Citation Nr: 1800571 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-20 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for eye condition. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. The Veteran testified at a Board hearing in August 2017. A copy of the hearing transcript is associated with the record. FINDING OF FACT The Veteran's eye condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by service. CONCLUSION OF LAW The criteria for service connection for an eye condition have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records and private treatment records have been obtained. The Veteran was also provided with a VA examination in May 2012 in connection to his claim. Neither the Veteran, nor his representative, has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection requires competent evidence showing: (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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must demonstrate 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. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F. 3d 845, 847 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1111 (presumption of soundness). "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 at 1096. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner. If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet.App. 231, 234. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet.App. at 235. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240. In this case, the Board finds that the Veteran's eye condition was noted upon entry into service, as it was clearly recorded on his enlistment physical. Consequently, to the extent the Veteran seeks compensation for his preexisting disability, the burden is on him to demonstrate an increase in disability during service, which would serve to establish the presumption of aggravation. The Veteran filed a claim asserting aggravation of a pre-existing eye condition due to his military service in March 2012. His induction examination shows a notation of amblyopia of the left eye. During service, the Veteran sought medical attention for his eye condition in November 1967, January, February, and March 1968. Based on his DD-214, the Veteran was discharged in April 1968 due to medical unfitness. Since the evidence shows that his eye condition did not manifest in service, there is no need to discuss the presumption of soundness, as the presumption only applies when a disease or injury manifests in service and was not noted upon entry. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). The Veteran was afforded a VA examination in May 2012. Upon examination, the Veteran demonstrated poor vision or blindness in his eye. The examiner found that the Veteran's left eye was unable to perceive objects, hand movements, or count fingers from a 3 feet distance. However, the examiner opined that the eye condition, which existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression as a result of his military service. The examiner found that a review of his induction physical report of vision was 20/20 OD (right eye) and 20/400 OS (left eye). Based on the examiner's review of the Veteran's treatment records, he found that the Veteran's eye condition was a result of its natural progression of its condition. While the Veteran's service treatment records indicate visits to the eye clinic on different occasions, the Veteran has not presented evidence showing that his condition had worsened due to his military service. The Board notes that the Veteran also has pseudophakia in both eyes. In his August 2017 Board hearing, he indicated that he had undergone lenses implants after service but that it did not improve the condition of his left eye. He denied any trauma to the head during service. By the time of the May 2012 VA examination, the Veteran no longer had cataracts or any conditions associated with it. The examiner indicated that his cataracts were removed 10 years prior, in 2002, more than three decades after service. There is no indication that the condition manifested during service or within one year after his separation from service. During his August 2017 hearing before the Board, the Veteran provided lay testimony, but he was uncertain whether his eyes had actually worsened during service. Moreover, even if he sincerely believes that his military service chronically aggravated his eye condition, the assessment of severity increase of his disability is a complex medical nature and certainly not of the type that he has the competence to make within the experiences of his five senses. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Thus, the Board does not find that the Veteran is competent (meaning medically trained) to make determinations regarding whether there was aggravation of the pre-existing eye condition during his military service. Following a review of the evidence in its totality, the Board finds that the most probative medical evidence weighs against the Veteran's claim. While the Board notes that the Veteran's was discharged from service due to medical unfitness, there is no indication that the eye condition was in any way exacerbated by his service. In sum, the evidence does not support the claim for service connection for the Veteran's eye condition. ORDER Service connection for an eye disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs