Veteranclaims’s Blog

March 21, 2011

Single Judge Application, C.F.R. 3.63, Presumption of Soundness, Clear and Unmistakeable Evidence

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Excerpt from decision below:

“In the decision on appeal, the Board cited the applicable statutory and
regulatory provisions extant at the time of the 1957 RO decision concerning the presumption of soundness. R. at 26, citing 38 C.F.R. § 3.63 (1956). The Board noted:
[I]njury or disease, apart from misconduct disease, noted prior to service
or shown by clear and unmistakable evidence, including medical facts and principles,
to have had inception prior to enlistment will be conceded to have been aggravated
where such disability underwent an increase in severity during service unless
such increase in severity was shown by clear and unmistakable evidence, including
medical facts and principles, to have been due to the natural progress of the disease. Id.; see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (
holding that, since the presumption of soundness was first included in a 1924 statute, “the burden . . . [has] fall[en] on the government to rebut the presumption of soundness by clear and unmistakable evidence that the
veteran’s disability was both preexisting and not aggravated by service”).

—————————————————-
“The Secretary concedes that it should be presumed that the appellant’s condition, which increased during service, was aggravated by such service, unless such presumption is rebutted by clear and unmistakable evidence that the increase was the natural progression of the disease. Secretary’s Br. at 20.
The RO’s July 1957 rating decision concluded that the appellant’s in-service symptoms were due to the normal progression of his condition and that there was no aggravation. R. at 620. This determination was based on a November 30, 1956, discharge evaluation, wherein it was noted that the appellant’s “condition is due to congenital osteogenic defect,” and that his “present condition and symptoms can be considered due to the normal progress of his disease and there is nothing present to indicate service aggravation.” R. at 647. The Secretary argues that the foregoing discharge evaluation “provides distinct and unambiguous evidence that the cyst on Appellant’s tibia, which grew during service, was due to the natural progression of his condition.” Secretary’s Br. at 21.
The appellant argues that the medical record does not rise to the level of clear and unmistakable evidence. Appellant’s Br. at 7.
Review of the Board’s decision reflects that the Board did not specifically determine whether the medical record constitutes clear and unmistakable evidence. The failure to discuss this issue warrants remand in order for the Board to provide adequate reasons or bases for its decision.
=========================================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0434
EFRAIN RODRIGUEZ-MERLO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HOLDAWAY, Judge: The appellant appeals from the October 16, 2008, decision
of the
Board of Veterans’ Appeals (Board) that reopened and denied entitlement to
service connection for a left tibia disability, claimed as a left ankle fracture, and denied service connection for a lumbar herniated disc status post laminectomy secondary to a left ankle disability. The Board also determined that there was no clear and unmistakable error (CUE) in a July 22, 1957, rating decision that denied service connection for a congenital osteogenic defect of the left tibia and did not consider a post-operative scar of the left tibia. Single-judge disposition is
appropriate when the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the October
2008 Board’s decision and remand the matter on appeal.

I. FACTS
The appellant served on active duty from November 1954 to December 1956.
Record (R.)
543, 562. On the appellant’s August 1954 pre-induction examination, it was
noted that he had a cyst
removed from his right thigh. R. at 702-703. In March 1955, a benign tumor
was found on the

appellant’s left ankle. R. at 698-700. In November 1956, the appellant
underwent surgeryto remove
the tumor on his left ankle. R. at 664. A discharge report included the
appellant’s report of pain in
the distal aspect of the left leg for a few months. R. 648. That report
also noted that pain had been
aggravated by prolonged or strenuous use; the physician that prepared the
report also indicated that
the condition was a congenital osteogenic defect, that the symptoms would
be considered due to the
natural progress of the disease, and that there was nothing in service to
indicate aggravation. R. 647-
48.
In January 1957, the appellant filed a claim for service connection for a
left ankle condition.
R. 629-32. In May 1957, the appellant underwent a VA examination. R. 622.
The examiner noted
a reported history of an Previous DocumentinjuryNext Hit to the left ankle in service. Id. The
examiner also noted that the
claims file was not available and diagnosed Previous HitinjuryNext Hit and surgery, extent and
nature unknown due to
the unavailability of the claims file. Id. X-ray examination revealed ”
deformity of the distal end of
fibula apparently residual of previous trauma.” R. 621. In July 1957, the
regional office (RO)
denied service connection for a left leg condition, finding that the
appellant had a congenital
osteogenic defect on the left tibia of multiple osteochondroma and that
the symptomatology in
service was considered the normal progress of a congenital disease. R. 620.
In November 1991, Mr. Rodriguez filed a claim for compensation for
disorders that included
an ankle disorder and a back disorder. R. 536-39. In May 2001, the RO
issued a rating decision
denying service connection for osteochondroma because new and material
evidence had not been
submitted.
R. 487-89.
In December 2003, the RO again denied service connection for
osteochondroma of the left tibia because new and material evidence had not
been submitted. R. 466-
67. The appellant appealed the RO’s decision. R. 406-07, 443-44.
In December 2004, Mr. Rodriguez filed a statement wherein he asserted that
his ankle and
back disorders were service related. R. 335-36. In February2005, the RO
issued a decision denying
service connection for lumbar herniated disc at vertebrae L5-S1, claimed
as secondary to the left
ankle, and denying service connection for osteochondroma. R. 367-70. The
appellant appealed the
RO’s decision. R. at 323-24, 357. In August 2006, the RO issued a rating
decision wherein it
determined that CUE was not present in the 1957 rating decision. R. 300-03.
The appellant
perfected an appeal of the RO’s decision. R. 274, 296. On October 16, 2008,
the Board issued the
decision here on appeal. (R. 3-28). This appeal followed.
2

