Dale S. Horn v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 10-0853

DALE S. HORN, APPELLANT,

v.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued March 27, 2012 Decided June 21, 2012 )

Kenneth M. Carpenter of Topeka, Kansas, for the appellant.

Ronen Morris and Carolyn F. Washington, Deputy Assistant General Counsel, with whom

Will A. Gunn, General Counsel, R. Randall Campbell, Assistant General Counsel, and Thomas C.

Earp, Appellate Attorney, were on the brief, all of Washington, D.C., for the appellee.

Before LANCE, DAVIS and SCHOELEN, Judges.

DAVIS, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting opinion.

DAVIS, Judge: U.S. Army veteran Dale S. Horn appeals through counsel from a November

18, 2009, Board of Veterans' Appeals (Board) decision that denied service connection for a left hip

disorder. The Board acknowledged and the parties agree that the appellant's induction examination

report noted no hip condition and therefore the presumption of soundness applies.

The principal issue before the panel is whether a medical examination board (MEB) report

containing only an unexplained "X" in a box on a form can constitute clear and unmistakable

evidence of lack of aggravation. For the following reasons, the Court holds that such evidence is

insufficient to rebut the aggravation prong of the presumption of soundness. Accordingly, the Court

will reverse the Board's November 2009 decision insofar as it pertains to the rebuttal of the

aggravation prong of the presumption of soundness and remand the claim for a hip condition for

further proceedings consistent with this decision.

I. BACKGROUND

The appellant had one month and three weeks of active duty service, from October 1, 1970,

to November 24, 1970. His induction examination report included no indication of any hip

condition or other defect of the lower extremities. The report indicated that he was fit for induction

and gave the highest rating in each of the PULHES categories1 except his eyesight.

During the first three weeks of basic training, however, he complained of left hip pain. In

a report dated October 29, 1970, Army physicians diagnosed Legg-Calve-Perthes disease2

(hereinafter Legg-Perthes disease) and recommended a medical evaluation board (MEB) "for

consideration of separation from the Service under the provisions of AR 635-200," which pertains

to "Separation for Convenience of the Government." Record (R.) at 234. The MEB report, dated

November 17, 1970, stated that the appellant was medically fit for retention under then-current

medical fitness standards, but diagnosed Legg-Perthes disease, indicating with an "X" that the

condition existed prior to service and was not aggravated by active duty. See R. at 230. The medical

board also recommended separation under "UPAR 635-200, chapter 5" (R. at 231), and the

appellant's Form DD-214, Certificate of Release or Discharge from Active Duty, confirms that

separation was under this provision.

1

PULHES is a rating system widely employed by armed services physicians in examination reports for induction

and separation. The "P" stands for "physical capacity or stamina"; the "U" for "upper extremities"; the "L" for "lower

extremities"; the "H" for "hearing and ear"; the "E" for "eyes"; and the "S" for "psychiatric." See McIntosh v. Brown,

4 Vet.App. 553, 555 (1993). A rating of "1" in any of the six categories, the highest rating, means that the inductee's

condition in that category should not result in any limitations in military assignments. Id. Ratings from "2" to "4"

indicate the existence of physical conditions that will result in progressively more severe restrictions on the assignments

that the inductee may be given. Id.

2

"Legg-Calve-Perthes disease" is "osteochondrosis of the capitular epiphysis of the femur." DORLAND'S

ILLUSTRATED MEDICAL DICTIONARY 537 (32d ed. 2012). An "epiphysis" is "the expanded articular end of a long bone."

Id. at 634. The "capital epiphysis" is "the epiphysis at the head of a long bone." Id. "Osteochondrosis" is "a disease

of the growth or ossification centers in children that begins as degeneration or necrosis and is followed by regeneration

or recalcification." Id. at 1345.

2

This case was before the Court previously but was dismissed pursuant to a joint motion for

remand (JMR). In the JMR, the parties agreed that remand was in order so that the Board could

properly analyze the case under the presumption of soundness.

II. CONTROLLING LAW

A. The Presumption of Soundness

"[E]very 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 . . . ."3 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b)

(2011) (implementing regulation for section 1111). Therefore, when no preexisting medical

condition is noted upon entry into service, a veteran is presumed to have been sound in every respect.

See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225,

227 (1991).

The burden then falls on VA to rebut the presumption of soundness by clear and

unmistakable evidence that an injury or disease manifested in service was both preexisting and not

aggravated by service. See 38 U.S.C. § 1111 ("or where clear and unmistakable evidence

demonstrates that the injury or disease existed before acceptance and enrollment and was not

aggravated by service"); Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. This statutory

provision is referred to as the "presumption of soundness," the rebuttal of which requires proof both

as to preexistence (the preexistence prong) and lack of aggravation (the aggravation prong).

There is a related but distinctly different statutory provision that pertains to cases in which

a preexisting condition is noted on an entrance examination and the claimant contends that this

condition was aggravated in service.4 This provision is known as the "presumption of aggravation."

3

"History of preservice existence of conditions recorded at the time of [entrance] examination does not constitute

a notation of such conditions but will be considered together with all other material evidence in determinations as to

inception." 38 C.F.R. § 3.304(b)(1) (2011).

4

"A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air

service, where there is an increase in disability during service, unless there is a specific finding that the increase in

disability is due to the natural progress of the disease." 38 U.S.C. § 1153.

3

Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and

misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (citing

Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)).5 The clear-and-unmistakable-evidence standard

is an "onerous" one. Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski,

1 Vet.App. 228, 232 (1991)); see also Vanerson, 12 Vet.App. at 263 (Nebeker, C.J., concurring in

part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be

'unmistakable.'"). If there is clear and unmistakable evidence to show that the veteran's disability

was both preexisting and not aggravated by service, then the veteran is not entitled to service-

connected benefits for the preexisting condition. Wagner, 370 F.3d at 1096.

Once the presumption of soundness applies, the burden of proof remains with the Secretary

on both the preexistence and the aggravation prong; it never shifts back to the claimant. In

particular, even when there is clear and unmistakable evidence of preexistence, the claimant need

not produce any evidence of aggravation in order to prevail under the aggravation prong of the

presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) ("When the

predicate evidence is established that triggers the presumption, the further evidentiary gap is filled

by the presumption.").

