Daniel R. Gilbert v. Eric K. Shinseki, Opinion Number
11-2355, decided October 24, 2012 fleshes out and expounds on the presumption
of soundness.
The veteran sought a presumption of soundness regarding
psychiatric disabilities that were not reported during his induction or for
that matter anytime during service. The Board found the Gilbert was entitled to the presumption
of soundness. The Board said this was
because clear and unmistakable evidence did not show the injury or disease was
not aggravated by the veteran’s service.
The Board based this determination on two medical examines that said the
veteran reported stressful events during the service and that his depression
and anxiety was tightly woven to his service.
While stating a presumption of soundness applied, the Board then
considered the nexus between his current disability and alleged service
event. The C&P examiners found no
relationship between his current psychiatric disabilities and service.
The veteran appealed, saying it was inconsistent to find the
presumption of soundness applies and then deny service connection. The VA argued the presumption did not end the
inquiry and did not obviate the need for a nexus statement, and that the
decision was a result of the difference in evidence necessary. Clear and unmistakable is necessary to rebut
the presumption of soundness whereas a preponderance of the evidence is necessary
for the nexus prong of the analysis.
The Court began by noting the presumption of soundness is a
source of much confusion and litigation, and then gave a primer on how the
presumption should be applied. It then
makes clear that the presumption of soundness “help[s] a veteran combat any contention
that his disease or injury preexisted service, the presumption of soundness
serves as a shield against any assertion by the Secretary that a veteran’s
in-service disability that was not noted upon entry to service preexisted
service.” Id. at *6. However, “before the presumption of soundness
is for application, there must be evidence that a disease or injury that was
not noted upon entry to service manifested or was incurred in service.” Id. at *6.
Once a presumption of soundness is applied and not rebutted, the disease
or injury is deemed incurred in service.
But, the court stated the inquiry does not end there. “Even if any injury or disease is deemed
incurred in service by virtue of the presumption of soundness (or found to be
actually incurred in service), a veteran still must establish that he has a
current disability that is related to the in-service injury or disease.” Id. at *7.
And, that nexus determination is based on a preponderance of the
evidence standard, with the benefit of the doubt given to the veteran.
The Court ultimately held that even if the Board erred by
implicitly recognizing the psychiatric disabilities manifested in service, there
was no prejudice. This is because the
veteran was not credible as to his medical history and there was no nexus
statement between the veteran’s current problems and an injury or disease that
was incurred in or aggravated by service.
This case is on its face not exceptional. It restate that the presumption of soundness
still requires something during service.
What is more troubling is the Court’s willingness to find a lack of
prejudice. This was called to task in
Chief Judge Kasold’s decision. There, he
dissented from the portion finding a lack of prejudice and finds contradictory the
Board’s determination the veteran’s depression was incurred in service and was
not related to (incurred or aggravated in) service.
Decided by Chief Judge Kasold and Judges Lance and Davis.
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