Veteranclaims’s Blog

August 11, 2022

FedCir Application; relationship between 38 U.S.C. § 1111 and 38 U.S.C. § 1153; Section 1153 guides the analysis of the second prong of § 1111 requiring that the condition “was not aggravated.” Specifically, § 1153 explains that in-service aggravation occurs when “there is an increase in disability during [] service.” If there is such an increase, the veteran is entitled to a “presumption of aggravation,” that is, a presumption that the veteran’s service aggravated the condition. The government can overcome this presumption by demonstrating, again by clear and unmistakable evidence, “that the increase in disability is due to the natural progress of the disease.” § 1153; Wagner, 370 F.3d at 1096;

Filed under: Uncategorized — veteranclaims @ 7:42 pm

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit


MARY LOUISE SULLIVAN, ELNORA A. MARVIN,
MARQUETTA G. BROWN, ALL SUBSTITUTED FOR
DANIEL J. WILLIAMS,
Claimants-Appellants
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1459


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4168, Judge Joseph L. Toth.


Decided: August 11, 2022


KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimants-appellants.
EVAN WISSER, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN,
Case: 21-1459 Document: 51 Page: 1 Filed: 08/11/2022
2 SULLIVAN v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.


Before REYNA, CHEN, and STARK, Circuit Judges.
CHEN, Circuit Judge.
Ms. Mary Louise Sullivan et al., substituting for Mr.
Daniel J. Williams, appeal the decision of the United States
Court of Appeals for Veterans Claims (Veterans Court) affirming
a decision of the Board of Veterans’ Appeals
(Board) denying service connection for Mr. Williams’s
schizophrenia. Williams v. Willkie, No. 19-4168, 2020 WL
5792175, at *1 (Vet. App. Sept. 29, 2020). Appellants argue
the Veterans Court legally erred by misconstruing the relationship
between 38 U.S.C. § 1111 and 38 U.S.C. § 1153
.
Specifically, Appellants argue the Veterans Court erroneously
“relied upon a legal standard that effectively placed
the burden on the veteran to show that a preexisting condition
had increased in severity while on active duty” and
improperly conflated the “presumption of soundness” under
§ 1111 with the “presumption of aggravation” under
§ 1153. Appellants’ Br. 4, 11. Because the Veterans Court
correctly interpreted the relevant statutes in accordance
with the statutory language and our precedent, we affirm.
We have jurisdiction under 38 U.S.C. § 7292 and review
the Veterans Court’s statutory interpretation de novo.
Anania v. McDonough, 1 F.4th 1019, 1022 (Fed. Cir. 2021);
Hudgens v. McDonald, 823 F.3d 630, 634 (Fed. Cir. 2016).
Section 1111 sets forth the “presumption of soundness”
whereby, in the course of assessing a veteran’s entitlement
to disability compensation, “every 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.” In other words, “the government
Case: 21-1459 Document: 51 Page: 2 Filed: 08/11/2022
SULLIVAN v. MCDONOUGH 3
must show clear and unmistakable evidence of both a
preexisting condition and a lack of in-service aggravation”
to establish that a veteran entitled to the presumption does
not have a service-connected disability. Wagner v. Principi,
370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphases added).
Section 1153 guides the analysis of the second prong of
§ 1111 requiring that the condition “was not aggravated.”
Specifically, § 1153 explains that in-service aggravation occurs
when “there is an increase in disability during [] service.”
If there is such an increase, the veteran is entitled
to a “presumption of aggravation,” that is, a presumption
that the veteran’s service aggravated the condition. The
government can overcome this presumption by demonstrating,
again by clear and unmistakable evidence, “that
the increase in disability is due to the natural progress of
the disease.” § 1153; Wagner, 370 F.3d at 1096
. To ultimately
overcome the presumption of soundness, therefore,
the government must show: (1) a preexisting condition; and
(2) lack of in-service aggravation, which the government
can establish by showing that the increase in disability is
due to natural progression and not service.
The Veterans Court correctly interpreted both statutes,
consistently and properly requiring the government
to overcome both presumptions with clear and unmistakable
evidence. The Veterans Court began by properly applying
the presumption of soundness because “[Mr.
Williams’s] entrance examination did not note the presence
of schizophrenia or any other psychiatric abnormalities.”
Williams, 2020 WL 5792175, at *3. The Veterans Court
ultimately found that the government overcame the presumption
under a correct interpretation of the statutes
that tracks our analysis above. First, the Veterans Court
found that the government satisfied the first prong of
§ 1111 with clear and unmistakable evidence that Mr. Williams’s
schizophrenia preexisted service. Id. The Veterans
Court next analyzed the second prong: whether Mr. Williams’s
condition was aggravated by service. Id. at *4. The
Case: 21-1459 Document: 51 Page: 3 Filed: 08/11/2022
4 SULLIVAN v. MCDONOUGH
Veterans Court found the government met its burden by
presenting clear and unmistakable evidence that any worsening
of Mr. Williams’s condition was attributable to the
“ongoing ebb and flow of symptoms” consistent with “a classic
presentation of schizophrenia.” Id. (internal quotations
marks omitted). This demonstrates that the Veterans
Court, both in explanation and in practice, correctly interpreted
both § 1111 and § 1153, as well as the relationship
between the two.
We also disagree with Appellants’ argument that the
Veterans Court improperly placed the burden on Mr. Williams
to demonstrate an increase in disability under
§ 1153. Appellants’ Br. 6–7; Oral Arg. at 3:48–4:14. This
challenge is based on the Veterans Court’s citation to Davis
v. Principi, 276 F.3d 1341, 1347 (Fed. Cir. 2002), where we
found that a veteran had not established entitlement to a
presumption of aggravation. However, the Veterans Court
relied on Davis only for its useful description of the definitional
portion of § 1153, namely, that “increase in disability”
in that statute “refers to ‘an overall worsening of the
disability rather than any observable increase in disability,
irrespective of temporal duration.’” Williams, 2020 WL
5792175, at *4 (quoting Davis, 276 F.3d at 1344). Appellants’
contention, at bottom, is that any citation to Davis
necessarily means that the Veterans Court placed the burden
on the veteran to show an increase in disability. That
asserted reading of the Veterans Court opinion is meritless.
As explained above, because the Veterans Court
found that Mr. Williams was entitled to the presumption of
aggravation (unlike the veteran in Davis), the Veterans
Court then correctly required the government to show lack
of in-service aggravation. Id.
Because we agree with the Veterans Court’s statutory
interpretation, we affirm.
CONCLUSION
We have considered Appellants’ remaining arguments
Case: 21-1459 Document: 51 Page: 4 Filed: 08/11/2022
SULLIVAN v. MCDONOUGH 5
and do not find them persuasive. For the foregoing reasons,
we affirm the decision of the Veterans Court.
AFFIRMED
Case: 21-1459 Document: 51 Page: 5 Filed: 08/11/2022

« Newer PostsOlder Posts »

Powered by WordPress.com.