Wednesday, September 3, 2014

Gilbert v. Shinseki

Gilbert v. Shinseki, 749 F.3d 1370 (Apr. 24, 2014)
The presumption of soundness does not relieve the claimant of the burden of establishing all three elements of service connection (current condition, in-service injury, nexus between the two).

The veteran was denied service connection for a psychiatric condition. The record contained evidence that he had experienced depression and substance abuse prior to service and that he continued to abuse alcohol while in the Navy. To rebut the presumption of soundness, the government must show with “clear and unmistakable evidence” that the condition both pre-existed service and was not aggravated by service. The Board determined that the government proved that the veteran’s psychiatric condition pre-existed service, but did not show that the condition was not aggravated by service. Nevertheless, the Board affirmed the denial because the veteran failed to prove that his post-service psychiatric condition was related to his military service. The CAVC affirmed.

On appeal to the Federal Circuit, the veteran argued that the CAVC misinterpreted 38 U.S.C. § 1111. He argued that § 1111 relieves him of having to prove a nexus between his current condition and service. The Federal Circuit disagreed and found that “‘the presumption of soundness relates to the second element required to establish a right to disability compensation—the showing of an in-service incurrence or aggravation of a disease or injury.’” (quoting Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009). The Federal Circuit found that the “‘presumption of soundness does not relate to the nexus requirement” and, therefore, “does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.’” Id. 

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