Veteranclaims’s Blog

February 21, 2020

Single Judge Application; important difference between the assignment of the burden of proof in presumption of soundness and presumption of aggravation; rebutal of presumption of aggravation requires clear and unmistakable evidence;

Filed under: Uncategorized — veteranclaims @ 2:37 pm

Excerpt from decision below:

“If the presumption of soundness applies, VA may rebut that presumption with clear and
unmistakable evidence that an injury or disease that manifested in service both preexisted service and was not aggravated by service.9 This standard is an “onerous” one to satisfy.10 And VA can rebut the presumption of aggravation by showing clear and unmistakable evidence that the increase in disability is “due to the natural progress of the disease.”11 It is important to note, however, that the aggravation prong of the presumption of soundness should not be confused with the presumption of aggravation.12 Although these provisions contain similar language, there is an important difference between them concerning the assignment of the burden of proof. The presumption of soundness places the burden on VA to ultimately prove no aggravation, whereas the presumption of aggravation places the initial burden on the veteran to prove aggravation, i.e., increase in disability, before the burden shifts to VA for rebuttal.13
To qualify as “clear and unmistakable,” evidence “cannot be misinterpreted and
misunderstood, i.e., it [must be] undebatable.”14

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” However, after a review of the expert’s reasoning, it is unclear to the Court how that expert opinion satisfies the onerous-to-overcome clear and unmistakable evidence standard. Specifically, the expert stated that an ear infection can cause conductive hearing loss, but there is no evidence that it can cause sensorineural hearing loss. He further opined that “it is less likely than not that any hearing loss would be caused by a human shouting,” i.e., a drill instructor yelling or shouting at appellant.31 This is not the correct standard and the Board does not reconcile this discrepancy. The examiner not only uses phrasing indicating a less onerous standard, but also appears to focus on causation while explaining nothing about aggravation. It appears that the Board mischaracterized the expert’s opinion,

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0972
ALFONSO R. ALVARADO, 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: Self-represented appellant Alfonso R. Alvarado served the Nation
honorably in the United States Marine Corps from January to July 1974.1 In this appeal, which is timely and over which the Court has jurisdiction,2 he contests a December 11, 2018, Board of Veterans’ Appeals decision that denied entitlement for right and left ear hearing loss.3 Because the Board failed to assess the right ear hearing loss claim under the presumption of aggravation and provided inadequate reasons or bases when it assessed whether the presumption of soundness had been rebutted for the left ear hearing loss claim, we will set aside the decision and remand this matter for further proceedings.

