Veteranclaims’s Blog

December 10, 2018

Single Judge Application; CUE; PTSD; in-service aggravation; presumption of soundness; Horn v. Shinseki, 25 Vet.App. 231, 234 (2012);

Excerpt from decision below:

“Here Mr. Slagger points to the August 2007 Board’s finding that “there is no objective
evidence of continuance of such flare-up during the years following the appellant’s discharge from service so as to establish chronic aggravation.” Record (R.) at 8. He argues that this shows that the Board shifted the burden of proof from VA to him by requiring evidence of aggravation, rather than “clear and unmistakable evidence” that his PTSD was not aggravated. Appellant’s Br. at 8-9.
As previously noted, the Court may not review the August 2007 decision. Instead, the Court considers the December 2017 Board’s consideration of the August 2007 decision. On that front, the December 2017 Board noted that the August 2007 Board decision “determined that although the [v]eteran’s PTSD flared up during service, PTSD clearly and unmistakably was not aggravated during service.” R. at 8. On its face, this appears correct. However, the December 2017 Board decision did not reconcile this determination with the portion of the August 2007 decision that seemingly required affirmative evidence of aggravation. This is the part of the 2007 decision to which Mr. Slagger assigns error, maintaining that the August 2007 decision considered only if
there was evidence of aggravation and not if there was evidence that his PTSD was not
aggravated—thereby shifting the burden under the presumption of soundness from VA to him.
Rather than addressing this issue, the Board instead summarily found that “[t]he August 2007 Board decision[,] which denied service connection for an acquired psychiatric disability, to include PTSD, considered the correct law and evidence as it then existed and was not the product of undebatable error.” R. at 3.
With the Board making no attempt to reconcile the conflicting statements in the August
2007 decision, the Court cannot determine if the 2017 Board conclusion that the August 2007 decision applied the correct law is arbitrary, capricious, an abuse of discretion, or otherwise not in
4
accordance with the law

