.
Principi,
LANCE, Judge, dissenting: in reaching unanimous that conclusion. R. I believe the proper disposition of Although at 231. a claim cannot be decid case is for the Court to remand merely by the matter ed counting the number of doc to the Board for an adequate it, medical ex- support against tors in of or the fact amination “accepted based on medical that additional doctors reached the same in principles,” accord with 38 C.F.R. conclusion and that the doctors were unan 3.304(a)(1). I Although believe the ma- probable imous makes it more jority’s analysis proceeds in the correct conclusion is true than if single direction, general there are three aspects doctor were or if panel involved were First, opinion Shinseki, that concern me. I do divided. See Kahana v. 24 Vet. opinion fully not believe the accurately App. (Lance, J., 438 n. 8 con Second, evaluates evidence. I believe curring) (noting opinion that an that lacks opinion an opportunity pro- may misses detail support still lend some to other conclusion). vide guidance adjudicators clear opinions below. that reach the same Finally, I do remedy not believe that the The report also indicated that the appel chosen either required appropriate. is “medically lant was fit” “for further mili Therefore, I tary must dissent. service.” R. at. 230. This in finding of a with adequacy opinion also tends to show that his its value. The fact that a medical permanently aggravated probative
condition was not opinion inadequate to decide a claim by service. necessarily opinion does not mean that the report, Aside from the MEB there is probative weight. to no If the is entitled against other evidence the record opinion is based on an inaccurate factual majority claim to acknowl- fails premise, then it is correct to discount it First, the SMRs do not edge. Brown, entirely. Reonal v. See leg injury that he suffered a indicate (1993). However, if the though presump- service. Even there is detail, merely lacking then it tion of the absence of an in- aggravation, given weight some based the amount likely to make it less service tends of information and it contains. that his condition was ser- Peake, Nieves-Rodríguez 22 Vet. injured hip vice than if he had his left App. *15 302 Second, appellant only service. had majority in simply seven-and-a-half weeks of service and his is error when it by condition was observed his first few states that a conclusion a physician is in long probative weight weeks of service. Just as a career entitled to zero if it is not true, likely supported by analysis. service would make it more that a If that were service, aggravated by very condition was then a favorable medical from a likely brief service tends to make it less that unsupported by veteran’s doctor that a trigger condition was ser- would not be sufficient to vice. in recognized Secretary’s duty As Federal Circuit to assist. Gober, Nicholson, 79, v. Maxson basic facts about the McLendon v. 20 Vet.App. periods (holding involved a claim are relevant 83 that 38 U.S.C. 5103A(d)(2) § evidence on causation requires medical issues that that a opin medical knowledge lay provided are within the common of a ion to be where the evidence (Fed.Cir. 1330, adjudicator. 230 F.3d 1333 indicates that a claim has merit but 2000). claim). Indeed, Finally, grant the record indicates that insufficient to appellant not seek treatment for explicitly did McLendon states that “[t]he leg years types condition until 15 after ser- of evidence that a ‘indicate’ that and, afterward, vice even disability ‘may had extended current be associated’ with include, periods he complain military where did not of a service but are not limited to, by caused his condition. R. at medical that suggests evidence a nexus exactly type equivocal lacking 141. This is of “evidence but is too in specificity of a prolonged period support without medical a decision on the merits.” Id. 5103A(d)(2)). Thus, complaint” the Federal in (quoting Circuit 38 U.S.C. Maxson concluded was relevant to the permitted completely ignore VA is not a Board’s determination that a condition was bald conclusion a that supports doctor Thus, majority plainly service. Id. here claim and the incorrect majority stating reject is inaccurate in the conclusion of the three doc against signed report by evidence this claim is one tors who the MEB dis 40-year-old mark missively stating on a form. that three times zero is still zero. Ante at 241. majority’s I believe the error in this regard persistent prob way, stems from two Put another if a tort case were lems in analyzing jury plaintiff veterans tried before a and the had tendency testify claims. The first is a to conflate three they different doctors
247 causation, Kahana, thought jury there was could See 24 Vet.App. (noting if rely expertise categorical requirement their unrebutted even that “there is no ‘ they explain why they did not reached the “competent medical ... Indeed, precise stated conclusion. that is the determinative issue involves ei [when] ly jury system the difference between the ther etiology diagno or a medical ’” system. the veterans claims It is not Shinseki, (quoting sis” Davidson v. enough weight of the evidence is (Fed.Cir.2009) (quoting F.3d against system. sys the claim in our Our Nicholson, Jandreau v. transparent requires
tem is
the Board
(Fed.Cir.2007)))).
