UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

No. 11-2355

D A N I E L R. G I L B E R

T , A P P E L L

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls (De cided Oc tober 24, 2012)
Robert V. Chisholm and Michae l S. Just , both of Providence , Rhode I sland, wer e on the brief for the a ppellant.

W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; Nisha C. Hall , Deputy Assistant Gene ral Counsel; and Miche le R. Katina , all of Washington, D.C., wer e on the brief for the a ppellee.

Be fore KASOL D, Chief Judge, and L ANCE and DA VI S, Judges

. KASOL D, Chief Judge , filed an opinion conc urring in part and dissenting in part.
PER C URI AM: Veter an Da niel R. Gilbert appea ls through counsel t hat part of a June 30, 2011, decision of the Boa rd of Vet er ans' Appea ls (B oard) that denied service connec tion for a psy chiatric disability other than post-traumatic stress disorder (PTSD). Mr. Gilbert arg ues that the Boa rd leg ally err ed in its application of the presumption of soundness. The Secre tary disputes this
arg ument. A panel has been convene d to c larify the law on when the presumption of soundness is for application. See Frankel v. Derwinski , 1 Vet.App. 23, 25-26 (1990) (pane l decision require d if

case clar ifies exis ting rule of law). For the rea sons stated below, that part of the Boa rd decision on appea l will be affir

med.

I. F ACTS Mr. Gilbert serve d on active duty from November 1987 to Novemb er 1 9 9 1

. Upon enlistment, he not ed p ast substance use, repor ted no medical history of "de pression or excessiveworry " or

"ne rvous trouble of any sort," and was evalua ted as psy chiatric ally normal. Record (R.)
at 946. The Boa

rd found that the service medical rec ords, though partially illegible, ref lect only that he was trea ted twice for substance use. Upon exit from service , he ag ain repor ted no depre ssion or nervous trouble and wa s evalua ted as psy chiatric ally normal. I n 1993, Mr. Gilbert soug ht mental health trea tment, repor ting that he had been intermittently suicidal since he was a y oung child and had depre ssive episodes on and off throug hout his life. Mr. Gilbert identified r elationship and financ ial problems as sourc es of his cur rent de pression, did not mention service , and was diag nosed with, inter alia, depre ssion, alcohol depende nce, history of substance abuse, and a persona lity disorder. Medica l r eports there afte r continued to dia g nose him simil arly , to wit: (1) a September 2001 trea tment rec ord rela ted his depre ssion, anxiety , and alcohol depende nce to " [p] roblems with c urre nt divor ce, unemploy ment, financ ial stressors, move back to Utah, minimal family support," R. at 2246, but also noted Mr. Gilbert' s re p o rt o f b eing prese nt "w hen they shot down an airliner loaded with dead bodies" and when "a n o i l t an k er
. . . hit a landmine and burned," R. at 2245; (2) a Dec ember 2001 trea tment rec ord diag nosed depre ssion and

n oted that Mr. Gilbert repor ted "on and off problems with panic attacks and depre ssion since discharg e[ from the] Navy 1991," R. at 2181; (3) Dec ember 2002, Dec ember 2003, and Marc h 2004
trea tment rec ords attributed his depre ssion to financ ial and rela tionship problems and d i d n ot mention his service , R. at 2236-39, 2227-30, 2224-26; (4) a J uly 2005 treat m en t n o te diag nosed depre ssion a

nd alcohol depende nce, noted that Mr. Gilber t "f irst noticed he wa s having a proble m with depre ssion just afte r he was discharg ed fr om the Navy in 199[ 1]," R. at 2192, and found that his sy mptoms "a

ppear rela ted to trag ic events that occur red during his milit ary service : fire on ship, shooting down of an airliner and l oss of so many innocent people," R. at 2194; and (5) an August 2005 trea tment r ecor d rela ted his de pression to " [f] inancial; homeless; occupational; longsta nding [hi story ] of alcohol depende nce," but noted Mr. Gilbert' s chief complaint of "ne ed[ing] to g et [hi s] thoughts sorte d out from what ha ppened to [him] in the milit ary ." R. a t 2189. I n J une 2005, Mr. Gilbert fi l ed for benef its for, inter alia, chronic depre ssion and 1 subsequently