In presumption of soundness cases, the Secretary may show a lack of aggravation by

establishing, with clear and unmistakable evidence, that there was no increase in disability during

service or that any "increase in disability [was] due to the natural progress" of the preexisting

condition. See Wagner, 370 F.3d at 1096. In Wagner, the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit) concluded that the term "aggravation" has the same meaning in sections

1111 (presumption of soundness) and 1153 (presumption of aggravation). Id. Although the same

word "aggravation" has a common meaning in both instances, this linguistic overlap does not signal

that the presumption of aggravation in Section 1153, with its attendant burden of proof rules, is

5

The Court notes that the Secretary's regulation employs the phrase "obvious or manifest" to describe his

interpretation of clear and unmistakable evidence. See 38 C.F.R. § 3.304(a). The Secretary does not argue that this

standard differs from the characterization of "undebatable" that the Court has advanced and confirmed in its precedents.

In fact, he concedes that the evidence underlying a determination as to preexistence and lack of aggravation must be

undebatable. See Secretary's Brief at 3. The Court perceives no divergence in the standards.

4

triggered in presumption of soundness cases once preexistence of the injury or disease has been

established.6

Rather, the aggravation analysis proceeds under the aggravation prong of the presumption

of soundness. As such, the burden is not on the claimant to show that his disability increased in

severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any

increase was due to the natural progress of the disease. Therefore, VA may not rest on the notion

that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative

evidence to prove that there was no aggravation. If the Secretary fails to produce clear and

unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service

aggravation of the preexisting condition.

B. Standard and Scope of Review

The Court reviews de novo a Board decision concerning 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. Miller v. West, 11 Vet.App. 345, 347 (1998); see

also Quirin, 22 Vet.App. at 396. One example of a factual determination the Board might make is

whether the condition in question was noted on the entrance examination report.

The scope of the Court's de novo review whether the presumption has been rebutted extends

beyond the findings of the Board to all the evidence of record. See Vanerson, 12 Vet.App. at 261

(pre-Wagner case) ("[T]he question is . . . whether the evidence as a whole, clearly and unmistakably

demonstrates that the injury or disease existed prior to service."); see also Kinnaman v. Principi, 4

Vet.App. 20, 27 (1993) (Court reviewed evidence that the Board did not discuss in concluding that

the presumption had not been rebutted); but see Crowe v. Brown, 7 Vet.App. 238, 246 (1995)

(indicating that the Court undertakes "an independent examination of whether the facts found by the

[Board] satisfactorily rebut the presumption of sound condition"); Junstrom v. Brown, 6 Vet.App.

6

An important distinction between section 1111's aggravation prong of the presumption of soundness and

section 1153's presumption of aggravation is the burden of proof. 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. Under section 1153, however, the appellant bears

the burden of showing that his preexisting condition worsened in service. Id. Once the veteran establishes worsening,

the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was

due to the natural progress of the disease. Id.

5

264, 266 (1994) ("[T]his Court is required to make an independent determination of whether the

facts found by the [Board] satisfactorily rebut the presumption of soundness.").

C. The Role of the Presumption of Soundness in Determining Service Connection

Generally, in order to establish service connection for a present disability, "the veteran must

show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease

or injury; and (3) a causal relationship between the present disability and the disease or injury

incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir.

2004). The presumption of soundness relates to the second requirement–the showing of in-service

incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed.

Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (application of presumption of

aggravation satisfies incurrence or aggravation element). In order to invoke the presumption of

soundness, a claimant must show that he or she suffered from a disease or injury while in service.

Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of

soundness ordinarily operates to satisfy the second Shedden requirement without further proof. The

presumption may be rebutted, however, as described above.

The presumption of soundness strongly favors the conclusion that any occurrence of injury

or disease during service establishes that the in-service medical problems were incurred in the line

of duty, that is, during active service and not as a result of the service member's own misconduct.

See id. at 1367. When VA fails to carry its burden as to either preexistence or lack of aggravation,

"whether and to what extent the veteran [is] entitled to compensation for the injury would be

determined upon the assumption that the injury was incurred during service." Wagner, 370 F.3d at

1094.

It does not necessarily follow, however, that an unrebutted presumption of soundness will

lead to service connection for the disease or injury. The appellant must still demonstrate a current

disability and a nexus between his current disability and the injury or disease in service. See Holton,

557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007) (affirming this Court's

finding that the presumption of soundness does not eliminate the need to demonstrate a causal

connection between a veteran's current condition and his in-service injury).

6

III. ANALYSIS

A. The Preexistence Prong of the Presumption of Soundness

The record is replete with medical records indicating that the appellant's Legg-Perthes disease

was a condition diagnosed during his childhood, when he was approximately age six. A service

medical record (SMR) dated October 23, 1970, noted that the appellant had been complaining of left

thigh pain for at least two weeks and had "Hx [history] of Perthes Dz [disease]." R. at 261. This

SMR further noted that he was x-rayed and another document of the same date, which may be the

request for x-ray, notes "Hx [history of Leg[g] Perthes disease since he was [six] years old." R. at

256. The medical report recommending an MEB evaluation states: "Patient gives a Hx [history] of

Legg Perthes disease since he was [six years] old." R. at 234. Finally, a report dated August 16,

2006, from a Dr. Potter of the Texas Department of Criminal Justice noted that the appellant had

been incarcerated since 1985 and noted various complaints of pain associated with Legg-Perthes

disease. Among its other notations, the report states that in April 1991 the appellant "claimed a life

long deformity of the left femoral head and requested pain control." R. at 170.

The record also contains some clinical evidence that tends to support a finding that the

condition preexisted service. An x-ray report, furnished in response to an October 29, 1970, request

states: "Severe deformity of left [illegible] and femoral head consistent with old Legg[-]Perthes

disease." R. at 232. An x-ray report dated February 8, 1985, notes "an old deformity of the femoral

head and neck compatible with an old Legg-Perthes disease." R. at 153. Another x-ray report, for

x-rays taken on or about January 27, 1989, notes "flattening of the left femoral head and shortening

of the left femoral neck . . . probably secondary to Legg-Perthes [d]isease as a child." R. at 157.

Another x-ray report generated in November 1989, by the same medical facility, reports essentially

the same evaluation. See R. at 159.

After reiterating this evidence, the Board found that there was clear and unmistakable

evidence that the appellant's Legg-Perthes disease preexisted service. The Board cited

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), for the proposition that a lay statement is

competent evidence to report a contemporaneous diagnosis. See R. at 11.

