¶1concurring in part and dissenting in part:
¶2I concur in the opinion of the Court, except as to the remedy and related observations respecting the options of the BVA on remand. I would reverse outright and thus dissent from the remedy of remand.
¶3In addition to the extensive testimony the appellant has presented at hearings before both the VARO and the Board, the evidence against a finding of a preservice condition includes: the appellant’s entrance medical examination which is silent as to the existence of any abnormalities, including any history of epilepsy, fits, or loss of consciousness; childhood medical records and school health records which are silent as to any seizure disorder; and several corroborative statements from the appellant’s family and friends, all of whom confirm long-term relationships with the veteran and no knowledge of any seizure disorder until after his induction into service. The veracity of this evidence is not so suspect as to strip it of any corroborative effect on the presumption of soundness.
¶4I certainly agree that “the neurologist’s refusal to opine regarding the etiology of the seizure disorder lacked any probative value on [the question of preserviee inception] and could not be clear and unmistakable evidence.” Ante at 262. The other evidence tending toward a preservice condition can hardly carry the day for an “unmistakable” rebuttal of the presumption of soundness. That evidence is shrouded in the darkness of having been produced from Mr. Vanerson while he was confused or drugged and recovering from a seizure.
¶5In my view, as a matter of law, the evidence tending to show a preservice condition, when considered with all of the evidence, as the majority opinion accurately states, cannot present an unmistakable rebuttal of the presumption of soundness. If rebuttal of the presumption could be accomplished by a preponderance of the evidence, with reasonable inferences drawn therefrom, we would have a different case for review. But such is not possible under an “unmistakable” standard. Inferences are permitted, and while there is room for mistake even under the “reasonable certainty” requirements of a “clear and convincing” standard of proof case, only an inference that is iron clad and copper riveted can be “unmistakable.” The evidence in this case which demonstrates that the seizure disorder existed prior to service is not “unde-batable,” and I would reverse the Board’s holding and direct the calculation of benefits and an effective date as required by law.