Citation Nr: 1339612 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 09-26 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a congenital right eye optic nerve pit. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from June 1960 to October 1981 in the United States Marine Corps. In addition, the Veteran also had active duty service as a cadet at the United States Military Academy from July 1956 to June 1960. His awards and decorations include the Combat Action Ribbon, Presidential Unit Citation, the Republic of Vietnam Campaign Medal with 60 device, the Vietnam Service Medal with 4 stars, and the Republic of Vietnam Cross of Gallantry. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in June 2012 and September 2013 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration. In the September 2013 Board decision, the Board granted service connection for the separate issue of bilateral glaucoma of the eyes. The RO implemented the Board's service connection grant in a September 2013 rating decision, assigning a 10 percent rating for the bilateral glaucoma disability. At the present time, the Veteran has not since appealed either the initial rating or effective date assigned for his bilateral glaucoma disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). Thus, at present, the bilateral glaucoma issue is not on appeal before the Board. A review of the Virtual VA paperless claims processing system reveals an additional October 2013 VA eye examination, which is pertinent to the present appeal. However, this report was reviewed by the RO in the October 2013 supplemental statement of the case (SSOC). Thus, there is no prejudice for the Board to now consider this record. In addition, a review of the Virtual VA paperless claims processing system also reveals a pertinent November 2013 Post-Remand Brief from the Veteran's representative that has been considered by the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence does not show that the Veteran's pre-existing congenital right eye optic nerve pit disease was clearly and unmistakably not aggravated by active service. 2. The Veteran's congenital right eye optic nerve pit disease was incurred in service. CONCLUSION OF LAW A congenital right eye optic nerve pit disease was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2013); VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the claim is granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant, 17 Vet. App. at 131; Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). The evidence of record demonstrates that there is clear and unmistakable evidence that the right eye optic nerve pit existed prior to service. The Veteran asserts that his current right eye optic nerve pit disability was either incurred or aggravated during his second period of active service from June 1960 to October 1981. The Veteran believes that a congenital right eye optic nerve pit disability, which existed prior to his induction as a cadet into West Point in 1956, underwent a significant worsening or aggravation in the 1970s during active service. At that time, his field vision worsened due to his right eye optic nerve pit disability. He also asserts his visual acuity worsened, but in this regard he is already service-connected for glaucoma that was occurring at the same time. He says the firing of weapons and artillery aggravated his right optic nerve pit disability beyond its normal progression. At the outset, the Board notes that it remanded the case in September 2013 to secure a VA examination to determine whether the Veteran's congenital right eye optic nerve pit is a congenital "disease" or a congenital "defect." For congenital or hereditary diseases, service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. Even if it is determined during service that a Veteran had a congenital disease, as opposed to a congenital defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry, and VA must show by clear and unmistakable evidence that it preexisted service. Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran initially had active duty service as a cadet at the United States Military Academy from July 1956 to June 1960. However, the majority of these service treatment records (STRs), including his induction examination in 1956, are missing from the claims folder. The presumption of soundness still attaches where a portion of the Veteran's service medical records including his service entrance examination report were unavailable and were presumed to have been lost in a fire. Lee v. Brown, 10 Vet. App. 336, 339 (1997); Doran v. Brown, 6 Vet. App. 283, 286 (1994). In short, despite the missing service records, the Veteran is presumed sound at entrance in 1956. The evidence reveals that the Veteran had a congenital right eye optic nerve pit disease prior to his first period of active duty service in July 1956. STRs dated in July 1973 indicate that the Veteran was referred for evaluation of optic discs. There was a long history of myopia, deep cupping, and small defect of the temporal aspect of the right disc. It was noted that there was abnormality of the optic disc noted in 1956. In May 1971, there was a diagnosis of coloboma of the optic nerve. It was also noted on examination that the Veteran was a boxer. The diagnostic impression was unilateral optic pallor with increased cupping, secondary to congenital coloboma; secondary to trauma as he was a boxer for a year; and congenital abnormality of the optic disc pit. In July 1973, a congenital abnormality of the right optic disc was noted. In December 1978, he was seen complaining of bizarre pattern on visual field. The provisional diagnosis was optic pit, glaucoma, congenital disc coloboma (present at birth). It was noted that he had a known abnormality of the right eye disc documented since 1973. He had no visual complaints although in lights, he recently discovered scotomas of the right eye. The working diagnosis was optic pit, congenital disc anomaly of the right eye, and field defect superiorly of the right eye. In December 1980, it was noted that an unusual field defect had been seen in 1958 during his first period of service. In multiple annual physicals, it was noted that the Veteran had defective visual acuity that was corrected to 20/20 or only slightly worse. Post-service in a September 2007 private eye examination, the physician diagnosed a right eye optic nerve pit that the Veteran was born with. It was noted that this pit had caused severe visual field loss in the right eye and cannot be