The appellant argues that the evidence of record does not rise to the level of clear and

unmistakable evidence. He asserts that the only clinical evidence is an x-ray report stating that the

7

hip condition was "consistent with" old Legg-Perthes disease, which is inferential evidence at best.

He further argues that none of the in-service medical reports fulfill the requirements of 38 C.F.R.

§ 3.304(b) for detailed medical analysis relating all medical and other known facts to accepted

medical principles, including those regarding the character and course of the disease.

This Court has previously concluded, however, that, "as a matter of law, . . . the presumption

of soundness [could be] . . . rebutted by clear and unmistakable evidence consisting of [the]

appellant's own admissions . . . of a preservice [disability]." Doran v. Brown, 6 Vet.App. 283, 286

(1994). The Federal Circuit favorably cited Doran, and stated that a later medical opinion based on

statements made by the veteran about the preservice history of his condition may be sufficient to

rebut the preexistence prong of the presumption of soundness, notwithstanding the lack of

contemporaneous clinical evidence or recorded history. See Harris v. West, 203 F.3d 1347, 1349

(Fed. Cir. 2000). Thus, in the absence of any contention that the appellant never made the statements

attributed to him, those statements alone may rebut the preexistence prong of the presumption of

soundness.

The other evidence of record only reinforces the appellant's statements as to the onset of the

disease. The in-service medical records indicate that the condition of the appellant's hip was

consistent with an old, rather than a recently developed, Legg-Perthe's disease. Additionally, during

his incarceration the appellant referred to a lifelong difficulty with a hip deformity. See R. at 96,

1558. Thus, the Court agrees with the Board that the evidence of record constitutes clear and

unmistakable evidence that the appellant's Legg-Perthes disease preexisted service. That conclusion,

however, does not end the analysis.

B. The Aggravation Prong of the Presumption of Soundness

The Board began its discussion of the law of aggravation with an excursion into the

provisions concerning the presumption of aggravation.

A preexisting injury or disease will be considered to have been aggravated by active

service where there is an increase in disability during such service, unless there is a

specific finding that the increase in disability is due to the natural progress of the

disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable (obvious

or manifest) evidence is required to rebut the presumption of aggravation where the

pre-service disability underwent an increase in severity during service on the basis

of all the evidence of record pertaining to the manifestations of the disability prior

to, during, and subsequent to service. 38 C.F.R. § 3.306(b).

8

R. at 7-8. As noted previously, however, neither the presumption of aggravation of section 1153 nor

the regulation implementing that statutory provision, § 3.306, has any application to an analysis

under the aggravation prong of the presumption of soundness in section 1111. These provisions

apply to only one situation: where the induction examination notes a preexisting condition that is

alleged to have been aggravated. See Wagner, 370 F.3d at 1096 ("[I]f a preexisting disorder is noted

upon entry into service . . . the veteran may bring a claim for service-connected aggravation of that

disorder. In that case section 1153 applies and the burden falls on the veteran to establish

aggravation." (emphasis added)). When the presumption of soundness applies, however, the burden

remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce

evidence of aggravation.

In conflating these two provisions, the Board failed to recognize the Secretary's burden to

prove lack of aggravation. The Board began its analysis by noting "that there is no competent

evidence of worsening of the Veteran's preexisting hip disorder during his very brief period of active

service from October 1, 1970, to November 24, 1970." R. at 11. The Board further noted that

"[s]ervice treatment records are entirely negative for findings or reports of left hip injury during

service." Id. Additionally, the Board found it significant that "the report of Medical Board

proceedings includes contemporaneous in-service medical opinion evidence by a physician that the

Veteran's Legg-Perthes disease was not aggravated during service." Id.

Preliminarily, the Court notes that there is no requirement of a specific injury or trauma in

order for the preexisting condition to have been aggravated. Rather, service connection may be

awarded for any aggravation of a preexisting disease or injury during service. See 38 C.F.R.

§ 3.303(a) (2011). It is lack of aggravation that the Secretary must prove, not lack of an injury.

Our dissenting colleague encroaches on the role of a physician when he suggests that "the

absence of an in-service injury tends to make it less likely that [the appellant's] condition was

aggravated than if he had injured his left hip in service." Dissent at 2. There is no medical evidence

in the record that addresses the effect of an injury on Legg-Perthes disease. For instance, if the

appellant had fallen and bruised the hip, it is not clear that this occurrence would have increased the

likelihood of aggravation of Legg-Perthes disease, which has to do with deterioration of the top of

the femur. Similarly, there is no medical evidence of record that discusses the basic characteristics

9

of the disease or how it may be have been aggravated by the rigors of basic training. It is not the role

of the Court or the Board to speculate either that an injury would have aggravated the disease, or that

the rigors of basic training would not have aggravated the underlying disease.

The Board's reliance on the absence of record evidence of worsening is flawed for at least

three reasons. First, as a general matter "[w]hen assessing a claim, the Board may not consider the

absence of evidence as substantive negative evidence." Buczynski v. Shinseki, 24 Vet.App. 221, 224

(2011).7 Second, and more fundamentally, in the presumption of soundness context, such reliance

effects an impermissible burden shift. If the presumption of soundness applies, and the SMRs do

not reflect the fact of aggravation of a preexisting condition, reliance on this absence of evidence

requires the appellant to generate postservice medical evidence to prove the aggravation that is to

be presumed under section 1111. As noted above, however, the claimant has a burden to prove an

increase in severity only in presumption of aggravation cases. 38 U.S.C. § 1153; Wagner, 370 F.3d

at 1096. In presumption of soundness cases, the burden is on the Secretary to prove lack of

aggravation by clear and unmistakable evidence.8 Id. Finally, the appellant correctly noted at oral

7

The majority believes that its analysis here is entirely consistent with the framework that our dissenting

colleague has so elegantly set forth in Buczynski and in Kahana v. Shinseki, 24 Vet.App. 428 (2011). In both cases, it

is clear that, as a general matter, the absence of evidence is not substantive negative evidence. While the majority agrees

that this is not an absolute rule, there must be "a proper foundation . . . to demonstrate that such silence has a tendency

to prove or disprove a relevant fact." Post at 3. Both cases reference Federal Rule of Evidence 803(7), to the effect that

"the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be

recorded." Buczynski, 24 Vet.App. at 224; Kahana, 24 Vet.App. at 440 (Lance, J., concurring). Here there is no

evidentiary foundation, or even a logical reason to suppose, that in the context of treatment by a corpsman or other

service medical personnel, aggravation of a preexisting condition would ordinarily be considered, much less recorded.