I. ANALYSIS
Establishing service connection generally requires evidence of (1) a current disability; (2)
in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed
1 Record (R.) at 2369.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 R. at 4-21.
2
in-service disease or injury and the present disability.4 When no preexisting medical condition is
noted upon entry into service, VA presumes the veteran was sound in every respect.5 This statutory
provision of section 1111 is referred to as the “presumption of soundness,”6 which ordinarily satisfies the second element of service connection without further proof.7 However, if a preexisting medical condition is noted at the entrance examination, it may be entitled to service connection only if the condition or disability increased in severity during service, this is sometimes referred to as the “presumption of aggravation” under section 1153.8
If the presumption of soundness applies, VA may rebut that presumption with clear and
unmistakable evidence that an injury or disease that manifested in service both preexisted service and was not aggravated by service.9 This standard is an “onerous” one to satisfy.10 And VA can rebut the presumption of aggravation by showing clear and unmistakable evidence that the increase in disability is “due to the natural progress of the disease.”11 It is important to note, however, that the aggravation prong of the presumption of soundness should not be confused with the presumption of aggravation.12 Although these provisions contain similar language, there is an important difference between them concerning the assignment of the burden of proof. The presumption of soundness places the burden on VA to ultimately prove no aggravation, whereas the presumption of aggravation places the initial burden on the veteran to prove aggravation, i.e.,
increase in disability, before the burden shifts to VA for rebuttal.13
To qualify as “clear and unmistakable,” evidence “cannot be misinterpreted and
misunderstood, i.e., it [must be] undebatable.”14
The Court reviews de novo the question whether
4 See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2019).
5 Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
6 38 U.S.C. § 1111; Horn v. Shinseki, 25 Vet.App. 231, 234 (2012).
7 Horn, 25 Vet.App. at 236.
8 38 U.S.C. § 1153; 38 C.F.R. 3.306 (2019).
9 See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) (2019); see also Wagner, 370 F.3d at 1096.
10 Horn, 25 Vet.App. at 235 (quoting Laposky v. Brown, 4 Vet.App. 331, 334 (1993)).
11 38 U.S.C. § 1153; Horn, 25 Vet.App. at 235 n.6 (citing Wagner, 370 F.3d at 1096); 38 C.F.R. § 3.306(b) .
12 Horn, 25 Vet.App. at 238.
13 Id.; compare 38 U.S.C. § 1111, and 38 C.F.R. § 3.304 (2018), with 38 U.S.C. § 1153, and 38 C.F.R. § 3.306 (2019).
14 Vanerson v. West, 12 Vet.App. 254, 258 (1999).
3
the Board applied the correct legal standard,15 as well as “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.”16 The Board’s findings and conclusions on
material issues of fact and law require a written statement of its reasons or bases.17 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.”18 If the Board fails to do so, remand is appropriate.19
Liberally construing his arguments, the Court finds appellant argues that the Board erred
when it relied on insufficient evidence to rebut the presumption of aggravation and the second
prong of the presumption of soundness. He specifically seems to disagree with the Board’s heavy
reliance on the VA specialist opinion over other medical opinions of record.20 The Secretary argues
to the contrary and urges the Court to affirm the Board decision.
Here, the Board correctly stated that appellant’s right ear hearing loss was noted upon
entrance into service and that his left ear hearing loss was not. The Board then assessed both claims
together and concluded that service connection is not warranted for right or left ear hearing loss
because they had not been aggravated beyond the normal progress of the disorders during service.21
To support its conclusion, the Board relied heavily on the November 2017 VA expert opinion. The
Board explained that because there was a conflict with the in-service audiograms, the Board
obtained the opinion from a medical expert, a VA otolaryngologist, to resolve the discrepancies.
The expert discussed the conflicting audiograms, explained the discrepancies, and reviewed
postservice evidence before concluding that it was “less likely than not” that appellant’s preexisting
right and left ear hearing loss “was caused or aggravated beyond the normal progress of the
disorder during service.”22 The examiner also opined that there is clear and unmistakable evidence
15 38 U.S.C. § 7261(a)(1), (a)(3)(A); see Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).
16 Horn, 25 Vet.App. at 236.
17 38 U.S.C. § 7104(d)(1); Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).
18 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
19 Tucker v. West, 11 Vet.App. 369, 374 (1998).
20 Appellant’s Informal Brief at 2-8.
21 R. at 18-19 (“[T]he Veteran’s pre-existing right ear hearing loss was not aggravated beyond the normal progress of
the disorder . . . [and] clear and unmistakable evidence demonstrates that the Veteran’s left ear hearing loss disability
was not aggravated in service beyond the normal progress of the disorder.”).
22 R. at 222.
4
that the left ear hearing loss was not aggravated in service beyond the normal progress of the
disorder.23 The examiner addressed appellant’s lay statements and private examinations reports,
particularly one discussing an in-service left ear infection, explaining that an ear infection would
have resulted in conductive hearing loss, which is not the type of hearing loss that afflicts
appellant.24
After summarizing the November 2017 expert opinion, the Board determined that the
opinion outweighed the other evidence of record, including a February 2018 private examination
report and lay evidence. Specifically, the Board found that the VA expert opinion “holds
substantially greater probative weight than this private opinion as it was based on the entirety of
the record, including the Veteran’s accepted report of an ear infection with an analysis of how that
infection would not have resulted in sensorineural hearing loss.”25 The Court concludes that the
Board’s statement of reasons or bases is inadequate.
First, although the Board found that right ear hearing loss preexisted service and listed
evidence suggesting worsening during service, in discussing relevant law in its analysis the Board
did not discuss the presumption of aggravation or cite section 1153 or § 3.306. The Board did not
find whether appellant demonstrated that his right ear hearing loss increased in service before the
Board assessed whether VA could rebut the presumption of aggravation.26 The Board instead
concluded that appellant’s “pre-existing right ear hearing loss was not aggravated beyond the
normal progress of the disorder during military service” and then immediately concluded that
“clear and unmistakable evidence demonstrates that [appellant’s] pre-existing left ear hearing loss
disability was not aggravated in service beyond the normal progress.”27 It appears that the Board
assessed the right ear and the left ear claims differently, but the Board failed to recognize that clear
and unmistakable evidence is also required for VA to rebut the presumption of aggravation.28
Based on the Board’s assessment and intermixed discussion of the right and left ear hearing loss
claims, it is unclear to the Court whether the Board properly applied the presumption of
23 R. at 222-23.
24 R. at 223.
25 R. at 20.
26 See Wagner, 370 F.3d at 1096.
27 R. at 19.
28 38 U.S.C. § 1153; Horn, 25 Vet.App. at 235 n.6 (citing Wagner, 370 F.3d at 1096); 38 C.F.R. § 3.306(b).
5
aggravation to appellant’s right ear hearing loss claim. The Court therefore concludes that judicial
review is frustrated and remand is necessary.29
Regarding the Board’s assessment of left ear hearing loss, the Court concludes that the
Board provided inadequate reasons or bases for concluding that VA had successfully rebutted the
presumption of soundness. The Board based its decision primarily on the November 2017 VA
expert’s opinion that
it is less likely than not that [appellant’s] left ear sensorineural hearing loss, which
existed prior to service, was caused by or aggravated beyond the normal progress
of the disorder during service and there is clear and unmistakable evidence that

