Veteranclaims’s Blog

April 18, 2019

Single Judge Decision; aggravation prong of the presumption of soundness;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-5049
ORLANDO PEREZ, 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: Marine Corps veteran Orlando Perez appeals a December 7, 2017, Board
of Veterans’ Appeals decision that denied disability compensation for asthma. The appeal is timely,
the Court has jurisdiction to review the Board’s 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 review the Board’s application of the presumption of soundness. Mr. Perez
argues that the Board’s decision should be reversed because the presumption of soundness applied
and was not rebutted. The Secretary agrees that the Board erred in finding the presumption
rebutted, but argues that remand, rather than reversal, is the appropriate remedy. Because the Board’s decision shows that VA, after having ample opportunity to develop the record, did not obtain clear and unmistakable evidence sufficient to rebut the aggravation prong of the presumption of soundness, we will reverse the Board’s determination that the presumption had been rebutted, and we will remand the December 2017 decision for the Board to address whether the remaining elements of service connection have been met.
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I. BACKGROUND
When Mr. Perez entered active duty in February 1974, his entrance examination did not
note asthma or any other respiratory disorder. In April 1974, the veteran was treated for bronchitis
and pneumonia. During this hospitalization, medical workers “determined that he has asthma as a
predisposing factor,” and, in May 1974, a military physical evaluation board was convened to
determine whether he was fit for service. Record (R.) at 419. The military board’s report noted that
the veteran admitted having experienced episodic wheezing in the past and that he had been
hospitalized at ages 10 and 11 for bronchitis and wheezing. However, he had not been diagnosed
with asthma or prescribed any medication for the treatment of that condition. The medical board
recommended discharge, and the veteran was separated from service on May 29, 1974.
In 2009, Mr. Perez filed his current claim for asthma. VA spent the next 9 years developing
his claim for benefits. In May 2014, after a remand for additional development, VA provided Mr.
Perez with a hearing before the Board. At this hearing, the veteran testified that he had been in
“perfect health” upon entry to service. R. at 208. He stated that he had not had asthma as a child,
and he denied telling a military doctor that he had been hospitalized for wheezing or bronchitis.
According to the veteran, his current asthma symptoms developed in service and, since service,
have been severe enough to require the use of albuterol inhalers.
In August 2016, the Board remanded Mr. Perez’s claim for further development. The Board
ordered VA to obtain a medical examination that addressed whether the veteran’s asthma had
preexisted service and, if so, whether the preexisting condition had been aggravated by service.
The Board asked that the examiner specifically identify the supporting evidence.
VA obtained a medical examination in December 2016. The conclusion reached by the
examiner was that Mr. Perez’s asthma was a preexisting condition not caused or aggravated by
service. Pointing to the military board and hospital service records, the examiner noted that the
veteran had been hospitalized and diagnosed with exertional shortness of breath at 11 and 12 years
old and hospitalized again during service. The examiner did not address why he found that the
veteran’s asthma had not been aggravated by service.
In the decision here on appeal, the Board denied compensation for asthma because it found
the presumption of soundness had been rebutted. Regarding aggravation, the Board found that “the
totality of the evidence indicates that the [v]eteran’s asthma clearly and unmistakably did not
worsen beyond a normal progression during service.” R. at 11. The Board “acknowledge[d] that
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the [v]eteran was asymptomatic at entrance” and was “competent to report that he experienced
respiratory symptoms and asthma during and since service.” R. at 9. However, the Board found
the veteran’s lay assertions were entitled to little probative weight because they were contradictory
and outweighed by the December 2016 examination.1 The Board explained that it found the 2016
examination highly probative because the examiner offered a specific and well-reasoned opinion
that “the lack of chronic complaints related to . . . asthma in service clearly indicated a lack of
permanent worsening.” R. at 10.
II. ANALYSIS
When no preexisting medical condition is noted upon entry into service, VA presumes the
veteran was sound in every respect. 38 U.S.C. § 1111; 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). The Secretary may rebut the presumption by presenting
clear and unmistakable evidence that an injury or disease that manifested in service was both
preexisting and not aggravated by service. 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.”); Wagner, 370 F.3d at 1096. If the
Secretary is unable to rebut either prong of the presumption, the disease or injury that manifested
in service is deemed incurred in service. See Horn, 25 Vet.App. at 235.
To rebut the presumption that a condition was aggravated by service, the Secretary bears
the onerous burden of establishing, by clear, unmistakable, and affirmative evidence, that the
preexisting condition did not increase in disability during service or that any increase in disability
resulted from the natural progression of the condition. Horn, 25 Vet.App. at 235; see Wagner,
370 F.3d at 1096. In making this determination, the Board must not rely on the absence of evidence
as substantive negative evidence; doing so in the context of the presumption of soundness would
result in impermissible burden shifting. Horn, 25 Vet.App. at 239. Furthermore, if the Board relies
on a medical examination to rebut the presumption of soundness, then it must ensure that the
1 The Board refers to a January 2017 VA examination, but the Court finds this is a typographical error because
the 2016 examination report was printed in January 2017, and the substance of the examination discussed by the Board
is the same as the December 2016 VA medical examination.
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examiner’s conclusions are supported by an articulated and sound rationale. Id. at 241 (“[T]he
concerns for articulated, sound reasoning underlying [a medical examination] are at their zenith
when VA attempts to carry its burden of rebutting either prong of the presumption of soundness
by clear and unmistakable evidence.”); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301
(2008) (explaining that, in general, a medical report cannot merely draw conclusions from data;
rather, it should include “a reasoned medical explanation connecting the two”). The Court reviews
“de novo a Board decision concerning the adequacy of the evidence offered to rebut the
presumption of soundness.” Horn, 25 Vet.App. at 236 (citing Miller v. West, 11 Vet.App. 345, 347
(1998)).
Here, the Board found that the “post-service evidence, coupled with the service treatment
records, constitutes clear and unmistakable evidence that there was no chronic aggravation.” R. at

