Adams v. West

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 99-575

JIMMY D. ADAMS, APPELLANT ,

V.

TOGO D. WEST , JR.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 1, 2000 )

Ronald L. Smith, of Washington, DC, was on the pleadings for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Mary Ann

Flynn, Deputy Assistant General Counsel; and Ralph D. Davis, of Washington, DC, were on the

pleadings for the appellee.

Before KRAMER, IVERS, and GREENE, Judges.

KRAMER, Judge: The appellant, Jimmy D. Adams, appeals a December 10, 1998, decision

of the Board of Veterans' Appeals (BVA or Board) denying a claim for service connection for

adrenal insufficiency as not well grounded, remanding to a VA regional office (RO) for further

development a claim for service connection for hypothyroidism, and denying claims for service

connection for hypogonadism and growth hormone deficiency on the basis that those conditions

preexisted, and were not aggravated by, service. Record (R.) at 1-12. This appeal is timely, and the

Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The appellant has filed a brief

and reply brief, and the Secretary has filed a brief.

With regard to the remanded claim for service connection for hypothyroidism, the Board's

remand is not a final decision ripe for review, and the Court, accordingly, lacks jurisdiction over the

remanded claim. Because it lacks jurisdiction, the Court will dismiss any appeal with respect to it.

See Link v. West, 12 Vet.App. 39, 47 (1998); Marlow v. West, 11 Vet.App. 53, 55 (1998); see also

38 C.F.R. § 20.100 (1999) (Board remand not final decision). Moreover, the Court will not further

address the claim for adrenal insufficiency, which the Board denied as not well grounded. The

appellant has not raised that issue in his brief, and thus the matter is deemed abandoned. See Ford

v. Gober, 10 Vet.App. 531, 535-36 (1997) (citing Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993)).

Accordingly, because there is no appeal with respect to this claim, the Court will affirm the Board's

decision as to it. For the reasons that follow, the Court will otherwise vacate the decision of the

Board and remand a matter for further proceedings consistent with this decision.

With respect to the remaining claims for service connection for hypogonadism and for growth

hormone deficiency, the Court notes as a preliminary matter that the Board found those claims to be

well grounded, R. at 6, and that the Secretary does not dispute that finding. Upon review of the

record, the Court concludes that the Board's determination that the claims were well grounded is

correct, especially given the fact that the appellant filed his claims prior to discharge from service.

R. at 16, 232; see Hampton v. Gober, 10 Vet.App. 481, 482 (1997) (claim for left knee disability

well grounded where claim filed close in time to discharge from service, service medical records

indicate treatment for knee condition in service, and separation examination containing diagnosis

of knee condition "provides evidence of both a current left knee condition and a relationship to

service").

The Court has reviewed the record on appeal and the filings of the parties, and concludes that

the issue before it is whether the Board erred in determining that there was clear and unmistakable

evidence to rebut the presumption of sound condition upon entrance into service. See 38 U.S.C.

§ 1111 ("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"); Crowe v. Brown, 7 Vet.App. 238, 245 (1994) (Secretary's burden to rebut presumption of

soundness by clear and unmistakable evidence "is a formidable one"). "Whether or not there is such

evidence is a legal determination [that] the Court reviews de novo." Id. In essence, the evidence that

the Board determined had satisfactorily rebutted the presumption of soundness consists of the

following excerpts from an exceptionally thorough and well-written compensation and pension

examination report by Michael Lawson, M.D., dated February 27, 1998:

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Based on the initial evaluation [during service] of the [the appellant's] endocrine

deficiencies[,] at the National Naval Medical Center in Bethesda, [Maryland,] it is

my opinion that the patient was clearly hypogonadal on a central basis and also there

was compelling evidence that he was also growth hormone deficient at that time.

....

IMPRESSION:

1. The clinical record and the current evaluation established the diagnosis of central

hypogonadism with the patient currently testosterone deficient.

2. There is strong suspicion that the patient also has growth hormone deficiency

based on the evaluation[s during service] at the National Naval Medical Center in

Bethesda in 1992 and 1993, as well as the fact that he currently has a low IgF1 level.

This impression will need to be corroborated by a repeat insulin stress test following

two months of testosterone replacement.

....

Addressing issues raised specifically in the Compensation and Pension exam[ination]

request, I believe there is evidence that the [appellant's] hypogonadism and growth

hormone deficiency may have preexisted his admission to the service based on the

fact that his epiphyses were not found to be closed on his initial bone radiograph

when he was evaluated at the National Naval Medical Center in Bethesda. He also

was reported to have had a bone age of thirteen years at that time when his

chronological age was eighteen. It is equally clear that there is no evidence to

suggest that the family of the [appellant was] aware of these problems prior to his

admission to the armed services. These problems were discovered while he was on

active duty following the work-up of an anemia. The fact that the [appellant] even

currently has small, soft[,] testes and sparse body hair would also support the

likelihood that this condition existed prior to his beginning his active military

service. There is also evidence from the record at the National Naval Medical Center

that the [appellant], following his treatment with testosterone and a short treatment

with gonadotropin releasing hormone, . . . may have grown a full inch in height. His

current bone radiographs also indicate that his epiphyses are now closed, with his

having a[n] adult bone pattern. It is my own opinion that the [appellant's] problems

would not have been aggravated by his active duty service, but it is possible that

these problems may not have been addressed as comprehensively as might have been

done with his being outside of the service had he been limited to one institution with

endocrine facilities in his follow-up.

