Veteranclaims’s Blog

September 27, 2021

Single Judge Application; George v. McDonough, 991 F.3d 1227, 1229-30 (Fed. Cir. 2021) confirming that the law as it was understood at the time did not require VA to rebut the presumption of sound condition with clear and unmistakable evidence that the condition was not aggravated by service; 1970 presumption of sound condition; In 1970, VA’s implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal. See 38 C.F.R. §3.304(b) (1970); Instead, if the presumption of sound condition applied, the burden fell on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service preexisted service. See George, 991 F.3d at 1229-30 (noting that VA’s 1970 version of the regulation, permitting VA to rebut the presumption of soundness with only clear and unmistakable evidence that the disorder preexisted service, prevailed until 2003); 38 U.S.C. § 311 (1970) (current version § 1111);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1446
HERCULES BUTLER, APPELLANT,
V.
DENIS MCDONOUGH,
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 Hercules Butler served the Nation honorably in the U.S. Army
from July 1951 to June 1954, including service in Korea.1 In this appeal, which is timely and over
which the Court has jurisdiction,2 he contests a November 13, 2019, Board of Veterans’ Appeals
decision that found no clear and unmistakable error (CUE) in a May 1970 Board decision that
denied service connection for a nervous disorder.3 For the reasons that follow, the Court will
reverse the Board’s finding that the May 1970 Board properly applied and rebutted the presumption
of sound condition and remand the matter for the Board to reassess appellant’s CUE motion and
entitlement to service connection for anxiety disorder (originally referred to as a nervous disorder).
I. BACKGROUND
A. Before May 1970
In early May 1950, before appellant entered service, he was hospitalized by his mother
because of a “change of personality” and because he was “unable to concentrate, less interested in
1 Record (R.) at 504.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 R. at 5-13.
2
school and his home, [and because he] seemed restless[,] . . . irritable, [and] hostile to his parents.”4
During his stay in the hospital he underwent psychological evaluation. The record states that
appellant “was not observed at any time to be psychotic[,]” and his final diagnosis was “Without
Mental Disorder, Psychopathic Personality, with Asocial or Amoral Trends Manifested by
Vagabondage.”5 He left the hospital in late June 1950.
In July 1951, appellant received his service entrance examination, which did not reveal any
abnormalities, including psychiatric.6 In August 1951, during service, appellant sought treatment
for nervousness 7 and feeling anxious. 8 He was admitted into the hospital for psychiatric
observation after he collapsed and was suspected to be schizophrenic. 9 He was ultimately
discharged from the hospital and it was recommended that he be returned to duty. The hospital
report revealed that “[n]either his behavior on the ward nor repeated mental status have revealed
anything suggestive of schizophrenia,” and his final diagnosis was “[o]bservation, psychiatric. No
disorder found.”10 An undated service treatment record stated that appellant “certainly is not
schizophrenic . . . . He is mentally competent.”11
After appellant returned to duty, he was deployed to Korea and from his service there
earned the Combat Infantry Badge.12 In June 1952, after 6 months in Korea, appellant was treated
for psychiatric symptoms and was diagnosed with “anxiety reaction” that occurred during the line
of duty.13 An Army psychiatrist opined that appellant had “nervousness, mild tremor, and inability
to stand minimal stress,” diagnosed “anxiety reaction,” and declared appellant unfit for combat
4 R. at 118.
5 Id.
6 R. at 486-87.
7 R. at 538.
8 R. at 581.
9 R. at 538.
10 Id.
11 R. at 585.
12 R. at 503.
13 R. at 597, 602.
3
duty.14 In a letter summarizing appellant’s neuropsychiatric evaluation, the psychiatrist stated that
appellant’s “anxiety appeared to be combat produced.”15
In June 1954, appellant underwent a separation examination. The examination report
revealed that appellant “[h]as been nervous, shaky and jumpy on occasion since he got back from
Korea,” but the report noted no psychiatric abnormalities.16
After discharge, in April 1955, appellant underwent a VA neuropsychiatric examination
and the examiner diagnosed him with chronic, moderate anxiety reaction. 17 In summarizing
appellant’s medical history, the examiner stated that appellant “previously had an admission to a
hospital with the suggestive diagnosis of schizophrenia. This latter diagnosis was changed to
observation, psychiatric.” 18 Then on mental evaluation, the examiner stated that appellant
“displays no psychiatric manifestations nor does he give a history of psychotic symptoms.”19
In February 1968, after being denied service connection for a nervous condition multiple
times, appellant filed a claim for a psychiatric disorder. 20 In January and July 1969, appellant
underwent psychiatric evaluations at the request of VA, and the psychiatric consultant diagnosed
a personality disorder with severe episodes of anxiety.21 In October 1969, a VA regional office
(RO) continued to deny his claim for a nervous condition.22 Appellant disagreed with that decision
and ultimately appealed to the Board.