restored. An October 2007 VA examiner also noted a congenital optic pit in the right eye. A July 2012 VA eye examiner, who added a March 2013 addendum opinion, also diagnosed a congenital right eye optic pit that was not incurred in service, but rather clearly and unmistakably existed prior to service. The examiner assessed that optic nerve pits are a congenital excavation of the optic nerve head that can cause visual field defects. An October 2013 VA eye examiner clarified that the Veteran's preexisting right eye optic nerve pit can be classified as a disease since it is capable of deteriorating if serious retinal detachment occurs. The examiner also assessed that the right eye optic nerve pit clearly and unmistakably existed prior to service. Finally, in a June 2013 personal statement, the Veteran himself reported that in 1956 "something unusual had been observed during my pre-induction examination for West Point." According to the Veteran, this was presumably his right eye optic pit disability. The Veteran added that he did not experience any loss of his visual field due to the optic pit until 1973 during his second period of service. As stated above, rebutting the presumption of soundness is a two-part analysis. The Veteran's right eye optic pit having been shown by clear and unmistakable evidence to pre-exist service, consideration must be given to whether clear and unmistakable evidence exists to show that the disability was not aggravated during service. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease or disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). A veteran seeking service connection by aggravation is not entitled to presumption of aggravation in service, where there was temporary worsening of symptoms, but the condition itself did not worsen. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). "VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative evidence to prove that there was no aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). With regard to the evidence of aggravation, the October 2013 VA eye examiner assessed that the preexisting congenital right eye optic nerve pit disease was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the right eye optic nerve pit has not caused serious retinal detachment. Additionally, the possible associated superior visual field defect appears to be essentially stationary at least since the 1970's (whether this is caused solely by the optic pit vs. glaucoma is difficult to delineate, the location of the pit directly temporal in the disc suggests it is more likely a visual field defect secondary to glaucoma). The July 2012 VA eye examination also provided a similar rationale for a lack of aggravation. However, the Board notes that STRs dated prior to the 1970s do not indicate any visual field defects; thus it isn't clear why visual field problems that began appearing in 1973 would not indicate evidence of aggravation of the underlying optic nerve pit disability. For example, an examination in December 1978 shows Goldmann fields with superior field loss in the right eye with a diagnosis of an optic pit. A January 1979 in-service eye examination also recorded acute visual field defects from an optic pit or congenital disc abnormality. This symptomatology was not present in the 1960s, so it is unclear why the VA examiners would not consider this to be evidence of aggravation. There is clearly at least some evidence of worsening of his right eye visual field during service beginning in the 1970s, although it is not entirely clear whether this worsening was due to his congenital optic nerve pit or his glaucoma. Additionally, in a September 2007 private eye examination, after performing a visual field report, a private eye physician diagnosed a right eye optic nerve pit that the Veteran was born with. Importantly, it was noted that this pit had caused severe visual field loss in the right eye and cannot be restored. Although not based on a review of relevant STRs, this private opinion provides some limited support of aggravation. In sum, the evidence does not show that the Veteran's congenital right eye optic nerve pit disease was clearly and unmistakably not aggravated by service; the Board does not find the evidence is undebatable. Cotant, 17 Vet. App. at 131. Accordingly, because there is not clear and unmistakable evidence that a right eye optic nerve pit disease pre-existed service and was not aggravated thereby, the presumption of soundness is not rebutted and the claim becomes one for service connection. See 38 U.S.C.A. § 1111; Wagner, 370 F.3d at 1094-96. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Upon review of the evidence of record, the Board grants the appeal for service connection for a congenital right eye optic nerve pit disease. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, an October 2013 VA eye examiner diagnosed an optic nerve pit of the right eye. In addition, earlier October 2007 and July 2012 VA eye examiners rendered the same diagnosis - an optic nerve pit of the right eye. Thus, the evidence clearly reveals a current right eye optic nerve pit disability for the Veteran. Second, there is evidence of an in-service disease as indicated by the STRs diagnosing a congenital right eye optic nerve pit disease in the 1970s. See 38 C.F.R. § 3.303(a), (b). Finally, the evidence of record demonstrates a relationship between the in-service right eye optic nerve pit disease and the currently diagnosed right eye optic nerve pit disease. See 38 C.F.R. § 3.303(a), (b); Shedden, 381 F.3d at 1167. A Veteran still must establish that he has a current disability that is related to the in-service injury or disease. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013). An unrebutted presumption of soundness does not necessarily lead to service connection for the disease or injury because it still must be shown appellant that there is a nexus between the current disability and service. Gilbert, 26 Vet. App. at 52. Post-service, both private and VA examiners have rendered diagnoses of the right eye optic nerve pit disease. The Board finds the Veteran's lay assertions competent and credible as to his in-service and continuing post-service eye symptoms. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a congenital right eye optic nerve pit. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Resolving all reasonable doubt in favor of the Veteran, service connection for a congenital right eye optic nerve pit is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs