Fed. Cir. Opinion, Gilbert v. Shinseki, Presumption of Sound Condition

On April 24, 2014, the United States Court of Appeals for the Federal Circuit (Fed. Cir.) issued a published opinion in Gilbert v. Shinseki.  The case discusses the statutory “presumption of sound condition” under 38 U.S.C.  § 1111 within the context of the general requirements for direct service connection.

On appeal, Mr. Gilbert asserted that the application of Section 1111 “relieves him from having to prove that his condition manifested in service or demonstrate a nexus between his present psychiatric condition and in-service injury.”  The Fed. Cir. disagreed, Section 1111 does not “relieve the veteran or having to show nexus [a causal relationship between what occurred in service and current diagnosis.”

Finite points of law are important, however, the critical question is what could Mr. Gilbert have done to establish service connection?  The answer lies in the general framework for establishing direct service connection which requires:  “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.”  Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir.2004).  See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Mr. Gilbert has a current diagnosis: major depressive disorder, which satisfies the first element of Shedden.  Further, Mr. Gilbert presented at least some evidence that the condition manifested while in the Navy and the evidence didn’t rebut the presumption that every service member is presumed free of defects unless noted at time of entry.  However, Mr. Gilbert failed to provide competent evidence (in particular a medical opinion) that established a causal relationship between what occurred in service and his present diagnosis.  In the future, if Mr. Gilbert is able to obtain medical evidence establishing a causal relationship he does have the ability to file a request to reopen.

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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

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