B. May 1970 Board Decision
In May 1970, the Board cited 38 U.S.C. §§ 310 (now codified at 38 U.S.C. §1110), which
provided generally that service connection could be granted for disabilities resulting from injuries
incurred in or aggravated by service. The Board applied the presumption of aggravation under 38
14 R. at 492.
15 R. at 493.
16 R. at 614.
17 R. at 2127.
18 Id.
19 Id.
20 R. at 1985; see R. at 2053, 2067, 2103-04.
21 R. at 1886.
22 R. at 1883.
4
U.S.C. § 353 (predecessor statute to §1153) and denied service connection for a nervous condition
because it “preexisted [appellant’s] military service and [was] not aggravated by such service.”23
The Board summarized the above evidence and determined that “[t]he medical evidence is
also clear that a history of mental difficulties, however diagnosed, preexisted the veteran’s service
entry.”24 The Board described the difficulties as “inability to concentrate, restlessness, irritability[,]
and hostility.”25 Then, the Board stated that there is a “striking similarity” between the preservice
symptoms and the in-service symptoms and then explained that because no further psychiatric
difficulties were noted after 1952, even on his separation examination, the preexisting condition
was not aggravated. Accordingly, the Board denied service connection.
In July 2019, appellant sought to revise the May 1970 Board decision based on CUE. He
ultimately argued that because there was no psychiatric disorder listed upon entrance into service, he was entitled to the presumption of sound condition. Had the Board applied the presumption of sound condition, appellant contends, he would have been entitled to service connection for anxiety.
C. 2019 Board Decision
In the decision on appeal, the Board found no CUE in the May 1970 Board decision
because it was “adequately supported by the evidence then of record . . . [and] it has not been
shown that the applicable statutory and regulatory provisions existing at that time were ignored or
incorrectly applied.”26 The Board relied on the May 1950 hospitalization report that revealed that
appellant was diagnosed with “psychopathic personality with asocial or amoral traits”27 to support
its conclusion that appellant was treated for mental difficulties prior to service. 28 The Board
acknowledged that a psychiatric disability had not been noted on appellant’s service entrance
examination, and the Board explained that although the 1970 Board did not explicitly discuss the
presumption of soundness or conclude that the 1950 hospitalization report was “clear and
unmistakable” evidence of a pre-existing psychiatric disability, the 1970 Board properly applied
the law. The Board determined that appellant’s arguments challenging whether the proper laws
23 R. at 1842.
24 R. at 1848.
25 Id.
26 R. at 13.
27 R. at 11.
28 Id.
5
were applied were nothing more than a disagreement with the way the evidence was weighed.
Specifically, the Board concluded that “[a] detailed review of [the Board’s May 1970 decision]
indicates a truly comprehensive assessment of the Veteran’s contentions years ago and a detailed
rationale, years prior to the implementation of judicial review on current Board decisions.”29 This
appeal followed.
II. ANALYSIS
Appellant argues that the Board’s finding of no CUE in its May 1970 decision is arbitrary
and capricious, because the evidence in 1970 was insufficient to show that his psychiatric condition
preexisted service and was not aggravated by service. In his reply brief, appellant withdrew his
argument pertaining to aggravation.30 The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) issued its decision in George v. McDonough, 31 confirming that the law as it was understood at the time did not require VA to rebut the presumption of sound condition with clear and unmistakable evidence that the condition was not aggravated by service. Therefore, the Court
will limit its review to the Board’s determination that there was clear and unmistakable evidence
that appellant’s psychiatric disability preexisted service.
