Gilbert: Presumption of Soundness

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.

Procopio: Duties of a Hearing Officer

Alfred Procopio Jr. v. Eric K. Shinseki, Opinion Number 11-1253, decided October 16, 2012 examines the duties of a board member during the Board hearing, specifically concerning the duty to explain the chief factual issues and suggest what was needed to substantiate a claim.

The veteran sought benefits for prostate cancer and diabetes mellitus type II secondary to herbicide exposure.  At the video board hearing, the veteran submitted a treatment note from a physician stating linked his medical issues to herbicide exposure.  The board member did not ask any questions or make any statements to the veterans regarding what was needed for his claim.  Specifically, the issue was whether the veteran was exposed to herbicides while aboard the USS Intrepid off the coast of Vietnam.

The Court noted that 38 CFR Section 3.103(c)(2) imposes two duties on a hearing officer: “(1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.”  Id. at *5.

The Court determined the Board member was obligated to explain the lack of competent evidence and suggest the submission of evidence relevant to those issues, and that the Board member simply failed to fulfill his duty.

The VA tried to argue the Board member’s failure was harmless because the veteran had actual knowledge of the evidence necessary to support his claim.  Instead, the Court found the veteran thought the nexus statement from his physician was enough and that he had overlooked the need for evidence of herbicide exposure.  The VA also argued a pre-hearing statement of the case cures a Board member’s failures.  The Court found this argument unavailing.

This case brings a light to an important tool for veterans.  Anytime a veteran is in a hearing, they should ask what specifically is need to substantiate their claim.  Then, when the veteran provides that evidence it will be difficult for the VA to deny and attempt to move the goalpost.  Importantly this duty is owed both by a Board member and by RO hearing officers.

Decided by C.J. Kasold and Judges Hagel and Schoelen.

El-Amin: DIC, Alcoholism, PTSD and an Inadequate Medical Examination

Khadijah El-Amin v. Eric K. Shinseki, Opinion Number 10-3031, decided January 15, 2013 concerns a widow’s entitlement to VA benefits for the cause of her husband’s death.

The veteran served in Vietnam and was service connected for PTSD.  When he died, his death certificate listed his cause of death as hepatic cirrhosis.  His widow sought benefits asserting her husband’s PTSD caused or aggravated his alcoholism, which in turn led to his death.

The RO and Board denied the claim, principally relying on a VA medical opinion which found “there is no confirmatory or supportive evidence that the veteran’s post-traumatic stress disorder caused his alcohol abuse….  Conversely, it is more likely than not that the veteran’s alcohol abuse was related to factors other than the veteran’s post-traumatic stress disorder.”

The Court noted that benefits are appropriate if aggravation by a service connected condition can be shown to have contributed substantially or materially to the production of death, combined to cause death, or aided or lent assistance to the production of death.  The Court noted the Board did not address the question of aggravation.

The Court also noted the VA medical opinion was inadequate as it focused solely on direct causation, concluding PTSD did not cause the alcoholism.  The Court considered the opinion’s conclusion that “it is more likely than not that the veteran’s alcohol abuse was related to factors other than the veteran’s post-traumatic stress disorder,” but stated “it is not clear to the Court that this encompasses a discussion of aggravation (the theory on which Mrs. El-Amin bases her claim) at all, let alone with respect to post-traumatic stress disorder.”

Decided by Chief Judge Kasold and Judges Hagel and Moorman.

Bowers: Active Duty Presumption for ALS

Kay M. Bowers v. Eric K. Shinseki, Opinion Number 10-3399, decided February 19, 2013 concerns the interpretation of a regulation making ALS a presumed service-connected disease.

The veteran’s widow appealed a denial of service connection for her husband’s ALS.   The veteran had served in the Army National Guard from March 1872 until March 1978 with a continuous period of active duty for training for more than 90 days from August 1972 to February 1973.  The veteran was diagnosed with ALS in 2009.

38 CFR 3.318 makes ALS a presumed illness if it manifests after “active military, naval or air service.”  The veteran’s widow argued the plain language of the regulation was clear and her husband should have been granted benefits.  

However, 38 USC Section 101 defines the term “active military, naval or air service” as among other things “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty.”

The Court used the definition of the term “active military, naval or air service” to conclude that “the Secretary has limited that presumption to only those who served 90 consecutive days of ‘active military, naval or air service’”.  Id. at *8.  And explained that “this language implies a requirement that the individual attain veteran status, in that the statutory definition of “active military, naval or air service” excludes those who have served on active duty for training regardless of the length of that service—unless it can be shown that ‘the individual concerned was disabled or died from a disease or injury incurred or aggravated’ during that period of active duty for training.”  Id. at *8.  “Thus, even though Mr. Bowers served on ‘active duty’ for more than 90 consecutive days, he is not entitled to the presumption of service connection for amyotrophic lateral sclerosis because he is not a veteran for VA disability compensation purposes.”  Id. at *8.

Decided by Judge Hagel, Moorman, and Bartley.

Shephard: Incarceration and Overpayment

Catherine A. Shephard v. Eric K. Shinseki, Opinion Number 11-2074, decided February 27, 2013 involves VA overpayments of benefits.

The veteran was incarcerated from November 2002 until November 2008.  The VA discovered the incarceration in September 2003 and proposed to reduce the rating in June 2004 to 10% pursuant to VA regulations concerning compensation to incarcerated veterans.  The VA notified the veteran of an overpayment of $63,000 and when she was released from prison the veteran sought reinstatement of her full compensation and to be paid for the benefits that were reduced.

38 USC Section 5313(a)(1)) states that a veteran “shall not be paid for such compensation … for the period of beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends.”

Veteran argued she should receive the accrued compensation amount after release.  The Court looked at the plain language of the statute and legislative history and found that the purpose was to prevent the incarcerated from drawing benefits.

The Court did remand as to reasons and bases for the whether the $63,000 debt was properly created.

Decided by C.J. Kasold, and Judges Schoelen and Pietsch.