appellant’s hearing loss was not aggravated in service beyond the normal progress
of the disorder, including as a result of the alleged left ear infection.[30]
However, after a review of the expert’s reasoning, it is unclear to the Court how that expert opinion satisfies the onerous-to-overcome clear and unmistakable evidence standard. Specifically, the expert stated that an ear infection can cause conductive hearing loss, but there is no evidence that it can cause sensorineural hearing loss. He further opined that “it is less likely than not that any hearing loss would be caused by a human shouting,” i.e., a drill instructor yelling or shouting at appellant.31 This is not the correct standard and the Board does not reconcile this discrepancy. The examiner not only uses phrasing indicating a less onerous standard, but also appears to focus on causation while explaining nothing about aggravation. It appears that the Board mischaracterized the expert’s opinion, and it is not clear from the Board’s discussion why it relied so heavily on such
evidence to support its conclusion that the presumption of soundness had been rebutted.
Accordingly, the Court concludes that remand is warranted for the Board to reevaluate and reweigh
the evidence of record with respect to the aggravation prong of the presumption of soundness.32
The Court also notes that, subject to appellant’s right to submit evidence on remand, the
Board must make its assessment concerning the rebuttal of the presumption of soundness on the
record as it exists now. As the Federal Circuit recognized in Worley v. Wilkie, in a similar situation
concerning the rebuttal of a presumption, “it is error for the Veterans Court to suggest that the
Secretary may expand the record with additional medical evidence if the current record is
29 See Tucker v. West, 11 Vet.App. 369, 374 (1998); Gilbert, 1 Vet.App. 49, 52 (1990).
30 R. at 223.
31 R. at 234.
32 See Tucker, 11 Vet.App. at 374; Gilbert, 1 Vet.App. at 52.
6
inadequate to meet the Secretary’s burden.”33 While Worley is not a precedential decision, it sets
out a rule that makes sense to us in this context. We adopt it as our own.
The Board is directed to apply the correct legal standard concerning the rebuttal of the
presumptions on the record that currently exists subject only to appellant’s rights to submit
additional evidence. If, under the correct standard, the evidence as it currently stands is not
sufficient to rebut the presumptions, the Board shall proceed on the basis that the presumptions
remain in place and adjudicate appellant’s claim on that basis.
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.34 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s postremand notice.35 The Board must consider any such additional evidence or
argument submitted.36 The Board must also proceed expeditiously.37
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the December 11, 2018, Board decision and REMANDS this matter for proceedings
consistent with this decision.
DATED: February 20, 2020
Copies to:
Alfonso R. Alvarado
VA General Counsel (027)
33 Worley v. Wilkie, 756 F. App’x 996, 997 (Fed. Cir. 2019).
34 Best v. Principi, 15 Vet.App. 18, 20 (2001).
35 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
36 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
37 38 U.S.C. §§ 5109B, 7112.

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