The Secretary argues that because the Board determined that May 1950 hospital records
contained “some evidence against the claim,”32 appellant’s argument is nothing more than a
disagreement with the way the May 1970 Board weighed the evidence. He defends the Board’s
decision in full, asserting that there was evidence of psychiatric symptoms prior to service, and its
decision is not arbitrary or capricious. He urges us to affirm, but we disagree.
The standards governing CUE are well known. CUE is established when (1) either the
correct facts as they were known at the time were not before the adjudicator, the adjudicator made
an erroneous factual finding, or the statutory or regulatory provisions extant at the time were
incorrectly applied; (2) the alleged error is “undebatable,” rather than a mere “disagreement as to
29 R. at 12.
30 Reply Br. at 1.
31 991 F.3d 1227, 1229-30 (Fed. Cir. 2021).
32 Secretary’s Br. at 8.
6
how the facts were weighed or evaluated”; and (3) the error “manifestly changed the outcome” of
the decision.33 The Federal Circuit has recognized this CUE standard as controlling law.34
It is not easy to establish CUE in a final decision. This Court has held that an error is
“undebatable” when “‘reasonable minds could only conclude that the original decision was fatally
flawed at the time it was made.'”35 In sum, “CUE is a very specific and rare kind of ‘error’ . . . of
fact or law, that when called to the attention of later reviewers compels the conclusion, to which
reasonable minds could not differ, that the results would have been manifestly different but for the
error.”36
Our review of a Board decision finding no CUE in a prior, final RO decision is limited to
determining whether the Board’s finding was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,”37 and whether the Board’s finding was supported by an
adequate statement of reasons or bases.38
Finally, as factfinder, the Board has the responsibility to assess and weigh the evidence.39
For all its findings on a material issue of fact and law, the Board must support its factual
determinations and legal conclusions with a written statement of reasons or bases that is “adequate
to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate
review in this Court.”40 If the Board fails to do so, remand is appropriate.41
In 1970 as today, the presumption of sound condition provides that a veteran shall be
presumed to have been in sound condition when entering service, except as to “defects, infirmities,
33 Russell v. Principi, 3 Vet.App. 310, 313-14, 319 (1992) (en banc); see George (Bobby) v. Wilkie, 32 Vet.App. 318,
323-24 (2020); Simmons v. Wilkie, 30 Vet.App. 267, 274 (2018), aff’d, 964 F.3d 1381 (Fed. Cir. 2020); King v.
Shinseki, 26 Vet.App. 433, 439 (2014); Bouton v. Peake, 23 Vet.App. 70, 71-72 (2008); Damrel v. Brown, 6 Vet.App.
242, 245 (1994); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999).
34 See Cook v. Principi, 318 F.3d 134, 1345 (Fed. Cir. 2002); see also Blanton v. Wilkie, 823 F. App’x 958 (Fed. Cir.
2020).
35 Andrews v. Principi, 18 Vet.App. 177, 181 (2004) (quoting Russell, 3 Vet.App. at 313-14), aff’d sub nom. Andrews
v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005).
36 Fugo v. Brown, 6 Vet.App. 40, 43 (1993).
37 38 U.S.C. § 7261(a)(3)(A).
38 38 U.S.C. § 7104(d)(1); see Cacciola v. Gibson, 27 Vet.App. 45, 59 (2014); Eddy v. Brown, 9 Vet.App. 52, 57
(1996).