was provide d with a number of VA examinations. A December 2007 VA examiner

He asserted that his de pr ession began in 199 2, shortly after he left service. See R. at 2 33 4. 1
2diag nosed depre ssion, alcohol depende nce, substan ce abuse, anxiety disorder, and probable

persona lity disorder, and found these disabiliti es not rela ted to service

. The examiner noted that Mr. Gilbert' s substance abuse and perso n al ity disorder pree x isted service , and that "he broug ht his depre ssion into service with him." R. at 1520. The examiner also noted that Mr. Gilbert provided

a medical h i s t o ry that contra dicted the understanding of previous rec ords, due either to memory difficulties from substance abuse or to an attempt to obtain service connec tion. A September 2009 VA exam iner rende red the same diag noses and also found the disabiliti es not rela ted to service beca use they pree x isted s ervice. A J une 2010 VA examiner found that none of his psy chiatric 2 disabiliti es worsene d bey ond their natura l prog ression as a result of milit ary service

. That examiner noted Mr. Gilbert's re p o rt that "he felt depre ssed for the first time when he was in the Navy ," but found that his substanc e abuse and per sonality disorder pr eexisted service and that any depre ssion prior to 200 7 wa s substance induced. R. at 913. Conversely , a Fe bruar y 2011 VA psy chiatrist' s letter found that Mr. Gilbert' s "de pression and anxiety are tightly woven to his milit ary experience ." R. at 867. The Boa rd decision on appea l notes t h at n o psy chiatric disability was noted upon entry to service and s t at ed that, "a s such, [ Mr. Gil bert] is entitled to the s tatutory presumption that he was of sound condition, unle ss" that presumption is r ebutted. R. at 21; see 38 U.S.C. § 1111 (vete rans shall be presumed s ound upon enter ing service , ex ce p t as t o disabiliti es not ed at that time, unless "c lear and unmistakabl e ev i d en ce demonstrates that the injury or disease [1] exis ted befor e

acc eptanc e and enrollment and [2] was not ag g rava ted by such service ")

. The Boa rd found the first
prong of the presumption rebutted, noting that "the Veter an himself has repor ted that he experience d depre ssion prior to service ." R. at 21. Howeve r, the Boa rd fo u n d t h e second prong of the
p re s u m p tion unrebutted, beca use (1) the September 2009 examiner found that Mr. Gilbert 's depre ssion was "due to stressful events and noted that [Mr. Gilbert] repor ted stressful events during his se rvice ," and (2) the F ebrua ry 2011 VA psy chiatrist' s letter found Mr . Gilbert' s depre ssion a nd anxiety "tig htly woven" to his service , such that there was not clea r and unmistakable evidenc e that his psy chiatric disabiliti es wer e not a g g rava ted during service . R. at 22. Finding the pre sumption

T he exam iner did note, though, that one focus of Mr . Gilb ert's an xiety w as gu ilt associated w ith dow nin g 2 an aircr aft. See R. at 9 98

. 3of soundness unrebutted, the Boa rd stated that the "pr esumption rema ins intact" and procee ded to

a deter mination on nexus. R. at 22. I n that nexus deter mination, the Boa

rd foun d by a preponde ranc e of the evidenc e that Mr. Gilbert' s curr ent psy chiatric disabiliti es wer e not rela ted to service

. I n support of that finding , the Boa rd noted that (1) t h e m o s t probative medical opinions found no rela tionship betwe e n h is c u r r e n t p s y chiatric disabiliti es and service , and (2) inconsistencies in Mr. Gil bert' s acc ount of t he medical history rende red his lay asse rt i o n s

— and medical opinions based on those la

y asser tions—not credible.