The dissent also relies on Maxson, supra, to argue that the lack of postservice treatment records can be

considered when determining whether a preexisting condition was aggravated during service. Maxson does state that

the lack of treatment records can be considered along with other relevant factors, including the "nature and course of the

disease or disability, the amount of time that elapsed since military service, and any other relevant facts." Id. at 1333.

Here, the problem is that the record is bereft of any evidence concerning the nature and course of Legg-Perthes disease.

Without independent medical evidence regarding the nature and course of the appellant's condition, the Court is left to

speculate as to the significance of the lack of postservice treatment for the condition.

8

The appellant further argues that the fact he was discharged from service after a clean entrance examination

constitutes prima facie evidence of an increase in disability. He reasons that because there is no evidence of the natural

progression of the disease, he is entitled to a finding of aggravation. Because the MEB report found him medically fit

for retention, however, the mere fact of discharge does not necessarily constitute evidence of worsening. Neither does

this finding constitute evidence against aggravation, however, as the dissent suggests. Post at 1-2. The record indicates

that the appellant no longer met the procurement standards for induction into the armed services (R. at 234). If anything,

the change in the PULHES rating from "1" at enlistment to "P3" at separation (R. at 221) would tend to indicate a

worsening of the hip condition. The PULHES system teaches that a soldier may continue in military service under a

10

argument that there was no evidence of the degree of severity of his Legg-Perthes condition between

its first diagnosis when he was age six and the development of pain when he was in basic training.

The Board therefore had no basis for assuming that the notations of hip pain in the SMRs did not

signal worsening or increase in severity.

In this case, the only affirmative evidence pertaining to the issue of aggravation was a box

on the MEB form, which contained an "X" indicating that the condition had not been aggravated by

active duty. There was no analysis or medical explanation accompanying this conclusion. The

report provides no means of determining whether the MEB found that there was no increase in

disability or found that any increase was due to the natural progress of the disease. See Wagner, 370

F.3d at 1096. As to the latter possibility, the MEB report contains neither a finding that any increase

in severity was due to the natural progress of the disease, nor any analysis of medical evidence to

support such a finding. The Court agrees with the dissent that an MEB report "that does not contain

a narrative explaining why the doctors on the panel reached the conclusion that a condition

preexisted service and was not aggravated by it will never contain the detail necessary to deny a

claim." Post at 4. In short, such evidence falls woefully short of clear and unmistakable evidence.

In his supplemental briefing the Secretary further conceded that there are no special indices

of reliability arising from the manner in which an MEB report is prepared. There is therefore no

reason that the Court should not follow its caselaw that such an unexplained conclusory opinion is

entitled to no weight in a service-connection context. See Nieves-Rodriguez v. Peake, 22 Vet.App.

295, 304 (2008).9 In Nieves-Rodriguez, the Court observed that "[i]t is the fully articulated, sound

reasoning for the conclusion . . . that contributes probative value to a medical opinion." Id.

The dissent suggests, without citation, that the endorsement of the unexplained and

unsupported conclusion by three service physicians "makes it more probable that the conclusion is

true than if only a single doctor were involved or if a panel were divided." Post at 1. As a matter

limited duty profile. Thus, the fact that the appellant was fit for retention–in the unexplained judgment of the signatories

to the MEB report–is no evidence as to the existence of aggravation or the lack thereof.

9

The Secretary cites Stover v. Mansfield, 21 Vet.App. 485, 492 (2007) for the proposition that the finding of

a U.S. Navy Physical Examnation Board (PEB) that a disability was not aggravated by service is evidence to be weighed

by the Board. However, there is no record of a PEB report or proceeding in this case. Assuming that the MEB evidence

of lack of aggravation is to be analogously weighed, however, on these facts the MEB report is not entitled to any

probative weight. Nieves-Rodriguez, 22 Vet.App. at 304.

11

of mathematics, however, any multiple of nothing is still nothing. Thus, an accretion of medical

opinions, each of which is entitled to no weight in its own right, cannot add probative value to the

ultimate medical conclusion.

In the Court's view, the concerns for articulated, sound reasoning underlying Nieves-

Rodriguez 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. The level of reasoning and analysis

that is appropriate to that task is amply illustrated in the Secretary's own regulation:

(b) Presumption of Soundness. The veteran will be considered to have been in

sound condition when examined accepted and enrolled for service, except as to

defects, infirmities, or disorders noted at entrance into service, or where clear and

unmistakable (obvious or manifest) evidence demonstrates that an inquiry or disease

existed prior thereto and was not aggravated by such service. Only such conditions

as are recorded in examination reports are to be considered as noted.

(1) History of preservice existence of conditions recorded at the time of

examination does not constitute a notation of such conditions but will be considered

together with all other material evidence in determinations as to inception.

Determinations should not be based on medical judgment alone as distinguished

from accepted medical principles or on history alone without regard to clinical

factors pertinent to the basic character, origin, and development of such injury or

disease. They should be based on 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.

(2) History conforming to accepted medical principles should be given due

consideration, in conjunction with basic clinical data, and be accorded probative

value consistent with accepted medical and evidentiary principles in relation to value

consistent with accepted medical evidence relating to incurrence, symptoms, and

course of the injury and disease, including official and other records made prior to,

during or subsequent to service, together with all other lay and medical evidence

concerning the inception, development and manifestations of the particular condition

will be taken into full account.

38 C.F.R. § 3.304 (emphasis added). Contrary to this regulatory provision, there is not a single

statement of accepted medical principles, much less an analysis of the clinical factors and other

evidence in light of those principles, in the MEB report or anywhere else in the record.

12

The dissent offers the proposition that "if the opinion is lacking in detail, then it may be given

some weight based upon the amount of information and analysis it contains." Post at 2. The

problem here, however, is that the MEB report is bereft of any information and analysis useful to the

Court's review of its conclusion. Thus, by the dissent's own reasoning, the report has no probative

value.