II. ANALYSIS
A. Left Tibia Disability
Upon entering service, an individual will be presumed sound, “except as to
defects,
infirmities, ordisordersnotedat[entry],
orwhereclearandunmistakableevidencedemonstratesthat
the Previous HitinjuryNext Hit or disease existed before [service] and was not aggravated by
such service.” 38 U.S.C.
§§ 1111, 1132; 38 C.F.R. § 3.304(b) (2010). “Clear and unmistakable
evidence,” as used in the
governing statutes, has been interpreted to mean evidence that “cannot be
misinterpreted and
misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet.App. 254,
258-59 (1999) (citing
definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet.
App. 310, 313-14 (1992)).
The onlyprerequisite for the application of the presumption of soundness
is that the veteran’s
entryexamination be clear of anynoted diseases or disabilities. Quirin v.
Shinseki, 22 Vet.App. 390,
396 (2009). The presumption of soundness applies to congenital diseases
that arenot noted at entry.
Monroe v. Brown, 4 Vet.App. 513, 515 (1993). “The presumption of soundness
does not, however,
apply to congenital defects, because such defects ‘are not diseases or
injuries’ within the meaning of
38 U.S.C. §§ 1110 and 1111.” Quirin, 22 Vet.App. at 397; see 38 C.F.R. §
3.303(c) (2009); see also
Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that
the presumption of
soundness does not apply to congenital defects).
The appellant argues that the Court should reverse the Board’s denial of
service connection
for a left tibia disability, osteochondroma of the left tibia post-
operative, because clear and
unmistakable evidence has not been presented to rebut the presumption of
sound condition.
Appellant’s Brief (Br.) at 5. He points out that the Board’s analysis does
not make a distinction
between whether his left ankle condition is a congenital disease or defect.
Id. at 8. Alternatively,
the appellant argues that the Board provided inadequate reasons or bases
for its decision. Id. at 10-
11. The Secretary concedes that the Board’s analysis as to the appellant’s
claim for service
connection for his congenital left ankle condition was inadequate, because
the Board did not
sufficiently analyze whether his congenital ankle condition was a defect
or a disease. Secretary’s Br.
at 10. The Secretary notes that such a finding is necessary to determine
if the appellant is due the
presumption of soundness for his congenital ankle condition. Id.
3

To the extent that the appellant argues for reversal, reversal is the
appropriate remedy when
the only permissible view of the evidence is contrary to the Board’s
decision. See Gutierrez v.
Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (
1996). Generally, where
the Board has incorrectlyapplied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate,
remand is the appropriate
remedy. See Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that
remand is appropriate
when “the Court finds that the Board decision is defective in its reasons
or bases thereby preventing
proper review by the Court”); Tucker v. West, 11 Vet.App. 369, 374 (1998).
Remand is the
appropriate remedy here to allow the Board to make a determination
supported by an adequate
statement of reasons or bases.
B. Lumbar Herniated Disc
The appellant asserts that he is entitled to service connection for a
lumbar herniated disc
status post laminectomy secondary to a left ankle disability. This claim
is wholly dependent on a
final decision below with regard to the appellant’s entitlement to service
connection for a left ankle
disability. Accordingly, any decision as to secondary service connection
for a hip disability is
inextricably intertwined with a final decision by the Board as to whether
the appellant is entitled to
service connection for a left ankle condition. Thus, remand of this issue
also is warranted. See Smith
v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (stating that for judicial
economy and avoidance of
piecemeal litigation, when “two claims are sufficiently intertwined . . .
they should be considered
together”); Gurley v. Nicholson, 20 Vet.App. 573, 575 n.1 (2007) (
suggesting that to serve the
interest of judicial economy remand is appropriate when two issues are
inextricably intertwined);
see also Tucker, supra.
C. CUE in a July 22, 1957, Rating Decision
The appellant argues that the Court should reverse the Board’s
determination that clear and
unmistakable error was not present in a July 1957 rating decision that
denied service connection for
a disorder of the left tibia and for a post-operative scar because clear
and unmistakable evidence was
not present for a finding that an increase in disability was part of the
natural progress of the disease.
See Appellant’s Br. at 5. The Secretary counters that the Court should
affirm the Board’s
determination that no CUE exists in the 1957 RO decision. Secretary’s Br.
at 16-24.
4

