Veteranclaims’s Blog

October 3, 2012

Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 236 (2012); Presumption of Soundness

Excerpt from decision below:https://veteranclaims.wordpress.com/wp-admin/post-new.php?post_type=post

“However, the 2010 Board addressed the presumption of soundness and noted that the 1977 Board found that RP “was not shown to be present until subsequent to his period of service,” such that the presumption of soundness is not for application. Record (R.) at 17; see R. at 18 (“As to the allegations that the presumption of soundness was not rebutted, the [1977] Board specifically denied service connection as not being incurred in service . . . .”); see also Horn v. Shinseki, 25 Vet.App. 231, 236 (2012) (“In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service.”).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-4319
ROY A. PICKETT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge:
Veteran Roy A. Pickett appeals through counsel a
November 19, 2010, decision of the Board of Veterans’ Appeals (Board) that
found no clear and
unmistakable error (CUE) in a 1977 Board decision denying benefits for
retinitis pigmentosa (RP).
Mr. Pickett argues that the 2010 Board should have found CUE in the 1977
Board’s (1) failure to
address the presumption of soundness or aggravation, (2) interpretation of
the evidence, and (3)
failure to address presumptive service connection. The Secretary disputes
these arguments.
On April 19, 2012, the Court issued a memorandum decision affirming the
Board decision.
On May 8, Mr. Pickett filed a motion for reconsideration or, in the
alternative, panel review, and
thereaftertheSecretaryfiledanopposition to Mr.Pickett’smotion. Single-
judgedispositionremains
appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons stated below, the
motion for reconsideration will be granted, the April 19, 2012, memorandum
decision will be
withdrawn and this decision issued in its stead, and the November 19, 2010,
Board decision on
appeal will be affirmed.
The 2010 Board found, inter alia, that (1) the 1977 Board decision did not
contain any error
constituting CUE, such that no correction of any error would have resulted
in a manifestly different
outcome for Mr. Pickett’s claim, and (2) Mr. Pickett’s assertions of CUE
amounted to a mere

disagreement with how the facts were weighed, which the Board stated
could not constitute CUE.
As further discussed below, Mr. Pickett fails to demonstrate that these
findings are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.” See Joyce v. Nicholson,
19 Vet.App. 36, 42-43 (2005) (Board decisions on CUE motions are reviewed
under the “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law” standard).
First, Mr. Pickett argues that the 2010 Board should have found CUE in the
1977 Board’s
failure to address the presumption of soundness (38 U.S.C. § 1111) or
aggravation (38 U.S.C.
§ 1153). However, the 2010 Board addressed the presumption of soundness
and noted that the 1977
Board found that RP “was not shown to be present until subsequent to his
period of service,” such
that the presumption of soundness is not for application. Record (R.) at
17; see R. at 18 (“As to the
allegations that the presumption of soundness was not rebutted, the [1977]
Board specificallydenied
service connection as not being incurred in service . . . .”); see also
HornNext Document v. Shinseki, 25 Vet.App.
231, 236 (2012) (“In order to invoke the presumption of soundness, a
claimant must show that he
or she suffered from a disease or injury while in service.”). Moreover,
although the 2010 Board did
not explicitly address the presumption of aggravation, it found that RP
was not noted upon entry to
service, such that section 1153 is inapplicable. See Wagner v. Principi,
370 F.3d 1089, 1096 (Fed.
Cir. 2004) (noting that section 1153 applies “if a preexisting disorder is
noted upon entry into
service”).
Although Mr. Pickett notes in support of his first argument that a 1975
Statement of the Case
(SOC) and 1976 Supplemental Statement of the Case (SSOC) found that RP
preexisted service and
was not aggravated in service beyond its normal progression, he fails to
identify where in the record
below he asserted that the 1977 Board decision contained CUE because it
did not hold the same view
of the evidence as the underlying SOC and SSOC. See Andre v. Principi, 301
F.3d 1354, 1361 (Fed.
Cir. 2002) (noting that each specific theory of CUE must be the subject of
a Board decision before
this Court can exercise jurisdiction over it); Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc)
(holding that appellant bears burden of demonstrating error on appeal).
Even if he had raised that
assertion below, it nevertheless is well established that statements in
decisions underlying a Board
decision are subsumed by that Board decision, and only the findings of
that Board decision are
subject to revision based on CUE. See Brown v. West, 203 F.3d 1378, 1381 (
Fed. Cir. 2000) (noting
2