explain
the why
weighs
the evidence
Despite
clarity
of instruction from
Brown,
against
Allday
claim. See
Circuit,
the Federal
this Court is overdue
(1995) (Board’s
state
in providing guidance
principles
as to what
ment of reasons or
for
bases
its decision
of medicine are within the common knowl-
adequate
“must be
to enable a claimant to
edge
laypersons. Unfortunately,
precise
understand the
basis for
majority opinion misses a useful opportuni-
decision,
Board’s
as well as to facilitate
above,
ty to do so. As discussed
the Fed-
Court”).
informed review this
That is
eral
provided
Circuit
some direction
why
routinely
remands
claims
Maxson.
essential lesson of Maxson
complete
to obtain a
statement of reasons
lay persons
is that
can recognize the basic
or bases where
appellate
other
courts re
*16
connection between an
injury
in-service
or
view trial
to
determinations
see whether
disease,
time,
passage
the
of
and the devel-
there is
reasonable view of the evi
opment
disability.
of a
disability
When a
dence that
support
would
the conclusion
develops shortly after an in-service disease
by
reached
the factfinder after “drawing]
injury
or
affecting the same diseased or
all reasonable inferences in favor of the
injured body part
system,
simply
it is
Techs.,
prevailing party.” Akamai
Inc. v.
common sense to infer that
there is a
Servs., Inc.,
&
Cable Wireless Internet
always
connection. This inference will not
(Fed.Cir.2003).
1186, 1192
F.3d
correct,
but the inference is accurate
majority
makes a similar error in
enough
weight
trigger
to have some
and to
stating that I
“encroach[ ]
the role of a
duty
Conversely,
the
to assist.
when a
physician” by observing that the absence
develop
long
does not
until
after
injury
of an in-service
tends to make it less
service,
unlikely—
then a connection is
likely
the
condition was
if
especially
injury
there was no
or disease
aggravated by
Although
service.
the ma
body
sys-
in service
the
affecting
part or
jority
support
cites no
for their
criticism
tem at issue.
observation,
my
clearly
it
referring
is
to
clear,
knowledge
To be
medical common
Derwinski,
in
Colvin v.
which this Court
must be used with caution. When it is
reprimanded
relying
the Board for
on “its
favorable,
per
it is not
se sufficient
own unsubstantiated medical conclusions.”
When,
here,
grant
the claim.
as
it
is
However,
unfavorable, it
per
is not
se sufficient to
Federal
repeatedly
Circuit has
reminded
Instead,
deny
adjudicator
the claim.
us that Colvin should not be cited as an
must take care to consider it on a case
absolute rule and that
the Court must
Moreover, general
case basis.
acknowledge that
there are some basic
principles
knowledge may
of medicine that are within the
common
be rebutted with
knowledge
lay person,
expert
common
of a
which
medical evidence that shows that
adjudicators.
includes both claimants and
intuition is not accurate for a
basic
Thus,
if one
in
particular set
facts.
corded
had occurred
service.
However,
explicit
assigns
should be
as to how it
Ante at 239 n. 7.
there is no
law,
in
weight
knowledge
to medical common
it
holding,
basis for
as a matter of
each case.
that if
expect
appel-
is unreasonable to
injured
leg during
lant had
his
his brief
case,
particular
the majority
is
service, then that fact would have been
correct that there is no evidence as to the
investiga-
documented somewhere
progression
nature and
Legg-Perthes
tion as to whether his leg condition was
However,
majority ignores
disease.
course,
service. Of
the fact
lay
the fact that
medical common knowl-
injury
that there was no observable
to the
edge
precisely
has value
when it is unre-
leg in service
not
sufficient
rebut the
by expert
contrary.
butted
evidence to the
aggravation,
but that does
Applying
logic
majority
to dis-
change
the fact that the absence of an
count medical common
knowledge
likely
observed
makes it less
confirmatory expert
absence of
condition was
service than
effectively reinstates the absolute rule of
Thus,
if an injury
appears
was noted.
it
that the Federal
clearly
Colvin
Circuit has
majority
forgetting
pre-
that a
overruled.
sumption
exists
to allocate the burden
problem
majority’s
second
is the
proof.
It
rob
cannot
evidence of its
tendency
ignore
evidentiary
value of
tendency to
make a fact
issue more or
the absence of evidence. The Federal Cir
probable
less
than it would be without the
cuit has made clear that absence of corrob
West,
evidence. See Routen v.
142 F.3d
oration is not generally a basis for dis
(Fed.Cir.1998) (a
1434, 1440
“presumption
lay
counting
testimony. See Buchanan v.
party,
affords a
for
pre-
whose benefit the
Nicholson,
(Fed.
