## Facts

- Raymond G. Maxson, a World War II veteran, had a partial colectomy in 1938 before entering military service in 1939.
- His induction examination noted the colectomy but found him physically qualified for service.
- During service, he experienced abdominal problems, including episodes of colicky pain with nausea and vomiting, a bowel obstruction in January 1942, and diagnostic testing in 1943.
- A July 1945 separation examination recorded the colectomy history but noted no abdominal tenderness and no symptoms or disability attributed to the condition; he was discharged in September 1945.
- Maxson first sought VA benefits in 1989, alleging service-connected aggravation of the preexisting condition; the claim was denied, later reopened with new and material evidence, and supported by medical and lay statements asserting in-service aggravation.
- The Board of Veterans’ Appeals found the presumption of aggravation applicable but concluded it was rebutted by clear and unmistakable (described as clear and convincing) evidence, including the normal separation examination, the long absence of post-service treatment/complaints, and the delayed filing.
- The Court of Appeals for Veterans Claims affirmed, and Maxson appealed, arguing that post-service silence and missing records could not, as a matter of law, rebut the presumption.

## Issues

1. Whether a prolonged period without medical complaint and an absence of post-service medical records may be considered as part of the evidence to rebut the statutory presumption of aggravation of a preexisting condition under 38 U.S.C. §§ 1153 and 1154(b).

## Decision

- The Federal Circuit affirmed the judgment denying benefits.
- It held that a prolonged period without medical complaint and a long gap in treatment may be considered as one factor in determining whether the presumption of aggravation has been rebutted.
- It rejected the categorical argument that absence of evidence can never contribute to “clear and unmistakable” (or “clear and convincing”) rebuttal evidence.
- It emphasized its limited jurisdiction: it could review statutory interpretation but not reweigh evidence or revisit factual determinations.

## Legal Principles

- Under 38 U.S.C. § 1153, when a preexisting condition increases in severity during service, aggravation is presumed unless rebutted by evidence showing the increase was due to natural progress or that there was no permanent aggravation attributable to service.
- Evidence of a prolonged period without medical complaint or treatment may be probative in assessing whether a claimed in-service worsening resulted in chronic or permanent aggravation.
- Absence of post-service complaints or treatment is not automatically dispositive, but it may be weighed with other record evidence (including separation findings and timing of the claim) in the rebuttal analysis.
- The Federal Circuit generally may not review factual determinations in veterans’ benefits cases and may address only legal questions such as statutory interpretation.

## Conclusion

The court held that adjudicators may treat a long post-service gap in complaints or treatment as relevant evidence—along with other record facts—when determining whether the presumption of aggravation for a preexisting condition has been rebutted under 38 U.S.C. § 1153.


Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)