that, where a VA decision is subsumed by a Board decision, a claimant
must demonstrate CUE in
the Board decision).
Also in support of his first argument, Mr. Pickett identifies a notation
of nightblindness upon
his entry to service and asserts that night blindness is a symptom of RP,
and thus argues that the
presumption of aggravation should have been applied. However, he fails to
demonstrate that he
raised this alleged relationship between night blindness and RP to the
2010 Board. See Andre and
Hilkert, both supra. Moreover, although he notes in his motion for
reconsideration that the 1972
Merck Manual characterizes night blindness as a symptom of RP, this does
not establish that RP was
present when he entered service or during service and, at best, suggests
that the claim may not have
been fully developed, which would not demonstrate CUE. See Caffrey v.
Brown, 6 Vet.App. 377,
387 (1994) (noting that the Secretary’s failure to fulfill the duty to
assist cannot constitute CUE).
Second, Mr. Pickett argues that the 2010 Board should have found CUE in
the 1977 Board’s
interpretation of the evidence. Specifically, he contends that the
evidence before the 1977 Board
compelled a conclusion manifestly different from the 1977 Board’s
conclusion that RP was not
incurred or aggravated in service. However, as the 2010 Board noted, there
is sufficient evidence
supporting the 1977 Board’s conclusion, to wit: (1) Mr. Pickett’s service
medical records did not
reflect a diagnosis or notation of RP, (2) his separation eye evaluation
was normal, (3) he was first
diagnosed with RP nine months after service, and (4) the March 1977
medical opinion found no
relationship between RP and service.
Although Mr. Pickett contends that the March 1977 medical opinion should
be read as
implicitly finding that RP manifested in service, a fair reading of the
opinion reflects that it did not
address the issue of in-service manifestation,1
such that Mr. Pickett’s view is not the onlypermissible
interpretation of the March 1977 medical opinion. See Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990) (“‘Where there are two permissible views of the evidence, the factfinder’s choice between

The opinion states: “Did the veteran have a separate acquired macular
pathology aside from his [RP] in
1970? . . . No. The description of the macular findings are entirely
typical of [RP].” R. at 1665. Considering that Mr.
Pickett left service in March 1970 with a normal separation eye evaluation
and was first diagnosed with RP in December
1970, it appears that the examiner is stating that Mr. Pickett exhibited
findings typical of RP as of the examination in
December 1970. The opinion then continues: “[RP] is a hereditary disease
. . . . [The data does not suggest that] service
contributed in any way to Mr. Pickett’s unfortunate deterioration of
vision. His eyes would be in the same condition
whether he were in the Navy during this time or not.” R. at 1665. This
sentence also does not answer the question of
when Mr. Pickett’s RP symptoms first manifested.
1
3