1336-37
runs,
luxury
sumption
having
of not
Cir.2006). However,
explained my
as
produce specific evidence to establish the
*17
Kahana,
separate opinion in
this does not
issue”).
point at
an
prevent
adjudicator from considering
reasons,
probative
majority
For these
I believe the
value of silence in the avail
dramatically
able evidence if a proper
strength
foundation exists
understates the
to
the evidence rebutting
demonstrate that such silence has a
aggravation, which
tendency
prove
disprove
a
contributes to the in-
relevant
remedy
fact. 24
correct
regard,
applied
at 440. In
this case.
this
the majority’s reliance on Buczynski v.
Shinseki
EVALUATION
placed. Buczynski does not stand for the
ANOF
MEB REPORT
absolute rule that the absence of evidence My
majority
second concern with the
considered,
can never be
but
instead
opinion
it
provide
is that
fails to
clear
Kahana,
states —as elaborated in
supra,— guidance to adjudicators as to how to han-
may
Board
consider a lack of
majority
dle future cases. The
correctly
notation of
symptoms
medical condition or
Secretary’s regulation
notes that the
has
negative
as substantive
evidence where
clearly
required
stated what evidence is
such notation would normally
expected.
presumptions
rebut the
of sound condition
interpretation of what the evidence must
Finally, I disagree with the majority
show to reach the
necessary
threshold
that reversal
required
is
in this case. Re-
rebut
the presumption. The evidence
versal is appropriate where law is settled
must show that applying “accepted medical
and the Board’s determination of adequacy
principles” regarding the nature of the
However,
“clearly
erroneous.”
I believe
hand,
condition to its
history
the case at
that in an area where
provid-
the Court is
data,
including the relevant clinical
would
(as
ing
here),
new guidance
doing
it is
VA
fully
result in
profession-
informed medical
opportunity
should have the
to obtain evi-
agreeing
als
as to whether the condition
guidance.
dence under that
preexisted service or
it.
above,
As detailed
there is substantial
(if
To the extent that this
usually
not
indicating
that this claim does not
universally)
requiring
an issue
medical ex-
have merit
though
even
has
VA
not ob-
Jandreau,
pertise, see
ty’s reliance on
7252(a)
for remand in
anything,
remedy
Adams counsels
to choose a
“as
U.S.C.
Adams,
this case instead of reversal.
appropriate” to the case before us. More
over,
remanded a similar claim to
this Court
Supreme
Court
Shinseki
U.S.
because,
though
even
there was
the creation
against
v. Sanders warned
claim,
against
substantial evidence
mandatory”
“complex, rigid, and
rules for
ambiguous
as to
opinion
require particular types of
this Court that
applied
it
the correct stan-
whether
had
regardless
they
relief
of whether
are con
In appealing
dard.
from three doctors in the MEB preexisted condition service not Al-
and was service.
though possible it is not to obtain clarifica- doctors, certainly
tion from those this is “supplemental
case where medical evi- light
dence” under Adams would shed BOWEN, Appellant, Jerrold C. ambiguity created the lack of a
narrative the conclu- supporting report. sion in the To the extent Adams contains dicta on when reversal SHINSEKI, Secretary Eric K. appropriate would be based different Affairs, Appellee. Veterans facts, simply binding sets of it in this No. 10-2975. case. Even to the extent that Adams pre- endorses reversal where the evidence Appeals States United *19 “clearly sented to the Court is insufficient for Veterans Claims. presumption,” to overcome the id. at I do not believe that the evidence Argued 2012. April clearly case was insufficient to this Decided June opinion clarifying proper development analysis required. Ultimately, I believe that the Court has choosing appropriate
discretion in rem
edy
case-by-case
rec
basis. Adams
notes
“flattening of the left femoral head and
III. ANALYSIS
shortening of the left femoral neck ...
probably secondary to Legg-Perthes [dis-
A. The Preexistence
Prong
ease as a child.” R. at 157. Another x-ray
Presumption of Soundness
report
generated
November
The record
replete
with medical
the same
facility, reports
essen-
records
indicating
appellant’s
tially the same evaluation. See R. at 159.
Legg-Perthes disease was a condition di
agnosed during
childhood,
when he was
evidence,
After
reiterating
approximately age six. A service medical Board found that there was clear and un-
(SMR)
23, 1970,
record
dated October
not mistakable
evidence that
appellant
ed that the
complaining
had been
Legg-Perthes
preexisted
disease
service.
thigh pain
left
for at least two weeks
Nicholson,
The Board cited Jandreau v.
and had “Hx [history] of Perthes Dz [dis
(Fed.Cir.2007),