Veteranclaims’s Blog

August 22, 2017

Single Judge Application; Presumption of Soundness; Horn v. Shinseki, 25 Vet.App. 231, 234 (2011); Second Elements of Service Connection;

Excerpt from decision below:

“The Court agrees with the appellant that the Board clearly erred in determining that the presumption of soundness had been rebutted. See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990)
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(holding that the Board’s findings of fact are reviewed under the “clearly erroneous” standard of review). While the record reflects that the appellant suffered an injury to his hip prior to service, the first evidence that the appellant lacked the ability to externally rotate his left hip was developed after the appellant’s in-service fall. See R. at 317. The appellant then underwent extensive physical therapy and was discharged without regaining this range of motion. R. at 319 (“[p]atient still having difficulty with resistive hip exercises”). None of the evidence cited by the Board refutes this evidence of in-service aggravation at all, much less clearly and unmistakably. See Horn v. Shinseki, 25 Vet.App. 231, 234 (2011) ([i]f the presumption of soundness applies, the burden falls on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service was both preexisting and not aggravated by service).
Further, the Board’s reliance on a lack of postservice treatment appears to conflate the second and third elements of service connection, and the presumption of soundness is only relevant to the former. See id. at 236 (“The presumption of soundness relates to the second requirement—the showing of in-service incurrence or aggravation of a disease or injury.”)

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1056
CIRILIO C. GARAY, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENBERG, Judge: The appellant Cirilio C. Garay appeals through counsel a December 28, 2016, Board of Veterans’ Appeals (Board) decision that denied service connection for a left hip disability. Record (R.) at 2-17. The appellant argues that the Board (1) clearly erred in determining that there was clear and unmistakable evidence to rebut the presumption of soundness and (2) failed to properly consider 38 C.F.R. § 3.303(b) in denying service connection. Appellant’s Brief at 5-11. For the following reason, the Court will reverse the Board’s finding that there was clear and unmistakable evidence to rebut the presumption of soundness, and otherwise vacate the December 2016 Board decision and remand the matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C.
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§ 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. “By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Air Force from April 1959 to February 1960, as an apprentice communications center specialist. R. at 309 (DD Form 214). His March 1959 entrance examination revealed normal lower extremities, and no defects are noted. R. at 327-28. However, during basic training, he suffered a fall that resulted in complaints of left hip pain and limitation of motion. R. at 317-18. The appellant sought treatment in June 1959 and reported that he had been involved in a motor vehicle accident (MVA) in 1956, and while the incident caused extreme left hip soreness, he limped for only 3 months after the accident and the pain then “became quiescent.” R. at 317. The examiner found that the appellant’s “[e]xternal rotation is limited approximately 10 degrees compared to the opposite side externally rotating to about 10 degrees.” R. at 317. The appellant was diagnosed with “traumatic mild arthritis with restriction in hip motion.” R. at 318. The physician further noted his impression of “old trauma to the left hip with restriction in activity, probably mild arthritis complaints related to this trauma.” R. at 317-18. Beginning in June 1959, the appellant underwent 17 in-service physical therapy sessions where he was given “active resistance exercises to increase the range of motion of the left hip in extension[,] internal rotation[,] adduction[,] [and] abduction[,].” R. at 319. A July 29, 1959, treatment note states that “[p]atient still having difficulty with resistive hip exercises. No limp. Patient no longer coming to clinic – discharged at this time.” R. at 319.
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In 1966, the appellant filed for benefits based on service connection for a left hip disability, which was ultimately denied. R. at 943; R. at 945-48. In September 2001, the left hip arthritis was described as severe. R. at 738; R. at 896-98.
In August 2016, the appellant underwent a VA examination, wherein the examiner stated that the appellant “began complaining of left hip pain after sustaining a fall in 2001 and was diagnosed with [degenerative joint disease] of the left hip. This was the first documentation of hip pain in 41 years, 5 months, 30 days after separation from military service and no nexus.” R. at 39.
The examiner continued:
Therefore, based on review of the veteran’s STRs [service treatment records] the . . . veteran’s left hip disability clearly and unmistakably existed prior to service. Review of the [v]eteran’s non-military medical records clearly documents that he reported a gradual onset of left hip [pain] 40 years after separation from the military with an acute onset of left hip [pain] 41 years, 5 months and 30 days after separating from the military as a result from a fall. Based on this [finding] and an admission by the [v]eteran[] his left hip disability was clearly and unmistakably not aggravated beyond the natural progression of the disease as a result of the veteran’s military service.
R. at 39-40.
In December 2016, the Board issued the decision on appeal denying service connection for a left hip disability. R. at 2-17. The Board found that the presumption of soundness attached, but that there was clear and unmistakable evidence that the condition both preexisted and was not aggravated beyond its natural progression by service and thus the presumption was rebutted. R. at 3. In determining that there was clear and unmistakable evidence of in-service aggravation, the Board relied on the appellant’s service treatment records, specifically those that suggested that the appellant exaggerated his symptoms in service as well as the August 2016 VA examiner’s findings that the appellant’s postservice medical records “clearly [documented] that he reported gradual onset of left hip [pain] 40 years after separating from the military with an acute onset of left [hip pain] 41 years, 5 months, and 30 days after separating from service.” R. at 14. The Board also found that the appellant’s lack of treatment for a left hip disability for more than 40 years after service supported a finding of clear and unmistakable evidence of a lack of in-service aggravation. R. at 14.
The Court agrees with the appellant that the Board clearly erred in determining that the presumption of soundness had been rebutted. See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990)
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(holding that the Board’s findings of fact are reviewed under the “clearly erroneous” standard of review). While the record reflects that the appellant suffered an injury to his hip prior to service, the first evidence that the appellant lacked the ability to externally rotate his left hip was developed after the appellant’s in-service fall. See R. at 317. The appellant then underwent extensive physical therapy and was discharged without regaining this range of motion. R. at 319 (“[p]atient still having difficulty with resistive hip exercises”). None of the evidence cited by the Board refutes this evidence of in-service aggravation at all, much less clearly and unmistakably. See Horn v. Shinseki, 25 Vet.App. 231, 234 (2011) ([i]f the presumption of soundness applies, the burden falls on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service was both preexisting and not aggravated by service).
Further, the Board’s reliance on a lack of postservice treatment appears to conflate the second and third elements of service connection, and the presumption of soundness is only relevant to the former. See id. at 236 (“The presumption of soundness relates to the second requirement—the showing of in-service incurrence or aggravation of a disease or injury.”) The evidence of record simply fails to establish a baseline to conclude that the appellant’s left hip disability was not aggravated by service. Because “it would be improper to remand [a] case in the face of medical evidence that is plainly insufficient to rebut the presumption of soundness,” id. at 243-44, the Court will reverse the Board’s finding that the presumption of soundness has been rebutted and remand the matter to determine whether the appellant’s current disability is related to his in-service left hip injury. Id. at 236 (even if the presumption of soundness is not rebutted, the veteran “must still demonstrate a current disability and a nexus between [the] current disability and the injury or disease in service”).
Because the Court is remanding the appellant’s claim, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). However, on remand the Board should properly address evidence of in-service arthritis. See Appellant’s Brief at 9-11. Further, on remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
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Based on the foregoing reason, the determination that there was clear and unmistakable evidence to rebut the presumption of soundness is REVERSED, the remainder of the December 28, 2016, Board decision is VACATED, and the matter is REMANDED for readjudication.
DATED: August 21, 2017
Copies to:
Amy F. Odom, Esq.
VA General Counsel (027)

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