them cannot be clearly erroneous.'” (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573-
74 (1985))); see also Joyce, 19 Vet.App. at 48 (demonstrating CUE requires
showing that the
original decision is counter to the “only[ ] permissible view of the
evidence”). Further, even reading
the March 1977 medical opinion as implicitlyfinding that RP was present in
service, the 2010 Board
nevertheless noted that the 1977 Board relied on a composite of bases for
finding no in-service
manifestation, see supra, such that Mr. Pickett does not demonstrate that
the evidence compelled a
manifestlydifferentoutcome. See Sondel v. West,13Vet.App.213,221(1999)(
demonstrating CUE
requires showing that the correction of an error “would manifestly have
changed the outcome of the
case”).2
To the extent Mr. Pickett argues that the medical opinions are the most
probative on the
question of in-service manifestation, there is no requirement that the
1977 Board give greater weight
to postservice medical opinions than the in-service medical records noting
no RP on entry, during,
or on exit from service. See Washington v. Nicholson, 19 Vet.App. 362, 367-
68 (2005) (Board has
the dutyto determine the credibilityand probative weight of the evidence);
cf. Buczynski v. Shinseki,
24 Vet.App. 221, 224 (2011) (Board may not rely on the absence of actual
evidence, but may rely
on the existence of substantive negative evidence).
Also in furtherance of his view that the March 1977 medical opinion
implicitly found RP
present in service, Mr. Pickett contends that the 2010 Board
mischaracterized an August 1974
medical opinion and the March 1977 medical opinion as conflicting. However,
a fair reading of the
2010 Board opinion reflects that its characterization of these opinions as ”
conflicting” referred to the
issue of whether RP was “related” to service, and the record reflects that
the two opinions certainly
differ on the question of the relationship between RP and service. R. at
17.
Mr. Pickett also contends that the 2010 Board should have found CUE in the
1977 Board’s
interpretation oftheevidencebecausethe1977Boardcharacterized anAugust
1974medicalopinion
stating that RP “was present . . . in service and probably progressed” (R.
at 1734), as an opinion that
RP “was probably present . . . in service” (R. at 1661). However, he fails
to identify where he raised
this specific assertion of CUE to the Board. See Andre and Hilkert, both
supra. Moreover, even if
he had raised it, Mr. Pickett fails to demonstrate that the misplacement
of an adverb (“probably”) in
Contrary to Mr. Pickett’s allegation in his motion for reconsideration,
the Court is not acting as a
factfinder by noting these alternative bases of Board reliance.
2
4

the summary of evidence is the type of error constituting CUE, see Sondel
and Hilkert, both supra;
rather,his mischaracterization
argumentconstitutesameredisagreementwiththeBoard’s evaluation
and weighing of the evidence, which generallycannot constitute CUE.
Compare Russell v. Principi,
3 Vet.App. 310, 313 (1992) (en banc) (claimant “must assert more than a
disagreement as to how
the facts were weighed or evaluated”), with Amberman v. Shinseki, 570 F.3d
1377, 1382 (Fed. Cir.
2009) (noting that “CUE maybe found based upon an error of fact,” e.g., ”
identifying an error in how
[the previous decisionmaker] initially weighed evidence,” if the other CUE
requirements are
satisfied); see also Joyce, 19 Vet.App. at 48 (finding of fact is clearly
and unmistakably erroneous
when counter to the “only [ ] permissible view of the evidence”).
Overall, Mr. Pickett fails to demonstrate that the 2010 Board’s findings
regarding the 1977
Board’s interpretation of the evidence were clearly erroneous, or that the
2010 Board’s conclusions
on this matter were arbitrary, capricious, an abuse of discretion of
otherwise not in accordance with
law. See Hilkert, supra; cf. Fugo v. Brown, 6 Vet.App. 40, 44 (1993) (“[S]
imply to claim CUE on
the basis that previous adjudications had improperly . . . evaluated the
evidence can never rise to the
stringent definition of CUE.”).
Third, Mr. Pickett argues that the 2010 Board should have found CUE in the
1977 Board’s
failure to address presumptive service connection. However, he fails to
identify where in the record
he asserted that the 1977 Board committed CUE by not addressing
presumptive service connection.
Accordingly, he fails to demonstrate that the 2010 Board erred by not
addressing this assertion of
CUE. See Andre and Hilkert, both supra.
Overall, Mr. Pickett fails to demonstrate that the 2010 Board decision
finding no CUE in the
April 1977 Board decision is arbitrary, capricious, an abuse of discretion,
or otherwise not in
accordance with law, or that the 2010 Board’s statement of reasons or
bases in support of its decision
is inadequate. See Joyce and Hilkert, both supra; see also Allday v. Brown,
7 Vet.App. 517, 527
(1995) (Board’s statement “must be adequate to enable a claimant to
understand the precise basis for
the Board’s decision, as well as to facilitate review in this Court”).
Accordingly, the November 19, 2010, Board decision on appeal is AFFIRMED.
DATED:
September 24, 2012
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Copies to:
Theodore C. Jarvi, Esq.
VA General Counsel (027)
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