Veteranclaims’s Blog

February 19, 2020

Single Judge Application; presumption of soundness; sleep apnea; section 1111; line of duty determination is binding on the Secretary under 38 C.F.R. § 3.1(m);

Filed under: Uncategorized — veteranclaims @ 10:33 pm

from Decision Below:

” The presumption of soundness provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. [6]
VA’s implementing regulation further states that “[o]nly such conditions as are recorded in examination reports are to be considered as noted.”7
Having determined that the presumption applied, the Board then considered whether it had been rebutted. “[T]he correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service.”8 This standard is an “onerous” one to satisfy.9 Moreover, “[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and aggravation prongs; it never shifts back to the claimant.”10
To qualify as “clear and unmistakable,” evidence “cannot be misinterpreted and
misunderstood, i.e., it [must be] undebatable.”11 “The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness, while giving deferential treatment to the Board’s underlying factual findings and determinations of credibility.”12
4 Id.
5 See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
6 38 U.S.C. § 1111.
7 38 C.F.R. § 3.304(b).
8 Warner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004).
9 Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (quoting Laposky v. Brown, 4 Vet.App. 331, 334 (1993)).
10 Id. at 235.
11 Vanerson v. West, 12 Vet.App. 254, 258 (1999).
12 Horn, 25 Vet.App. at 236 (2012).
3
The Board concluded that both prongs necessary to rebut the presumption had been
satisfied under the demanding standard we have described.13 The Secretary concedes that the Board erred with respect to both prongs.14 The Court agrees.
As to the preexistence prong, the Secretary states that the Board failed to consider a
December 2005 Army line of duty determination providing that appellant’s sleep apnea was incurred during service.15 As the Secretary correctly recognizes, this line of duty determination is binding on the Secretary under 38 C.F.R. § 3.1(m).16 So, the Board ignored evidence showing affirmatively (and authoritatively) that appellant’s sleep apnea did not preexist service.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-5028
JOSEPH P. CHAMP, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Joseph Champ served the Nation honorably in the United States Army. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests a May 22, 2018, decision of the Board of Veterans’ Appeals that denied service connection for sleep apnea.2 Because the Board erred when assessing whether the presumption of soundness had been
rebutted, we will reverse the Board’s determination that it had been and remand the matter for the Board to consider appellant’s service connection-claim with the presumption in place.
I. ANALYSIS
The Board determined that the statutory presumption of soundness applied to appellant’s
claim seeking service connection for sleep apnea.3 Specifically, concerning whether sleep apnea was noted on appellant’s entrance examination, the Board concluded that because appellant’s
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 3-14.
3 R. at 8.
2
service records were not available, it would resolve doubt in appellant’s favor.4 This is a favorable
determination we may not review.5
The presumption of soundness provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. [6]
VA’s implementing regulation further states that “[o]nly such conditions as are recorded in examination reports are to be considered as noted.”7
Having determined that the presumption applied, the Board then considered whether it had been rebutted. “[T]he correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service.”8 This standard is an “onerous” one to satisfy.9 Moreover, “[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and aggravation prongs; it never shifts back to the claimant.”10
To qualify as “clear and unmistakable,” evidence “cannot be misinterpreted and
misunderstood, i.e., it [must be] undebatable.”11 “The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness, while giving deferential treatment to the Board’s underlying factual findings and determinations of credibility.”12
4 Id.
5 See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
6 38 U.S.C. § 1111.
7 38 C.F.R. § 3.304(b).
8 Warner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004).
9 Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (quoting Laposky v. Brown, 4 Vet.App. 331, 334 (1993)).
10 Id. at 235.
11 Vanerson v. West, 12 Vet.App. 254, 258 (1999).
12 Horn, 25 Vet.App. at 236 (2012).
3
The Board concluded that both prongs necessary to rebut the presumption had been
satisfied under the demanding standard we have described.13 The Secretary concedes that the Board erred with respect to both prongs.14 The Court agrees.
As to the preexistence prong, the Secretary states that the Board failed to consider a
December 2005 Army line of duty determination providing that appellant’s sleep apnea was incurred during service.15 As the Secretary correctly recognizes, this line of duty determination is binding on the Secretary under 38 C.F.R. § 3.1(m).16 So, the Board ignored evidence showing affirmatively (and authoritatively) that appellant’s sleep apnea did not preexist service.