Furthermore, the lack of discussion as to how the conclusions on the MEB report were

arrived at prevents the Board and the Court from properly assessing whether those conclusions were

based on a sufficient evidentiary basis. See Nieves-Rodriguez, 22 Vet.App. at 302 (requiring the

Board and the Court to ensure that medical opinions are made on the basis of sufficient facts or data

and the application of reliable medical principles). The Secretary, however, argues that "the

judgment of the medical professionals who comprise the MEB that an opinion can be rendered on

any one or more medical issues based upon the extant evidence is a medical conclusion which cannot

be independently second guessed by either the Board or this Court." Secretary's Supplemental Brief

at 16. In fact, citing Cox v. Nicholson, 20 Vet.App. 563, 569 (2007), the Secretary further offers the

suggestion that "it should be presumed that the MEB found that it had sufficient evidence on which

to base [its] conclusions." Id. at 17.

The assessment whether the physician's report is supported by medical evidence that pertains

to the conclusion reached, however, is a significant part of what the Court does on de novo review.

Without such review, the Court would be in the position of rubber stamping what may be nothing

more than a bare, ad hoc assertion. The Secretary attempts to extend Cox to cover matters to which

that opinion was never directed. The presumed competence of medical personnel to render an

opinion does not create any presumption that the medical analysis underlying an opinion in a

particular case is correct.

The Secretary argues that the factors listed in the regulation e.g., clinical factors, medical

principles, thorough analysis, need not appear in the MEB report, but rather pertain to the

determinations to be made by the Board. This argument rings hollow, however, in view of the fact

that the Board may rely only on independent medical evidence to make its determinations. See

Colvin v. Derwinski, 1 Vet.App. 171 (1991). If the MEB report does not contain sufficient

discussion, the Board must obtain further medical evidence to support the required regulatory

analysis, which it expressly declined to do in this instance.

13

It will also not do to argue that the MEB report becomes clear and unmistakable evidence

by virtue of the fact that it is the only contemporaneous evidence pertaining to aggravation. By now

it should be clear that the veteran has no burden to produce evidence of aggravation, although the

veteran may choose to do so. Instead, the evidence of lack of aggravation produced by the Secretary

must rise to the level of clear and unmistakable evidence on its own merit, without reference to any

countervailing evidence.

It is therefore untenable for the Secretary to advocate affirmance of the Board's decision when

the only affirmative evidence in support is an unexplained "X" on a form. Affirmance on such a

basis would require the Board and the Court to accept a bare conclusion, or medical judgment,

contrary to established caselaw and the Secretary's own regulation.

C. The Development of Clear and Unmistakable Evidence

If there is any lingering doubt, let it be clear that adjudicators may not deny claims involving

the presumption of soundness based upon MEB reports containing no supporting analysis. Rather,

VA and the Board must seek other evidence commensurate with the appropriate evidentiary standard

of clear and unmistakable evidence.

If the SMRs and discharge reports lack sufficient content to rebut the aggravation prong of

the presumption of soundness, that is, to prove lack of aggravation, the Secretary and the Board have

several options. At oral argument, the Secretary conceded that he would have the authority to obtain

an opinion from a VA physician when a veteran is discharged from service for medical reasons.

Alternatively, VA may subpoena preservice medical records and interview people who were familiar

with the claimant's physical condition prior to service. See 38 U.S.C. § 5711; 38 C.F.R. § 2.2

(2011). Such evidence, when evaluated by a competent physician, may enable the establishment of

a preservice medical baseline for the condition for which service connection is sought. Cf. 38 C.F.R.

§ 3.310 (2011). The comparison of the preservice baseline with the condition soon after service

could be a reliable and straightforward method of proving lack of aggravation.

Lacking the evidence to establish such a baseline, the Secretary may attempt to carry his

evidentiary burden with a postservice medical opinion that discusses "the character of the particular

injury or disease," 38 C.F.R. § 3.304(b)(1), in relation to the available evidence. In certain cases,

the nature of a preexisting disease or injury may imply an extremely low likelihood of aggravation

by a limited period of even intense physical training. See 38 C.F.R. § 3.303(c). If a physician is able

14

to support such a conclusion with a suitable medical explanation, supported by extant medical

knowledge and the facts of record, such an opinion might constitute or contribute to clear and

unmistakable evidence of lack of aggravation.

The Board and the Secretary are free to pursue any such evidence during the development

and administrative appeal of the claim. This Court has given VA wide latitude in developing

evidence to rebut presumptions. See Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) ("[T]he

Secretary's authority to develop a claim necessarily includes the authority to collect and develop

evidence that might rebut the presumption of service connection."); Shoffner v. Principi,

16 Vet.App. 208, 213 (2002) (Board has discretion below as to how much development is required).

D. Remedy

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. In this

instance, the Court holds that the Secretary failed to carry his burden of proving lack of aggravation

by clear and unmistakable evidence. Reversal, not remand, is therefore the appropriate remedy.

In Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), the Federal Circuit affirmed this

Court's remand of a presumption of soundness case for clarification of certain medical evidence of

record. The dissent glosses over the Federal Circuit's statement in Adams that it was because of the

lack of clarity in the medical evidence that a remand was the appropriate remedy. The Federal

Circuit focused on ambiguity in the VA examiner's report, concluding that the report could be

interpreted in two ways, one way that would be sufficient or another insufficient to rebut the

presumption of soundness. It was because of this lack of clarity in the evidence that the Federal

Circuit affirmed this Court's conclusion that further factual inquiry was needed to resolve the VA

examiner's intent. However, the Federal Circuit distinguished between clarification of the medical

evidence and obvious insufficiency of that evidence.

This is not a case in which the court was faced with evidence that was clearly

insufficient to overcome the presumption of sound condition and in which the court

remanded the matter to the Board in order to allow [VA] to attempt to introduce new

evidence sufficient to make up the shortfall.

15

Id. at 1321-22. The clear import of this language is that it would be improper to remand the case in

the face of medical evidence that is plainly insufficient to rebut the presumption of soundness. See

also Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002) (reiterating distinction).

In this case, the "X" in the "no" column of the MEB report for "aggravated by active duty"

is in no way unclear, or as the dissent seems to suggest, ambiguous. See Post at 5. Rather, it is

simply unsupported, unexplained, and arrived at employing an insufficient standard of proof.

Because it is the only affirmative evidence of lack of aggravation, there is clearly insufficient

evidence to rebut the aggravation prong of the presumption of soundness, making remand improper.