II. P ARTIES' ARG UMENTS On appe al, Mr. Gilber

t arg ues t hat t he Board leg ally err ed by finding that the pre sumption of soundness rema ined intact, but subsequently finding his curr ent disabiliti es not rela ted to service

. He asser ts t h at t h e Boa

rd cannot circ umvent the clear and unmistakable evide nce standard of the presumption of soundness by finding no nexus under the preponderanc e of the ev idence standard. I nstead, he states, "[o]nce the Boa rd deter minated that such clea

r and unmistakable evidenc e did not exis t [t o rebut the presumption of soundness, Mr. Gilbert]

. . . was en t i t led to have his claim considere d and adjudicate d based on the presumption that his pree x isting psy chiatric condition was ag g rava ted by service ." A

ppellant' s Br ief a t 8. The Secre tary arg ues that, even if the second element fo r s er v i ce connec tion had been established throug h the pre sumption of soundness, the third element st ill must be evaluated unde r the preponde ranc e of the evidenc e standard. See Holton v. Shinseki , 557 F.3d 1362, 1367 (F ed. Cir. 2009) (" [T] he presumption of soundness rela tes to the second [service connec tion] element

. . . [but ] does not reliev e t h e veter an of the obliga tion to show the prese nce of a curr ent disability and to demonstrate a nexus betwee n that disability and the in-servi ce i n j u ry or disease or ag g rava tion there of." (citations omitted)); Horn v. Shinseki , 25 Vet.App. 231, 236 (201 2) (noting that service

c o n n e ction require s demonstrating (1) a curr ent disability , (2) an in-servic e incurr e n c e o r a g g r a v a ti o n of a disea se or injury , and (3) a nexus betwe en the curr ent disability and disease or injury incurre d

or ag g rava ted during service ). As such, the Secre tary contends, it was not i m p er m i s s ible for the Boa rd to f ind tha t ( 1) there was not clear and unmistakable evidenc e that Mr. Gilbert' s psy chiatric disabiliti es we re not ag g rava ted in service , and also that (2) the preponderanc e of the evidenc e

4ref

lected that they wer e not rela ted to service

. The Secre tary further arg ues that the Boa rd' s finding of no nexus betwe en Mr. Gilber t's c urre nt disabilit y

and ser vice is not clea

rly err oneous, such that aff irmance of the B oard de cision is warra nted.

III. ANALYSIS The law surrounding the presumption of soundness and its application can be confusing and has been the subject of much litigation. See , e.g. , W agner v. Principi , 370 F.3d 1089, 1093 (F ed. Cir. 2004) (notin g t h at t he st andar d for rebutting the presumption of soundness "is somewhat difficult
to parse " and that the ag g rava tion prong for rebuttal "ma y seem odd" wher e a pree x isting condition is conce ded)

. As further discussed below, both Mr. Gilbert' s arg uments reg arding the presumption of soundness and the Boa rd 's ap p l i cation of the presumption of soundness in this case ref lect a g ener al misunderstanding of the pre sumption and when it is for applica tion. A. The Pre sumption of Soundness Gra teful for their service , our Nation provides veter ans compensa tion fo r d isabiliti es "r esulting f

rom persona l injury

suffe red or

disease c ontrac ted in line of duty , or for a g g rava tion of

a pree x isting injury

. . . or disease

. . . in line of duty ." 38 U.S.C. § 1110; Holton , 557 F.3d at 1366; W agner , 370 F.3d at 1093; see also Forshey v. Principi , 284 F.3d 1335, 1360 (F ed

. C i r. 2 0 0 2) (noting our nation' s g ratitude to a "' specia l cl as s o f ci tiz ens, those who risked harm to serve and defe nd their country ' " (quoting Bailey v . W est , 160 F.3d 1360, 1370 ( Fe d. Cir. 1998)). To rec eive such co m pensation, the evidenc e g ener ally must show (1) a curr ent disability , (2) an in-servic e incurre nce or ag g rava tion of a disease or injury , and (3) a nexus betwe en the curr ent disability and disease or injury incurre d o r aggr avate d during service