The Board also relied on a February 2018 VA medical opinion as evidence to affirmatively
establish that appellant’s sleep apnea preexisted service.17 This opinion is inadequate as a matter
of law to rebut the preexistence prong of the presumption because the examiner used an incorrect
standard to render an opinion. The examiner concluded the appellant’s sleep apnea “most likely”
preexisted service.18 This does not meet the onerous clear and unmistakable evidence standard.19
Based on the two errors we have discussed, we conclude that the Board’s determination
that the presumption of soundness was rebutted is incorrect.20 The dispute between the parties on
appeal is about remedy. Appellant argues for reversal. For his part, the Secretary urges that we
remand. Essentially, he asks us to let the Government try again to meet its onerous burden to rebut
the presumption. That’s not how this process works.
We have noted before that “it would be improper to remand [a] case in the face of medical
evidence that is plainly insufficient to rebut the presumption of soundness.”21 And the Federal
13 R. at 10.
14 See Secretary’s Brief (Br.) at 6-9.
15 Id. at 8; see R. 374 (Dec. 2005 Army line of duty determination).
16 Secretary’s Br. at 8-9.
17 R. at 10.
18 R. at 132.
19 See Horn, 25 Vet.App. at 235; Vanerson, 12 Vet.App. at 258.
20 As noted above, the Secretary also concedes that the Board erred concerning the aggravation prong. See Secretary’s
Br. at 8-9. We need not spend much time on this issue because the Board’s failure concerning the preexistence rebuttal
prong is determinative. Suffice it to say, we accept the Secretary’s concession that the Board erred in this regard
because the Board relied on the absence of evidence of aggravation instead of affirmative evidence showing no
aggravation. See R. at 11. This is legal error because the Board effectively shifted the burden of proof to appellant,
though in this context the burden always stays with the Secretary. See Horn, 25 Vet.App. at 235.
21 Horn, 25 Vet.App. at 244.
4
Circuit made a similar point, though in a nonprecedential decision, reasoning that “it is error for
the Veterans Court to suggest that the Secretary may expand the record with additional medical
testimony if the current record is inadequate to meet the Secretary’s burden.”22 In other words,
what the Secretary suggests here would unfairly provide VA with another opportunity to meet its
burden by “generat[ing] more evidence to make up [its] shortfall.” 23 Fundamentally, we
recognized what can be said more colloquially that what is good for the goose is good for the
gander:
[T]here is a certain uniformity of treatment of similarly situated parties before the
Court that is necessary to the appearance of fairness. The Court would not remand
a case when a veteran fails to carry a point on which he or she has the burden of
proof. It would be unseemly to so accommodate VA and the Board as to matters on
which the Government has the burden of proof.[24]
The resolution of this appeal is simple. Appellant was entitled to a presumption Congress
created. VA had the “onerous” burden to rebut that presumption. It assembled evidence in an
attempt to do so. We all agree the evidentiary record before the Board was insufficient. The
Government had its shot and it failed to meet its congressionally mandated burden. So, we will
reverse the Board’s conclusion that the presumption of soundness was rebutted and remand this
matter for VA to adjudicate appellant’s claim for service connection for sleep apnea with the
presumption of soundness in place.
There is one final matter we must address, this one concerning appellant’s alternative claim
that his sleep apnea should be service connected as secondary to his service-connected back or
knee disabilities. The Secretary concedes the Board’s statement of reasons or bases for denying
service connection on this basis is deficient.25 Though it may not matter on remand given our ruling
on the presumption of soundness issue, we agree with the Secretary’s concession. The Board made
its own medical judgment concerning whether appellant’s knee and back disabilities could have
caused him to gain weight in a certain period sufficient to lead to sleep apnea.26 As the Secretary
22 Worley v. Wilkie, 756 F. App’x 996, 997 (Fed. Cir. 2019).
23 Horn, 25 Vet.App. at 244.
24 Id.
25 See Secretary’s Br. at 9.
26 See R. at 11.
5
recognizes,27 this is a medical determination the Board can’t make.28 Should the Board need to
address secondary service connection on remand, it should be sure to faithfully apply Colvin.
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board if
necessary.29 On remand, appellant may submit additional evidence and argument and has 90 days
to do so from the date of VA’s postremand notice.30 The Board must consider any such additional
evidence or argument submitted.31 The Board must also proceed expeditiously.32
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court
REVERSES the May 22, 2018, Board decision to the extent it found the presumption of soundness
has been rebutted and REMANDS this matter for the Board to adjudicate appellant’s claim with
the presumption in place.
DATED: February 18, 2020
Copies to:
David M. Sonenshine, Esq.
VA General Counsel (027)
27 See Secretary’s Br. at 9.
28 See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).
29 Best v. Principi, 15 Vet.App. 18, 20 (2001).
30 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
31 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
32 38 U.S.C. §§ 5109B, 7112.

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