Moreover, it is unclear how a remand would be anything other than yet another opportunity

to generate more evidence to make up the shortfall on the aggravation issue. The Secretary did not

avail himself of the opportunity, which he concedes was available, to develop evidence on the

aggravation issue in 1970. In the course of this claim, the Board twice elected not to seek further

medical evidence on the aggravation prong when the case was before it on administrative review.

In the decision here on appeal, the Board expressly declined to seek any further medical evidence

after the case had been remanded for a more complete consideration of the presumption of

soundness. The Board's reasoning was as follows:

[T]here is no reasonable possibility that any current VA examination or opinion

would result in findings that would provide a reasonable possibility of substantiating

the claim. Accordingly, the Board finds that an etiology opinion is not "necessary"

to decide this claim for service connection. See generally Wells v. Principi, 326 F.3d

1381 (Fed. Cir. 2003).

R. at 7. Clearly, the Board misperceived the evidentiary posture of the case and abdicated its

opportunity to develop suitable evidence of lack of aggravation.

There has been no lack of clarity in the law pertaining to the presumption of soundness. The

problem has been that VA has yet to step up to its responsibility under that law and its own

regulation. Further, there is no immediate cost to the taxpayers in this particular reversal, because

the veteran has only received the benefit of the presumption soundness. To obtain service

connection, he still would need to establish that he has a current disability and a nexus to the in-

service aggravation. See Shedden, supra. Nonetheless, any cost to taxpayers is dwarfed by the

prospect of future cases generated by the misperception that the Court will tolerate the continuance

of defective evidentiary development in presumption of soundness cases.

16

Moreover, there is a certain uniformity of treatment of similarly situated parties before the

Court that is necessary to the appearance of fairness. See Hodge v. West, 155 F.3d 1356, 1363 (Fed.

Cir. 1998) ("In the context of veterans' benefits . . . the importance of systemic fairness and the

appearance of fairness carries great weight."). The Court would not remand a case when a veteran

fails to carry a point on which he or she has the burden of proof. It would be unseemly to so

accommodate VA and the Board as to matters on which the Government has the burden of proof.

Therefore, the Court will reverse the Board's finding that the aggravation prong of the

presumption of soundness was rebutted, that is, that service did not aggravate the appellant's Legg-

Perthes disease. The Board is directed to enter a finding that the appellant's preexisting Legg-Perthes

disease was aggravated in service. The Court will remand the case for development on the other

service-connection issues. On remand, the Board and any VA medical examiner(s) must assume that

the appellant aggravated his Legg-Perthe's disease during service.

In pursuing his case on remand, the appellant will be free to submit additional evidence and

argument in support of his service connection claim for his hip condition, and the Board is required

to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

IV. CONCLUSION

Based on the foregoing reasoning, the Court REVERSES the Board's November 18, 2009,

determination that the presumption of soundness had been rebutted, directs that a finding of in-

service aggravation of the hip condition be entered, and REMANDS the case for further

development consistent with this decision.

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LANCE, Judge, dissenting: I believe the proper disposition of this case is for the Court to remand

the matter to the Board for an adequate medical examination based on "accepted medical principles,"

in accord with 38 C.F.R. § 3.304(a)(1). Although I believe the majority's analysis proceeds in the

correct general direction, there are three aspects of the opinion that concern me. First, I do not

believe the opinion fully and accurately evaluates the evidence. Second, I believe the opinion misses

an opportunity to provide clear guidance to adjudicators below. Finally, I do not believe that the

remedy chosen is either required or appropriate. Therefore, I must dissent.

I. ANALYSIS OF THE EVIDENCE

My first concern is that the majority understates the current evidence that suggests that the

appellant's condition was not aggravated by service. The majority frames the issue as "whether a

medical examination board (MEB) report containing only an unexplained 'X' in a box on a form can

constitute clear and unmistakable evidence of lack of aggravation." Ante at 1. However, the mark

on the MEB report is far from the only evidence against this claim. Relevant evidence is anything

that "has any tendency to make a fact more or less probable than it would be without the evidence."

FED. R. EVID. 401(a). A piece of evidence need not be conclusive to be relevant and the ultimate

question presented is whether the totality of the evidence rose to the necessary level to deny the

claim, not whether one particular piece of evidence was sufficient.

In this case, there are numerous pieces of evidence against the appellant's claim. As to the

MEB report itself, the mark indicating that his condition existed prior to service and was not

aggravated by it is not the only relevant portion. The report also indicates that three doctors were

unanimous in reaching that conclusion. R. at 231. Although a claim cannot be decided merely by

counting the number of doctors in support of or against it, the fact that additional doctors reached

the same conclusion and that the doctors were unanimous makes it more probable that the conclusion

is true than if only a single doctor were involved or if a panel were divided. See Kahana v. Shinseki,

24 Vet.App. 428, 438 n.8 (2011) (Lance, J., concurring) (noting that an opinion that lacks detail may

still lend some support to other opinions that reach the same conclusion). The report also indicated

that the appellant was "medically fit" "for further military service." R. at. 230. This finding in the

report also tends to show that his condition was not permanently aggravated by service.

18

Aside from the MEB report, there is other evidence in the record against the claim that the

majority fails to acknowledge. First, the appellant's SMRs do not indicate that he suffered a leg

injury in service. Even though there is presumption of aggravation, the absence of an in-service

injury tends to make it less likely that his condition was aggravated by service than if he had injured

his left hip in service. Second, the appellant had only seven-and-a-half weeks of service and his

condition was observed during his first few weeks of service. Just as a long career in service would

make it more likely that a condition was aggravated by service, very brief service tends to make it

less likely that a condition was aggravated by service. As the Federal Circuit recognized in Maxson

v. Gober, basic facts about the periods involved in a claim are relevant evidence on medical

causation issues that are within the common knowledge of a lay adjudicator. 230 F.3d 1330, 1333

(Fed. Cir. 2000). Finally, the record indicates that the appellant did not seek treatment for his leg

condition until 15 years after service and, even afterward, had extended periods where he did not

complain of a disability caused by his condition. R. at 141. This is exactly the type of "evidence of

a prolonged period without medical complaint" that the Federal Circuit in Maxson concluded was

relevant to the Board's determination that a condition was not aggravated by service. Id. Thus, here

the majority is inaccurate in stating that the only evidence against this claim is one mark on a 40-

year-old form.