A prior final Board decision must be reversed or revised when the
evidence establishes clear
and unmistakable error. See38 U.S.C. § 7111(a). CUE is established when
the following conditions
have been met: First, either (1) the correct facts contained in, or
constructively contained in, the
record were not before the adjudicator, or (2) the statutoryor
regulatoryprovisions extant at the time
were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1995).
Second, the alleged
error must be “undebatable,” not merely a “disagreement as to how the
facts were weighed or
evaluated.” Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc).
Finally, the error must
have “manifestly changed the outcome” of the prior decision. Russell, 3
Vet.App. at 313-14; see
Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly
adopting the “manifestly
changed” outcome language in Russell, supra). The Court’s review of a
Board decision regarding
an allegation of CUE in a prior decision is limited to whether the Board’s
decision was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law,” and whether the
decision is supported by an adequate statement of reasons or bases. 38 U.S.
C. §§ 7261(a)(3)(A),
7104(d)(1); see also Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en
banc); Allday v. Brown,
7 Vet.App. 517, 527 (1995). As part of that review, however, the Court
reviews de novo all questions of law and whether an applicable law or regulation was applied. See Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005).
In the decision on appeal, the Board cited the applicable statutory and
regulatory provisions extant at the time of the 1957 RO decision concerning the presumption of soundness. R. at 26, citing 38 C.F.R. § 3.63 (1956). The Board noted:
[I]njury or disease, apart from misconduct disease, noted prior to service
or shown by clear and unmistakable evidence, including medical facts and principles,
to have had inception prior to enlistment will be conceded to have been aggravated
where such disability underwent an increase in severity during service unless
such increase in severity was shown by clear and unmistakable evidence, including
medical facts and principles, to have been due to the natural progress of the disease. Id.; see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (
holding that, since the presumption of soundness was first included in a 1924 statute, “the burden . . . [has] fall[en] on the government to rebut the presumption of soundness by clear and unmistakable evidence that the
veteran’s disability was both preexisting and not aggravated by service”).

As to rebutting the
5

presumption of aggravation then extant, “a pre-existing injury or disease
will be considered to have
been aggravated by active military or naval service where there is an
increase in disability during
active service, unless there is a specific finding that the increase in
disability is due to the natural
progress of the disease.” 38 C.F.R. § 3.63(k) (1956).
The evidence of record shows that the appellant’s condition progressed
while in service. On
March 19, 1955, a benign tumor on his left ankle was found (R. at 698-700),
which was later
determined to be due to a congenital osteogenic condition (R. at 647). On
November 2, 1956, the appellant had the cyst excised from his left ankle. R. at 663-64. The Secretary concedes that it should be presumed that the appellant’s condition, which increased during service, was aggravated by such service, unless such presumption is rebutted by clear and unmistakable evidence that the
increase was the natural progression of the disease. Secretary’s Br. at 20.

The RO’s July 1957 rating decision concluded that the appellant’s in-service symptoms were due to the normal progression of his condition and that there was no aggravation. R. at 620. This determination was based on a November30, 1956, discharge evaluation, wherein it was noted that the appellant’s “condition is due
to congenital osteogenic defect,” and that his “present condition and
symptoms can be considered due to the normal progress of his disease and there is nothing present to indicate service aggravation.” R. at 647. The Secretary argues that the foregoing discharge evaluation “provides distinct and unambiguous evidence that the cyst on Appellant’s tibia, which grew during service, was due to the natural progression of his condition.” Secretary’s Br. at 21.
The appellant argues that the medical record does not rise to the level of clear and unmistakable evidence. Appellant’s Br. at 7.
Review of the Board’s decision reflects that the Board did not
specifically determine whether the medical record constitutes clear and unmistakable evidence. The failure to discuss this issue warrants remand in order for the Board to provide adequate reasons or bases for its decision. To the
extent that the appellant argues for reversal, reversal is the appropriate
remedy when the only permissible view of the evidence is contrary to the Board’s decision. See Gutierrez, 19 Vet.App. at 10; Johnson, 9 Vet.App. at 10. Remand is the appropriate remedy here to allow the Board to make a determination supported by an adequate statement of reasons or bases.
6

D. Other Contentions of Error
In light of the need to remand the appellant’s claims for the Board to
provide an adequate
statement of reasons or bases, his remaining assertions of error are moot.
See Dunn v. West,
11 Vet.App. 462, 467 (1998) (remand of the appellant’s claim under one
theorymoots the remaining
theories advanced on appeal). On remand, the appellant may present, and
the Board must consider,
any additional evidence and argument in support of the matters remanded.
See Kay v. Principi,16
Vet.App. 529, 534 (2002). These matters are to be provided expeditious
treatment on remand. See
38 U.S.C. § 7112.
III. CONCLUSION
Uponconsideration oftheforegoinganalysis, therecordonappeal,
andtheparties’pleadings,
the October 16, 2008, Board decision is VACATED and the matter is REMANDED
to the Board
for further readjudication consistent with this decision.
DATED: March 17, 2011
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
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