. Holton , 557 F.3d at 1366; Horn , 25 Vet.App. a t 236. When assessing whether a disease o r injury was incurre d in service , howeve r, there are "situation[s] wher e a question arises whether a veter an' s medical problems that arose during service exis ted befor e he joined the arme d fo rc es an d , there fore , wer e not incurre d ' in line of duty "' for
purposes of disability compensa tion under section 1110. Dye v. Mansf ield , 504 F.3d 1289, 1293 (F ed. Cir. 2007)

. Section 1111' s presumption of soundness addre sses that situation, by mandating that veter an s ar e p resumed to have been in sound condition upon entry into service , except as to

5disabiliti es noted at t h at t i m e. 38 U.S.C. § 1111; Dye , supra ; see also Holton , 557 F.3d at 1367 3 (noting that the "pr esumption of soundness rela tes to the second element [of service connec tion]

. . . , the showing of in-ser

vice incur renc e or a g g rava tion of a disease or injury ")

. B. Prope r Applica tion of the Presumption of Soundness Thus, to he lp a veter an combat any contention that his disea se or injury pree x isted service , the presumption of soundness serve s as a shield ag ainst any asser tion by the Secre tary that a veter an' s in-servic e disability that was not noted upon entry to service pree x isted service. See Dye , supra ; W agner , 370 F.3d at 1095 (noting that the presumption of soundness was streng thened in 1943 in part ba sed on conc erns a t that time that ve tera ns would be denie d benef its "on the theor

y that they

wer e disabled befor e they wer e ever taken into the service " (quoting 89 Cong. Rec. 7,386 (1943) (statement of

Rep. Rankin)))

. On the other hand, the presumption of soundness is not a sword f or the veter an to fulfill the second element of service conne ct i o n wi t hout any evidenc e of the manifestation of an in-servic e disability

. Otherw ise stated, befor e the presumption of soundness is for appl i ca t i o n , there must be evidenc e that a disease or injury that was not noted upon entry to service manifested or was incu rr ed i n s ervice. See Holton , 557 F.3d at 1367 (the presumption of soundness does not " relieve the veter an of the burden of showing that [he] suffe red from a disease

o r injury while in service ") ; Horn , 25 Vet.App. at 236 (" I n order to invoke the presum p t i o n o f soundness, a claimant must show that he or she suffe red from a disease or injury while in service .") ;

see also Dye , 504 F.3d at 1293 (pre sumption of soundness involves question of pree x istence of "me dical problems that arose during service ") ; W agner , 370 F.3d at 1093 (disability compensa tion require s "' persona l injury suffe red or disease contra cted in line of duty ' " (quoting 38 U.S.C. § 1110)). 4

A s noted pr eviously , this pr esum ptio n m ay be reb utted " w

here clear and un

m istakable evidence dem onstrates 3 that the injury or disease existed befor e accep tance and enrollm ent and w as not agg ravated by such service." 38 U.S.C. § 1 11 1; see Horn , 2 5 Ve t.App. a t 23 5.

Bo ard fin dings regard ing w heth er a claim ant suf

fered f ro m an in j ury or disease in service, and w heth er that 4 in- service disease or injury is related to a current disability or one that pr eexisted servic e , a r e q ue st i o ns of fact to be review ed by the Court un der the " clearly err oneous" standard. McLend on v. Nicholso n , 20 V e t

. Ap p. 79 , 82 (2 00 6) (B oar d's fin ding that a veteran suf fered an in- service event, injury , or disease is review ed un der the " clearly err oneous" standard) ; Cogh ill v. Brown , 8 Vet.A pp . 352 , 345 (199 5) (h old ing th at Boar d's f inding of n o relationship betw een any in- service injury

and a current disab ility

w as " not clear ly

erroneous" ); Gilbert v. Derwinski , 1 Vet.A pp . 49, 52 (1 99 0) (" ' A fin ding is " clearly err oneous" w hen