I believe the majority's error in this regard stems from two persistent problems in analyzing

evidence in veterans claims. The first is a tendency to conflate the adequacy of a medical opinion

with its probative value. The fact that a medical opinion is inadequate to decide a claim does not

necessarily mean that the opinion is entitled to no probative weight. If the opinion is based on an

inaccurate factual premise, then it is correct to discount it entirely. See Reonal v. Brown, 5 Vet.App.

458, 461 (1993). However, if the opinion is merely lacking in detail, then it may be given some

weight based upon the amount of information and analysis it contains. See Nieves-Rodriguez v.

Peake, 22 Vet.App. 295, 302 (2008).

The majority is simply in error when it states that a conclusion by a physician is entitled to

zero probative weight if it is not supported by analysis. If that were true, then a favorable medical

opinion from a veteran's doctor that was unsupported by analysis would not be sufficient to trigger

the Secretary's duty to assist. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) (holding that

38 U.S.C. § 5103A(d)(2) requires that a medical opinion to be provided where the evidence indicates

19

that a claim has merit but is insufficient to grant the claim). Indeed, McLendon explicitly states that

"[t]he types of evidence that 'indicate' that a current disability 'may be associated with military

service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal

or lacking in specificity to support a decision on the merits." Id. (quoting 38 U.S.C. § 5103A(d)(2)).

Thus, VA is not permitted to completely ignore a bald conclusion by a doctor that supports a claim

and the majority is plainly incorrect to reject the conclusion of the three doctors who signed the MEB

report by dismissively stating that three times zero is still zero. Ante at 12.

Put another way, if a tort case were tried before a jury and the plaintiff had three different

doctors testify that they thought there was causation, a jury could rely on their unrebutted expertise

even if they did not explain why they reached the stated conclusion. Indeed, that is precisely the

difference between the jury system and the veterans claims system. It is not enough that the weight

of the evidence is against the claim in our system. Our system is transparent and requires the Board

to explain the why the evidence weighs against the claim. See Allday v. Brown, 7 Vet.App. 517, 527

(1995) (Board's statement of reasons or bases for its decision "must be adequate to enable a claimant

to understand the precise basis for the Board's decision, as well as to facilitate informed review in

this Court"). That is why this Court routinely remands claims to obtain a complete statement of

reasons or bases where other appellate courts review trial determinations to see whether there is any

reasonable view of the evidence that would support the conclusion reached by the factfinder after

"draw[ing] all reasonable inferences in favor of the prevailing party." Akamai Techs., Inc. v. Cable

& Wireless Internet Servs., Inc., 344 F.3d 1186, 1192 (Fed. Cir. 2003).

The majority makes a similar error in stating that I "encroach[] on the role of a physician"

by observing that the absence of an in-service injury tends to make it less likely that the appellant's

condition was aggravated by service. Although the majority cites no support for their criticism of

my observation, it is clearly referring to Colvin v. Derwinski, in which this Court reprimanded the

Board for relying on "its own unsubstantiated medical conclusions." 1 Vet.App. 171, 175 (1991).

However, the Federal Circuit has repeatedly reminded us that Colvin should not be cited as an

absolute rule and that the Court must acknowledge that there are some basic principles of medicine

that are within the common knowledge of a lay person, which includes both claimants and

adjudicators. See Kahana, 24 Vet.App. at 435 (noting that "there is no categorical requirement of

'"competent medical evidence . . . [when] the determinative issue involves either medical etiology

20

or a medical diagnosis'"" (quoting Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)

(quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)))).

Despite the clarity of instruction from the Federal Circuit, this Court is overdue in providing

guidance as to what principles of medicine are within the common knowledge of laypersons.

Unfortunately, the majority opinion misses a useful opportunity to do so. As discussed above, the

Federal Circuit provided some direction in Maxson. The essential lesson of Maxson is that lay

persons can recognize the basic connection between an in-service injury or disease, the passage of

time, and the development of a disability. When a disability develops shortly after an in-service

disease or injury affecting the same diseased or injured body part or system, it is simply common

sense to infer that there is a connection. This inference will not always be correct, but the inference

is accurate enough to have some weight and to trigger the duty to assist. Conversely, when a

disability does not develop until long after service, then a connection is unlikely — especially if there

was no injury or disease in service affecting the body part or system at issue.

To be clear, medical common knowledge must be used with caution. When it is favorable,

it is not per se sufficient to grant the claim. When, as here, it is unfavorable, it is not per se sufficient

to deny the claim. Instead, the adjudicator must take care to consider it on a case by case basis.

Moreover, general medical common knowledge may be rebutted with expert medical evidence that

shows that the basic intuition is not accurate for a particular set of facts. Thus, the Board should be

explicit as to how it assigns weight to medical common knowledge in each case.

In this particular case, the majority is correct that there is no evidence as to the nature and

progression of Legg-Perthes disease. However, the majority ignores the fact that lay medical

common knowledge has value precisely when it is unrebutted by expert evidence to the contrary.

Applying the logic of the majority to discount medical common knowledge in the absence of

confirmatory expert evidence effectively reinstates the absolute rule of Colvin that the Federal

Circuit has clearly overruled.

The second problem is the majority's tendency to ignore the evidentiary value of the absence

of evidence. The Federal Circuit has made clear that absence of corroboration is not generally a

basis for discounting lay testimony. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir.

2006). However, as explained in my separate opinion in Kahana, this does not prevent an

adjudicator from considering the probative value of silence in the available evidence if a proper

21

foundation exists to demonstrate that such silence has a tendency to prove or disprove a relevant fact.

24 Vet.App. at 440. In this regard, the majority's reliance on Buczynski v. Shinseki, 24 Vet.App. 221

(2011) is misplaced. Buczynski does not stand for the absolute rule that the absence of evidence can

never be considered, but instead states — as elaborated in Kahana, supra, — that the Board may

consider a lack of notation of medical condition or symptoms as substantive negative evidence where

such notation would normally be expected. 24 Vet.App. at 226-27.