  1. The Board explained that the unfavorable 2016 VA examination was highly probative and that
    Mr. Perez’s lay statements were contradictory and not supported by the evidence of record, which
    the Board found included no assertions or evidence “of anything other than an acute exacerbation
    during service.” R. at 9.
    The Board erred in finding that the 2016 VA opinion provided clear and unmistakable
    evidence sufficient to rebut the aggravation prong of the presumption of soundness. Contrary to
    the Board’s statement, the examiner did not find that “the lack of chronic complaints related to
    asthma in service clearly indicated a lack of permanent worsening.” R. at 10. In fact, the examiner
    did not address worsening at all. See R. at 54-58. Furthermore, although the examiner ultimately
    concluded that Mr. Perez’s asthma was not aggravated by service, he offered no rationale to support
    that conclusion. Id. As this Court explained in Horn, a bare conclusion, without supporting
    rationale, does not provide the clear and unmistakable evidence needed to rebut the presumption
    of soundness. 25 Vet.App. at 241. Because the examiner offered no explanation for why he found
    the veteran’s asthma had not been aggravated by service, the Board erred in finding that this
    examination provided the clear and unmistakable evidence needed to rebut the presumption of
    soundness. See id.
    The Board also erred in finding that the veteran’s lay statements were contradictory. The
    record does not include statements by the veteran that contradict either his current contention that
    his asthma symptoms worsened during service or his assertion that, since service, he has needed
    to treat his asthma symptoms with albuterol inhalers. Although the Board found the veteran’s
    5
    statement was “contradictory” because he did not allege an increase in symptom severity while
    hospitalized during service, R. at 9, Mr. Perez explicitly stated during his hospitalization that he
    “ha[d] had difficulty with breathing during training,” R. at 427. The Court additionally observes
    that the veteran, who the Board found was “asymptomatic” upon entry to service, R. at 9, was
    hospitalized precisely because his asthma symptoms had recently worsened.
    The Board also found that the lay statements were contradictory because “post-service
    treatment records do not reflect a history of treatment for asthma exacerbations prior to 2009.” R.
    at 9. The Board, however, may not determine that lay evidence lacks credibility solely because it
    is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d
    1331, 1337 (Fed. Cir. 2006). Furthermore, Mr. Perez stated that he treated his asthma symptoms
    with over the counter medication. R. at 218.
    Finally, the Board found it significant that “until [the veteran] filed his claim for service
    connection, he did not complain of an increasing severity of his asthma related to his service.” R.
    at 9. The veteran, however, clearly sought treatment during service for increased asthma
    symptoms, and, in any event, “the Board may not disregard a claimant’s testimony simply because
    he or she stands to gain monetary benefits.” Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991).
    Overall, the Court is left with the definite and firm conviction that the Board erred in
    finding that the veteran’s lay statements were contradictory and therefore lacked credibility. It
    appears that the Board found the veteran’s statement was “contradictory” because the veteran’s
    allegations were not independently corroborated by the medical evidence of record, which is
    improper. See R. at 9 (noting that “the [v]eteran’s unsubstantiated lay statements” are the only
    evidence of worsened asthma symptoms); see also Buchanan, 451 F.3d at 1337. Moreover, the
    in-service hospital notation that the veteran had trouble breathing during military training clearly
    supports the veteran’s current assertions that his asthma was worsened by service. Because we are
    left with the definite and firm conviction that the Board erred, we will reverse the Board’s
    credibility finding as clearly erroneous. See Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en banc)
    (Court reviews findings of fact under the “clearly erroneous” standard of review); see also Gilbert
    v. Derwinski, 1 Vet.App. 49, 52 (1990) (‘”A finding is “clearly erroneous” when although there is
    evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
    conviction that a mistake has been committed.”‘ (quoting United States v. U.S. Gypsum Co.,
    333 U.S. 364, 395 (1948))).
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    Furthermore, the mere fact that the available medical records do not address asthma
    symptoms is not enough to rebut the presumption of soundness. As we explained in Horn, the
    Secretary “may not rest on the notion that the record contains insufficient evidence of aggravation,