. . . the review ing court on the entire evidence is left w ith the definite and firm

6Once the presumption o f s oundness is applied, if the Secre tary is unable to rebut the

presumption, the disease or injury that manifested in service is deeme d incurre d in service , such that the second element of service connec tion is established. See Horn , 25 Vet.App. at 236 (" When VA fails to car

ry its burden as to either pree x istence or lack of ag g rava tion," the veter an' s entitlement to compensa tion is "de termined upon the assumption that the [di sease or] injury was incur

red dur ing service ." (quoting W

agner , 370 F.3d at 1094)); see also W agner , 370 F.3d at 1096 (" [I ]f t he
g overnme nt fails to rebut the pre sumption of soundness . . . , the vetera n' s claim is one for service

connec tion [based on in-servic e incurre nce]. This m ea n s that no deduction for the deg ree of disability exis ting at the time of entra nce will be made if a rating is awa rded." ). Moreove r, contra ry to Mr. Gilbert' s first arg ument, beca use the failure to rebut the presumption of soundness results in

an injury or disease being deeme d service incurre d, there is no presumption of ag g rava tion following application of the presumption of soundness. See Horn , 2 5 Ve t

. Ap p
. at 234 (noting that the presumption of aggr av at ion only involves disabiliti es noted upon entry to service ); see also 38 U.S.C. § 1153; W

agner , 370 F.3d at 1094 (" [I ]t is clea r that Congr ess intended

. . . to eff ectively

conver t ag g rava tion claims into ones for service connec tion [based on in-servic e incurre nce] when the g overnme nt fails to overc ome the pre sumption of soundness."). C. Nexus Determination Even if an injury or disease is deeme d incurre d in service by virtue of th e p re s u m p t i o n of soundness (or found to be actually in cu rr ed i n service ), a veter an st ill must establish that he has a

curr ent disa b i l i t y t h at i s rela ted to the in-servic e injury or disease. See Holton , 557 F.3d at 1367 (" The presumption of soundness

. . . does not relieve the veter an of the obliga tion t o s h o w the
prese nce of a curr ent disability and to demonstrate a nexus betwee n that disability and the in-servic e injury or disease o r aggr av ation there of." ). Moreove r, that nexus deter mination is based on a weig hing of the evidenc e by the preponde ranc e o f t h e ev i d ence standard, with the benef it of the doubt g iven to the veter an. See G ilbert , 1 Vet.App. a t 55 (" [I f] the evidence supports the claim or

conviction that a m istake has been com m itted.'" (q uoting United Sta tes v. U.S. Gypsu m Co. , 33 3 U.S. 36 4, 39 5 (1 94 8) )). On the other han d, w

heth er the Bo ard fin dings am ount to clear and un m istakable evidence suf

ficien t to reb ut the pr esum ptio n of soundnes s is review ed de novo un der the " arb itrary, capr icious, an abuse of discretio n, or otherw ise not i n a c cor dance w ith law " standard of review

. See Joyc e v Nicholso n , 19 Vet.App. 36 , 49 -50 (2 00 5) (citing 3 8 U

. S

. C. § 7 26 1( a)( 3) (A)); see also Horn , 2 5 Ve t.App. a t 23 6.
7is in rela tive equipoise," the claim is g rante d, and if "a fair preponde ranc e of the evidenc e is ag ainst

the claim,

. . . the claim is denied." ). Contrary to Mr. Gilb er t 's arg ument, the Boa

rd is not circ umventing the "c lear and unmistakable evidenc e" standard of the presumption of soundness by employ ing the "pr eponder an c e o f the evidenc e" standard for its nexus deter mination. This is beca

use the leg al standards for finding a nexus and for rebutting the presumption of soundness are differ ent,
compare 38 U.S.C. § 1111, with Gilbert , 1 Ve t