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0883
DAVID A. SLAGGER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Navy veteran David A. Slagger appeals through counsel a December 15,
2017, Board of Veterans’ Appeals decision finding no clear and unmistakable error (CUE) in an August 2007 Board decision denying service connection for an acquired psychiatric disability, including post-traumatic stress disorder (PTSD). The appeal is timely; the Court has jurisdiction to review the Board decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board’s conclusion that there was no CUE in its August 2007 decision is arbitrary, capricious, an abuse of its discretion, or otherwise not in accordance with the law. Mr. Slagger argues that the Board acknowledged that service “exacerbated” his preexisting PTSD, in-service aggravation is clear; and VA improperly shifted the burden on him to prove aggravation occurred rather than fulfill its duty to prove the absence of aggravation.
Because the Board failed to provide adequate reasons or bases for its finding that the August 2007
decision correctly applied the law by not shifting the burden of proof when it denied service
connection for PTSD, the Court’s review is frustrated. Thus, the Court will set aside the Board
decision and remand for further adjudication.
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I. ANALYSIS
To resolve Mr. Slagger’s appeal, the Court must review the Board’s determination that there
was no CUE in the August 2007 Board decision. The Court’s review of the Board’s determination
on the existence of CUE is limited to whether the conclusion is arbitrary, capricious, an abuse of
discretion, otherwise not in accordance with the law or unsupported by adequate reasons or bases.
38 U.S.C. § 7261(a)(3); Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc). This standard
of review “contemplates de novo review of questions of law,” including whether an applicable law
or regulation was correctly applied. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005) (quoting Kent
v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004)).
At the same time, the Court may not “conduct a plenary review of the merits of the original
decision.” George v. Shulkin, 29 Vet.App. 199, 206 (2018) (citing Stallworth v. Nicholson,
20 Vet.App. 482, 487 (2006)). Rather, the Court must affirm the Board’s decision if the Board
“articulates a satisfactory explanation for its decision, ‘including a rational connection between the
facts found and the choice made.'” Id (quoting Lane v. Principi, 16 Vet.App. 78, 83 (2002)).
“The Board is required to provide a written statement of the reasons or bases for its findings
and conclusions on all material issues of fact and law.” Allday v. Brown, 7 Vet.App. 517, 527
(1995); see 38 U.S.C. § 7104(d)(1). This “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.” Allday, 7 Vet.App. at 527. It is with the Board’s reasons or bases for its determination that the August 2007 decision considered the correct law when it denied service connection that our review hits a wall.
Mr. Slagger argues that the August 2007 Board decision did not consider the correct law
because, despite finding that his PTSD clearly and unmistakably preexisted service, the Board required him to prove that his PTSD was aggravated in service, rather than requiring VA to establish that his PTSD was not aggravated by clear and unmistakable evidence. Appellant’s Brief(Br.) at 8-9. Essentially, Mr. Slagger argues that the August 2007 Board did not correctly consider the law governing the presumption of soundness.
When no preexisting medical condition is noted upon entry into service, VA presumes the veteran was sound in every respect. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet.App. 231, 234 (2012). If the presumption of soundness applies, the burden falls on VA to
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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. See 38 U.S.C. § 1111(“[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except . . . where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.”); see also Wagner, 370 F.3d at 1096. To satisfy its burden of showing no aggravation, VA must also
establish by clear, unmistakable, and affirmative evidence that the preexisting condition did not increase in disability during service or that any increase in disability was because of the natural progression of the condition. Horn, 25 Vet.App. at 235; see Wagner, 370 F.3d at 1096.
Here Mr. Slagger points to the August 2007 Board’s finding that “there is no objective evidence of continuance of such flare-up during the years following the appellant’s discharge from service so as to establish chronic aggravation.” Record (R.) at 8. He argues that this shows that the Board shifted the burden of proof from VA to him by requiring evidence of aggravation, rather than “clear and unmistakable evidence” that his PTSD was not aggravated. Appellant’s Br. at 8-9.
As previously noted, the Court may not review the August 2007 decision. Instead, the Court considers the December 2017 Board’s consideration of the August 2007 decision. On that front, the December 2017 Board noted that the August 2007 Board decision “determined that although the [v]eteran’s PTSD flared up during service, PTSD clearly and unmistakably was not aggravated during service.” R. at 8. On its face, this appears correct. However, the December 2017 Board decision did not reconcile this determination with the portion of the August 2007 decision that seemingly required affirmative evidence of aggravation. This is the part of the 2007 decision to which Mr. Slagger assigns error, maintaining that the August 2007 decision considered only if
there was evidence of aggravation and not if there was evidence that his PTSD was not
aggravated—thereby shifting the burden under the presumption of soundness from VA to him.
Rather than addressing this issue, the Board instead summarily found that “[t]he August 2007 Board decision[,] which denied service connection for an acquired psychiatric disability, to include PTSD, considered the correct law and evidence as it then existed and was not the product of undebatable error.” R. at 3.
With the Board making no attempt to reconcile the conflicting statements in the August
2007 decision, the Court cannot determine if the 2017 Board conclusion that the August 2007 decision applied the correct law is arbitrary, capricious, an abuse of discretion, or otherwise not in
4
accordance with the law. The Court recognizes that the parties dedicated significant effort briefing other issues in the case, but without adequate reasons or bases supporting the Board’s determination that the August 2007 decision applied the correct law governing the presumption of soundness, the Court’s review is frustrated, and Mr. Slagger cannot understand the precise basis for the Board’s
decision.
Thus, the proper remedy is for the Court to remand for an adequate statement of reasons or
bases addressing if the August 2007 Board decision improperly shifted the burden to the veteran
when it sought affirmative evidence of aggravation, rather than looking for clear and unmistakable
evidence that PTSD was not aggravated by service. See Tucker v. West, 11 Vet.App. 369, 374
(1998) (remand is the appropriate remedy where the Board has incorrectly applied the law or failed
to provide an adequate statement of reasons or bases for its determinations or where the record is
otherwise inadequate).
Given this disposition, the Court need not address Mr. Slagger’s additional arguments that
could not result in a remedy greater than remand. See Best v. Principi, 15 Vet.App. 18, 19 (2001).
The veteran is free on remand to submit additional evidence and argument, and has 90 days to do
so from the date of the postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App.
369, 372–73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018).
The Board must consider any such evidence or argument submitted. See Kay v. Principi,
16 Vet.App. 529, 534 (2002); see also 38 U.S.C. § 7112 (a remand must be performed in an
expeditious manner); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to
entail a critical examination of the justification for the decision.”).
II. CONCLUSION
On consideration of the foregoing, the Board’s December 15, 2017, decision is SET ASIDE
and the matter is REMANDED for further adjudication.
DATED: December 7, 2018
Copies to:
Ezra A. R. Willey, Esq.
VA General Counsel (027)

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