39 See D’Aries, 22 Vet.App. 97, at 107.
40 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
41 Tucker v. West, 11 Vet.App. 369, 374 (1998).
7
or disorders noted” upon a service entrance examination, “or where clear and unmistakable
evidence demonstrates that the injury or disease existed before acceptance and enrollment was not
aggravated by such service.”42 In 1970, VA’s implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal.43 Instead, if the presumption of sound condition applied, the burden fell on VA to rebut the presumption with clear and
unmistakable evidence that an injury or disease that manifested in service preexisted service.44

Here, it is undisputed that no psychiatric abnormalities were noted on appellant’s entrance
examination. As a result, it is reasonable to say that there were no psychiatric “defects, infirmities,
or disorders” were noted on appellant’s examination and acceptance into service.45 Accordingly, it
is clear that at the time of the May 1970 Board decision, the statutory presumption of sound
condition applied. The November 2019 Board acknowledged that the May 1970 Board did not
explicitly discuss the presumption of sound condition and did not expressly find clear and
unmistakable evidence of a preexisting condition. But the 2019 Board concluded that the May
1970 Board had implicitly applied the presumption of sound condition when it found that the
evidence “clearly shows” that appellant had psychiatric symptoms before service. The November
2019 Board reasoned that this finding is enough to conclude that the Board “correctly applied the
law by finding that the evidence which pre-dated service was sufficient to establish a pre-existing
psychiatric disability.”46 The evidence the Board relied on to support its decision was the May
1950 hospital record indicating appellant’s treatment for what the Board referred to as “psychiatric
difficulties.”47 In other words, the Board concluded that the May 1970 Board implied that there
was clear and unmistakable evidence of a preexisting condition and therefore the presumption of
sound condition would have been rebutted and the outcome would not have been manifestly
different. We conclude that the Board erred when it determined that the May 1970 Board correctly
applied and rebutted the presumption of sound condition.
42 38 U.S.C. § 311 (1970) (current version § 1111).
43 See 38 C.F.R. §3.304(b) (1970).
44 See George, 991 F.3d at 1229-30 (noting that VA’s 1970 version of the regulation, permitting VA to rebut the presumption of soundness with only clear and unmistakable evidence that the disorder preexisted service, prevailed until 2003)
.
45 38 U.S.C. § 311 (1970) (current version § 1111).
46 R. at 12.
47 Id.
8
The May 1950 hospitalization resulted in a diagnosis of “Without Mental Disorder,
Psychopathic Personality, without Asocial or Amoral Trends Manifested by Vagabondage.”48
Moreover, the record states that during appellant’s hospitalization, “he was not observed at any
time to be psychotic.”49 The evidence could not be any clearer that appellant did not have a
psychiatric disability during that time, or at least none that medical professionals were able to
diagnose. The Board refers to specific complaints of symptoms such as difficulty concentrating,
decreased interest in school, restlessness, irritability, and hostility towards parents, and the Board
explains that these symptoms indicated “psychiatric difficulties.” But regardless of whether the
Board explained how it came to that conclusion, it is not clear to the Court why that conclusion
would be important. As we said, to rebut the presumption of sound condition there must be “clear
and unmistakable evidence of a disease.” The evidence clearly shows that appellant did not have
a disease, nor were his symptoms attributed to any. Moreover, the law in 1970 stated that a
personality disorder was not a disease or injury.50 Thus, as a matter of law, any debate about
whether a “psychopathic personality” could be a psychiatric disease is neither here nor there.
In sum, the evidence clearly shows that the presumption of sound condition attached to
appellant’s claim and there was no “clear and unmistakable” evidence of a preexisting psychiatric
disease to rebut the presumption of sound condition. Therefore, the Court reverses the Board’s
decision to the extent that it concluded that the May 1970 Board correctly applied and rebutted the
presumption of sound condition.51
Because the Board clearly erred in finding that the presumption of sound condition had
been rebutted, it’s reliance on that fact to support its conclusion that the May 1970 Board’s reliance
on the presumption would not have manifestly changed the outcome frustrates judicial review. The
Board’s outcome-determinative analysis is incomplete because it did not address whether service
connection would have been awarded had the presumption not been rebutted. Therefore, remand
48 R. at 118.
49 Id.
50 38 C.F.R. § 3.303 (c) (1969) (“Congenital or developmental defects, refractive error of the eye, personality disorders
and mental deficiency are not diseases or injuries within the meaning of the applicable legislation.”).
51 See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).
9
is warranted for the Board to reassess appellant’s CUE motion based on the proper application of
the law.52
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address appellant’s remaining arguments, and appellant can present them to the Board.53 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s postremand notice.54 The Board must consider any such additional evidence or
argument submitted.55 The Board must also proceed expeditiously.56
III. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court
REVERSES the Board’s finding that the May 1970 Board applied and rebutted the presumption of
sound condition, SETS ASIDE the November 13, 2019, Board decision, and REMANDS this
matter for further proceedings consistent with this decision.
DATED: September 24, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
52 Tucker v. West, 11 Vet.App. 369, 374 (1998).
53 Best v. Principi, 15 Vet.App. 18, 20 (2001).
54 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
55 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
56 38 U.S.C. §§ 5109B, 7112.

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