. Ap p
. at 35, and the proper application of those differ ent standards does not constitute a circ umvention o f o ne for the other. Cf. McLendon , 20 Vet.App. at 81, 83 (holding that the Boa rd should use the preponde ranc e standard with reg ard to evidenc e of a curr ent disability , and the " indication" sta ndard—" a low thre shold"—with reg ard to evidenc e that the disability may be associate d with an in-servic e event, when evalua ting whether a medical e x amination or opinion is warra nted). D. Application of L aw I n the decision on appea l, the Boa rd found (1) no psy chiatric disorders noted upon entry to service , and (2) the pres u m p t i o n of soundness unrebutted (af ter finding clea

r and unmistakable evidenc e that Mr. Gilbert had depre ssion befor e enter ing service , bu t n o clear and unmistakable evidenc e that it was not ag g rava ted by service ), but (3) Mr. Gilbert' s curr ent psy chiatric disabiliti es for which he was seeking benef its unrela ted to service

. Notably absent from the Boa rd' s statement, howeve r, is any

discussion or finding as to whethe r Mr. Gilber t suffer ed fr om depre ssion while i n service

. As dis cu ssed above, absent the predic ate finding that a pre- service disease or injury manifested or

was incur

red in ser vice, the pr esumption of soundness is not for applica tion. To the extent that it could be sug g ested that the Boa rd' s application of the presumption of soundness without a discussion of in-servic e manifestation might be construed as an implicit finding that Mr. Gilbert' s psy chiatric disability manifested in service , any such s ug g estion would be misplaced here

. The Boa rd noted that (1) the service medical rec ords ref lected no comp l ai n t s o r trea tment of i n-ser

vice depression or anxiety , (2) Mr. Gilbert reported no in-servic e depression o r anxiety upon leaving service , and (3) the exit exa m i n at i o n repor t evalua ted Mr. Gilbert as psy chiatric ally normal. The Boa rd also found Mr. Gilbert not cre dible as to his rec ollections of his medical history

. These finding s do not support an arg ument that the Boa rd rende red an im p licit fac tual finding that Mr. Gilbert' s depre ssion manifested in service ; rathe r, t h e Bo ard' s statement

8ref

lects that it misunderstood the law or, at least, failed to e x plain adequa tely its application of the presumption of soundness. This, howeve r, does not end the Court's inquiry

. Ha v ing determined that the Board erre d, the Court must now deter mine whether Mr. Gilbert was prejudi ce d b y this err or. See 38 U.S.C. § 7261(b)( 2) (re quiring the Court to "take due acc ount of the rule of prejudicia l err or" ); Shinseki v. Sanders , 556 U.S. 396, 406-07 (2009). The Court holds that he was not. I n particula

r, the Boa rd made two finding s critica l to this decision: first, that Mr. Gilbert was not cre dible as to his rec ollections of his medical history , including his lay testimony that he suffe red from depre ssion in service ; and second, that the evidenc e of rec ord did not support a finding of nexus betwee n his curre nt depre ssion and an injury or di sease incurre d or agg rava ted by service

. As the Court explained above, reg ardle ss of whether the Boa rd err ed i n ap p l y ing the presumption of soundness, a ve tera

n must sti ll demonstrate a ne x us betwee n his c urre nt disa bility and his servic e. See Holton , supra
. The Boa rd deter mined that Mr. Gilbert had not done so, and Mr. Gilbert has not persua ded the Court that this deter mination was clea

rly err oneous. See 38 U.S.C. § 7261(a) (4) (the Court revie ws the Boa

rd' s fac tual finding s under the "c lear ly err oneous" standard) ; Hilkert v. W est , 12 Vet.App. 145, 151 (1999) (en banc) (" An appellant bear s the burden of persua sion on appea ls to this Court.") , aff'

d per curiam , 232 F.3d 908 (F ed. Cir. 2000) (table)

. The Court will there fore aff irm the B oard' s decision.

