Dale S. Horn v. Eric K. Shinseki, Opinion Number 10-853,
decided June 21, 2012 involved a veteran’s claim for a service connection for a
left hip disorder.
It is undisputed the veteran was found fit for induction,
now has a congenital left hip disorder and that he complained during basic
training of left hip pain. His
complaints led to a medical evaluation board which found a congenital hip
disorder which pre-existed the service.
The MEB checked a box indicating the hip disorder was not aggravated by
active duty. The veteran was discharged
as result of the MEB.
The veteran argued the presumption of soundness applies and
can only be defeated with clear and unmistakable evidence that the condition
pre-existed the service was not aggravated by the service. Evidence strongly suggested the hip disorder
pre-existed the service and the Court accepted this determination.
However, the Court also focused on aggravation of the
disorder. It found the burden is on the
VA to prove a lack of aggravation and the veteran has no burden to produce
evidence of aggravation. The court noted
there is no requirement of a specific injury or trauma in order for the
pre-existing to have been aggravated.
The decision makes clear the veteran merely has to prove an
increase in severity of the condition and then the VA has the burden to show a
lack of aggravation by CUE. The Court
considered the “x” on a MEB indicating no aggravation and found that it is not
CUE of a lack of aggravation without some analysis supporting the MEB’s decision. The Court said “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 error.” Id. at *14. The Court gives several options for the VA
which will require the VA to work hard to develop evidence of a lack of
aggravation.
The Court then took the step of not just remanding the
decision but reversing. It also made
clear this decision is not a new statement of law but that “[t]he problem has been
tat VA has yet to step up to its responsibility under that law and its own
regulation.” Id. at *16.
Judge Lance issued a dissenting opinion. He does not disagree with the entire decision
but stressed the evidentiary value of the MEB and recommended remand.
Decided by Judges Davis and Schoelen,with a dissent by J.
Lance.