[but, rather,]

must rely on affirmative evidence to prove that there was no aggravation.”).
25 Vet.App. at 235. Under section 1111, the burden is on the Government to show by clear and
unmistakable evidence that there was no increase in disability in service or that any increase was
due to the natural progress of the disease. Wagner, 370 F.3d at 1096. Because the only affirmative
evidence regarding the severity of the veteran’s symptoms is his testimony that the symptoms
worsened during service, the Board erred in finding clear and unmistakable evidence sufficient to
rebut the aggravation prong of the presumption of soundness. See id.; see also Horn, 25 Vet.App.
at 235.
The Secretary argues in favor of remand for the Board to obtain an additional medical
examination. “After VA and the Board have had a full opportunity to develop the record, however,
the Court’s role is basically to assess whether the Secretary has succeeded in carrying his burden.”
Horn, 25 Vet.App. at 243. Mr. Perez’s claim has been pending for nearly a decade, and VA has
twice remanded it to obtain additional evidence. The evidence obtained by the Secretary shows
that the veteran entered service with no asthma symptoms, complained of trouble breathing during
military training, and was treated for asthma-related complications during service. The only record
evidence to address post-service worsening is the veteran’s favorable lay evidence, which the
Board clearly erred in rejecting. The evidence is not susceptible to more than one interpretation,
cf. Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming this Court’s remand of
a presumption of soundness case when the medical evidence required clarification), nor is the
Board’s statement of reasons or bases so poorly articulated that it frustrates judicial review, see
Allday v. Brown, 7 Vet.App. 517, 527 (1995) (the Board’s explanation must be clear enough to
“facilitate review in this Court”). Rather, the evidence before the Board clearly shows that the
Secretary did not meet his burden of presenting clear and unmistakable evidence sufficient to rebut
the aggravation prong of the presumption of soundness. We therefore will reverse the Board’s
erroneous determination that the presumption of soundness had been rebutted. See Horn,
25 Vet.App. at 243.
This does not end our inquiry, however, because, even when the presumption applies and
has not been rebutted, a claimant nonetheless must demonstrate the existence of a current disability
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and a nexus between that disability and the injury or disease in service. See id. at 236-37. The
Board did not address whether there is a connection between service and the veteran’s current
disability. Remand is warranted for the Board to do so in the first instance. See Hensley v. West,
212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (when a court of appeals reviews a lower court’s decision,
it may remand it if the previous adjudicator failed to make findings of fact essential to the decision).
Because the claim is being remanded, the Court need not address Mr. Perez’s additional
arguments that would result in no broader remedy than a remand. See Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”). In pursuing his claim on remand, the veteran will be free to submit additional argument
and evidence, and he 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 Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the justification
for the decision.”).
III. CONCLUSION
On consideration of the foregoing, the Board’s determination that the presumption of
soundness was rebutted is REVERSED. The remainder of the Board’s December 7, 2017, decision
is SET ASIDE and the matter is REMANDED for further adjudication.
DATED: April 17, 2019
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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