III. SUMMARY AND CONC LUSION The a pplication of the pre sumption of soundne ss applies only when a disease or

injury not noted upon entry to service manifests in service , and a questi o n ar i s es as to whether it pree x isted service

. See Holton and Dye , both supra. Under those circ umstances, the presumption of soundness shields the veter an from a finding that the di s ease or injury pree x isted (and there fore was not incurre d in) service by requiring the S ecr etar y to prove b y cl ear and unmi stakable evidence that a disease or injury manifesting in se rvice both pr eexisted service and was not ag g rava ted by service

. See Dye an d W

a gner , both supra. I f the Secre tary rebuts the presumption, the second element of service connec tion has not been established, and service connec tion is unwarra nted. See W

agner , supra
. Moreove r, the Secre tary ' s inability to rebut the presumption does not g ive rise t o a

9presumption of ag g rava tion; rathe r, the in-servic e disease or injury is deeme d to have been incurre d in service

. See W

agner and Horn , both supra
. Even when an in-servic e injury or disease is deeme d service incurre d pursuant to the presumption of soundness, disability compensa tion is not war rante d for a curr ent disability unless the evidenc e is at least in equipoise that the curr ent disability is rela ted to the disease or

injury deeme d service incurre d. See H olton and W agner, both supra
. He re, the Boa

rd err ed by apply ing the presumption of soundness without addre ssin g o r finding whether Mr. Gilbert' s psy chiatric disability manifested in service

. I n this case , howeve r, the Boa rd' s err or was harmless, as it found that Mr. Gilbert' s curr ent depre ssion lacke d a nexus to service , and Mr. Gilber

t has not demonstrated tha t this determination was cle arly err oneous. Upon consideration of the fore g oing, that part of the J une 30, 2011, Boa rd decision on appea l is AFF I RMED.

KASOL D, Chief Judge , concur ring in par t an d d i s s enti ng in part: I fully concur in the per curia m deter

mination that the Boa

rd err ed as a m at t er o f law in apply ing the presumption of soundness when there was no predic ate finding that Mr. Gilbert' s depre ssion – which was not noted
upon entry to service – manifested in service

. Although ref ere nced or implied in previous case law, the per curia m order now clea rly states that, befor e the presumption of soundness is for application, there must be evidenc e that a disease or injury – that was not noted upo n entry to service

– manifested in service ; otherwise stated, absent such manifestation, the presumption of soundness is not f or application. I also fully concur in the reje ction of Mr. Gilber t's arg ument that the failure to rebut the presumption of soundness results in an injury or disease being presumed ag gra v at ed i n service

. Rather, as clea

rly stated in the per curia m order , when t h e ev i d en ce of rec ord does not clea rly and unmistakably rebut the presumption of soundness, the disease or injury that manifested in service is deemed inc urre d in service

. Howeve r, I dissent from the ultimate decision to aff irm the Boa

rd decision on appea l. I find
contra dictory the Boa

rd' s finding s that Mr. Gilbert' s depre ssion (1) was inc urre d in service (which is the result of finding that the presumption of soundness was not rebutted) and (2) was not rela ted
to (incurr ed or ag g rava ted in) service

. Given these appar ent l y co n t ra d ictory finding s, I believe

rema nd is the proper remedy , so the Board c an cl arify and ex plain its finding s and properly apply

10the law. See Tucker v. W est , 11 Vet.App. 369, 374 (1998) (re mand is appropr iate "w here the Boa rd has i ncorr ectly applied the law, failed to provide an adequate s tatement o f rea sons or bases for its deter minations, or wher e the rec ord is otherwise inadequa te" ); Allday v. Brown , 7 Vet.App. 517, 527 (1995) (B oard' s statement "must be adequate to enable a claimant to understand the prec ise basis for the Boa rd' s decision, as well as to fac ilitate revie w in this Court") ; Godfrey v. Derwinski , 2 Vet.App. 352, 355 (1992) ( "I t is not t he role of this Court to serve as the initial finder of fa ct." ).

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