R. at 712, 715-16 (emphasis added).

The appellant argues in part that any medical opinion evidence is insufficient as a matter of

law to rebut the 38 U.S.C. § 1111 presumption of soundness, and that an opinion expressed in

equivocal terms can never amount to clear and unmistakable evidence. The Secretary replies that

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the Court's caselaw indicates that the use of medical evidence is contemplated for purposes of

rebutting the presumption of sound condition, and that, in essence, Dr. Lawson's opinion, based on

the appellant's medical history, is not equivocal. As to the former argument, the Court agrees with

the Secretary. The Court notes that nothing in the language of section 1111 precludes utilization of

such medical evidence. Indeed, the Secretary's implementing regulation, 38 C.F.R. § 3.304(b)

(1999), as the Secretary indicates, clearly calls for the use of such medical evidence. See 38 C.F.R.

§ 3.304(b)(1) (determinations whether evidence clearly and unmistakably rebuts the presumption of

soundness should be based on medical judgment, accepted medical principles, history with regard

to clinical factors pertinent to basic character, origin, development of injury or disease, and

"thorough analysis of the evidentiary showing and careful correlation of all material facts, with due

regard to accepted medical principles pertaining to the history, manifestations, clinical course, and

character of the particular injury or disease or residuals thereof"); see also Harris v. West, 203

F.3d 1347 (Fed. Cir. 2000) ("there is no absolute rule in the statute, the regulation, or the case law

requiring [contemporaneous clinical evidence or recorded history] before the presumption [of sound

condition] may be rebutted, "and post-service physician opinion may constitute requisite clear and

convincing evidence); cf. Vanerson v. West, 12 Vet.App. 254, 262 (1999) (in examining medical

opinion relied on by Board to find condition preexisted service, Court determined an opinion

expressing no view as to etiology or date of onset of condition was not clear and unmistakable

evidence sufficient to rebut presumption); Crowe, 7 Vet.App. at 245-46 (1994) (must apply factors

listed in § 3.304(b) in determining whether clear and unmistakable evidence demonstrates that injury

or disease existed prior to service).

As to the argument regarding the equivocality of Dr. Lawson's opinion, the Secretary

acknowledges in his brief that "the standard of proof for rebutting the presumption of soundness is

not merely evidence that is cogent and compelling, i.e., a sufficient showing, but evidence that is

clear and unmistakable." Secretary's Brief at 16. The Secretary further acknowledges that "the

question is not whether the Secretary has sustained a burden of producing evidence, but whether the

evidence as a whole, clearly and unmistakably demonstrates that the injury or disease existed prior

to service." Id.; see Vanerson, 12 Vet.App. at 260-61.

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A review of Doctor Lawson's opinion indicates that he is aware of nuances in language.

Dr. Lawson's use of the wording "the [appellant] was clearly hypogonadal" and "there was

compelling evidence that [the appellant] was also growth hormone deficient," R. at 712 , suggests

that there was no doubt in his mind that the two diseases for which the appellant seeks

service connection were present during service. In addition, Dr. Lawson's use of the wording, "It is

my own opinion that the [appellant's] problems would not have been aggravated by his active duty,"

R. at 716, also suggests that there was no doubt in Dr. Lawson's view that there was no aggravation

of the appellant's conditions during service. However, in opining on whether the appellant's

conditions preexisted service, he utilized the terminology "may have preexisted" and "support the

likelihood that this condition existed prior to" service. R. at 715, 716 (emphasis added). Although

the two terms in combination may support a conclusion that it is more likely than not that the

appellant's diseases preexisted service, the Court is not prepared to state at this juncture whether

those statements reached the higher requisite standard of clear and unmistakable evidence. Rather,

the Court believes it was premature, based on this report and given the closeness of this question,

for the Board to adjudicate the matter of the rebuttal of the presumption of soundness without

seeking, pursuant to the duty to assist, see 38 U.S.C. § 5107(a), clarification from Dr. Lawson as to

the degree of likelihood of preexistence, or seeking other medical opinions on this subject.

Last, the appellant argues that, pursuant to section 1111, the burden is on the Government,

at least where there has not been a noting of "defects, infirmities, and disorders . . . at the time of

examination, acceptance and enrollment" with respect to service, see 38 U.S.C. § 1111, to show by

clear and unmistakable evidence that there has not been any aggravation of the appellant's conditions

during service. Although the Court has not directly ruled on this argument, the detailed analysis as

to the process for determining aggravation set forth in Maxson v. West, 12 Vet.App. 453 (1999),

clearly suggests the contrary. See Maxson, 12 Vet.App. at 459-60 (burden on the appellant to show

well-grounded claim based on aggravation in service of preexisting disease or injury, including

evidence of permanent increase of disability). However, given the result above, the Court need not

further address the appellant's contention at this time.

For the reasons discussed above, the Board's December 10, 1998, decision, insofar as it

pertains to the appellant's claims for service connection for hypogonadism and growth hormone

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deficiency, is VACATED and that matter REMANDED for further proceedings consistent with this

decision. The Board's decision is otherwise DISMISSED in part and AFFIRMED in part.

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