The majority states that there is no logical reason to expect that an injury to the appellant's

leg would have been recorded if one had occurred in service. Ante at 10 n.6. However, there is no

basis for holding, as a matter of law, that it is unreasonable to expect that if the appellant had injured

his leg during his brief service, then that fact would have been documented somewhere in the

investigation as to whether his leg condition was aggravated by service. Of course, the fact that there

was no observable injury to the leg in service is not sufficient to rebut the presumption of

aggravation, but that does not change the fact that the absence of an observed injury makes it less

likely his condition was aggravated by service than if an injury was noted. Thus, it appears that the

majority is forgetting that a presumption exists only to allocate the burden of proof. It cannot rob

evidence of its tendency to make a fact in issue more or less probable than it would be without the

evidence. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) (a "presumption affords a party,

for whose benefit the presumption runs, the luxury of not having to produce specific evidence to

establish the point at issue").

For these reasons, I believe the majority dramatically understates the strength of the evidence

rebutting the presumption of aggravation, which contributes to the incorrect remedy applied in this

case.

II. PROPER EVALUATION OF AN MEB REPORT

My second concern with the majority opinion is that it fails to provide clear guidance to

adjudicators as to how to handle future cases. The majority correctly notes that the Secretary's

regulation has clearly stated what evidence is required to rebut the presumptions of sound condition

and of aggravation. The majority does a commendable job of quoting 38 C.F.R. § 3.304 and

emphasizing the key language. Ante at 10-11. However, in its analysis the opinion moves too

quickly past this regulation.

22

It is § 3.304 that states the Secretary's interpretation of what the evidence must show to reach

the threshold necessary to rebut the presumption. The evidence must show that applying "accepted

medical principles" regarding the nature of the condition to its history in the case at hand, including

the relevant clinical data, would result in fully informed medical professionals agreeing as to whether

the condition preexisted service or was aggravated by it. To the extent that this is usually (if not

universally) an issue requiring medical expertise, see Jandreau, 492 F.3d at 1377 n.4, the Board may

not deny the claim based upon its own medical judgment, but rather must seek a competent medical

opinion on the issue. See Colvin, 1 Vet.App. at 174.

In this regard, an MEB report that does not contain a narrative explaining why the doctors

on the panel reached the conclusion that a condition preexisted service and was not aggravated by

it will never contain the detail necessary to deny a claim. However, such a report will indicate that

the presumption might not be accurate in a particular case and justify the Secretary's decision to seek

a medical opinion that fully addresses the standard and the factors laid out in § 3.304. See Douglas

v. Shinseki, 23 Vet.App. 19, 25-26 (2009) (holding that the Secretary may seek an opinion that can

rebut a favorable presumption if the record contains evidence raising the issue).

Thus, the clear message that this opinion should send to the Secretary is that adjudicators

should not deny claims based upon MEB reports containing no supporting analysis, but instead

should seek medical opinions that address the appropriate standard under the regulation. Such

guidance might be inferred from the majority opinion, but it should be stated unequivocally.

III. APPROPRIATE REMEDY

Finally, I disagree with the majority that reversal is required in this case. Reversal is

appropriate where law is settled and the Board's determination of adequacy is "clearly erroneous."

However, I believe that in an area where the Court is providing new guidance (as it is doing here),

VA should have the opportunity to obtain evidence under that guidance.

As detailed above, there is substantial evidence indicating that this claim does not have merit

even though VA has not obtained a medical opinion that fully analyzes the issue under § 3.304. In

my view, we have not clearly held prior to this case that VA must obtain a proper medical opinion

addressing the regulatory standard if the MEB report does not contain a narrative analysis sufficient

to apply those factors and, the Board decision in this case was not clearly erroneous under

23

established law in denying benefits in this case. Indeed, this case is somewhat similar to Maxson,

where the Federal Circuit affirmed a finding that the presumption had been rebutted based in large

part on the long period without complaint after service. Thus, I cannot agree that the Board

"abdicated its opportunity to develop suitable evidence" in this case. Ante at 14. Although the

majority argues that "[t]here has been no lack of clarity in the law pertaining to the presumption of

soundness," ante at 17, the problem is that there has been a profound lack of clarity in our caselaw

explaining how the Board should weigh evidence. Unfortunately, this opinion adds to the confusion

rather than helping to resolve it.

As I believe that the Board's error here was understandable in light of the gaps in our case

law, I also believe that the majority's reliance on Adams is misplaced. If anything, Adams counsels

for remand in this case instead of reversal. In Adams, this Court remanded a similar claim to the

Board because, even though there was substantial evidence against the claim, the medical opinion

was ambiguous as to whether it had applied the correct standard. 256 F.3d at 1319-20. In appealing

to the Federal Circuit, the appellant argued that reversal was the required remedy because the record

contained "insufficient evidence to rebut the presumption of sound condition." Id. at 1321. The

Federal Circuit rejected this argument and held that it was appropriate for the Court to remand the

case for further development in the form of "an explanation from [the VA physician] of his opinion,

or if necessary supplemental medical evidence that might shed light on the ambiguities in [the VA

physician]'s report." Id. at 1322. In this case, we have a unanimous opinion from three doctors in

the MEB report that the appellant's condition preexisted service and was not aggravated by service.

Although it is not possible to obtain clarification from those doctors, this is certainly a case where

"supplemental medical evidence" under Adams would shed light on the ambiguity created by the lack

of a narrative analysis supporting the conclusion in the report. To the extent that Adams contains

dicta on when reversal would be appropriate based upon different sets of facts, it is simply not

binding in this case. Even to the extent that Adams endorses reversal where the evidence presented

to the Court is "clearly insufficient to overcome the presumption," id. at 1322, I do not believe that

the evidence in this case was clearly insufficient prior to this opinion clarifying the proper

development and analysis required.

Ultimately, I believe that the Court has discretion in choosing the appropriate remedy on a

case-by-case basis. Adams recognized that it is our mandate under 38 U.S.C. § 7252(a) to choose

24

a remedy "as appropriate" to the case before us. Moreover, the U.S. Supreme Court in Shinseki v.

Sanders warned against the creation of "complex, rigid, and mandatory" rules for this Court that

require particular types of relief regardless of whether they are consistent with the facts or logic of

a particular case. 556 U.S. 396, 407 (2009). In this case, the Court's decision to reverse the Board's

finding as to the presumption rather than to allow it to be addressed properly on remand is contrary

to Adams and Sanders. As a result, it is the taxpayer who is punished for VA's error even though

the error is quite understandable based upon the evidence in this case and the confusion in the law

prior to this opinion. Therefore, I must respectfully dissent.

25