Citation Nr: 1805228 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-41 574A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for right eye injury residuals. INTRODUCTION The Veteran had active military service from January 1962 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This claim was previously before the Board in May 2017, when it was remanded for further development. While this appeal was pending, the RO granted service connection for loss of teeth, claimed as jaw injury residuals, in a November 2017 decision. Since that grant constitutes a full grant of the benefits sought on appeal, that claim is no longer before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND This case was originally remanded in May 2017 for a clarification of the October 2008 examination report, as it could not be determined whether the Veteran's nonservice-connected hypertension was causing the Veteran's right eye disability or if it was caused by a 1963 motor vehicle accident. Upon return of the clarification examination, which was accomplished in July 2017, the examiner determined that the Veteran's eye disorder preexisted service. Given these new findings by the examiner, the issue of whether the Veteran's disability preexisted service must be clarified, as to be explained in more detail below. The Veteran asserts that his right eye disability resulted from the two motor vehicle accidents he experienced while in active service, which took place in 1962 and 1963. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. Id. In other words, the "burden is not on the claimant to show that his disability increased in severity." Id. To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." Id. This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. Id. The burden is not met by finding "that the record contains insufficient evidence of aggravation. Id. The presumption of soundness relates to the second requirement - the showing of in-service incurrence or aggravation of a disease or injury. In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. If a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53. Notably, the July 2017 examiner diagnosed the Veteran with cataracts of the left eye; retinopathy of the right eye; and amblyopia of the right eye. The Veteran's right eye disorder was not noted at entry on his January 1962 entrance examination. The Veteran was deemed fit for duty. He is presumed to have been in sound condition at entry. See 38 C.F.R. § 3.304 (b) (2017). The July 2017 VA examiner stated that the Veteran's right eye disorder was not related to his service. The examiner also stated that the Veteran's right eye disorder started in childhood, many years before his active service. The examiner related that the Veteran experienced poor visual acuity in the right eye due to amblyopia ("lazy eye"). The examiner did not opine as to whether the preexisting eye disorder clearly and unmistakably existed prior to service and whether it did not increase in severity during service, or that any increase was due to the natural progress of the disease. The Veteran's service treatment records (STRs) show that his eyesight was normal and that his distance vision was 20/20 on the January 1962 entrance examination. His June 1964 separation examination shows that his right eye distance vision changed to 20/200. Another examination dated June 1964 showed that his right eye distance vision was 20/100, correctable to 20/20. As such, an addendum opinion must be obtained from the examiner to consider the STRs notations that the examiner previously missed. Furthermore, the VA examiner should address whether the Veteran had a preexisting eye disease or defect. VA's General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the entire claims file (including this Remand) to the July 2017 VA examiner for an addendum opinion regarding the Veteran's right eye disorder. If the July 2017 VA examiner is no longer available or unable to provide the requested addendum opinion, ask another VA examiner to review the Veteran's claims file and all medical records, and to provide the requested opinion. If the VA examiner wishes to examine the Veteran in order to be able to provide the requested opinions, schedule the Veteran for such an examination. The examiner should address the following questions: a) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran's right eye disorder existed prior to his entry into active duty in January 1962? In addressing this question, the examiner should consider the STRs notations from the January 1962 entrance examination and the two notations from June 1964 (his separation examination reports). b) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran's right eye disorder was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression during the Veteran's active service, as based on sound medical principles? Temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. In addressing this question, the examiner should consider the STRs notations from the January 1962 entrance examination and the two notations from June 1964 (his separation examination reports). c) If the examiner determines that the Veteran's right eye disorder did not clearly and unmistakably pre-exist service, or was not clearly and unmistakably not aggravated by service, state whether it is at least as likely as not (50 percent or greater degree of probability) that it began in service, was caused by service, or is otherwise related to military service. d) The examiner should comment on whether any of the Veteran's diagnosed eye disorders are congenital or developmental, and whether it is a defect or disease. The examiner should note that a defect is a structural or inherent abnormality or condition that is more or less stationary in nature. A disease is any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. e) The examiner will also comment on whether there is any disability superimposed on any identified congenital defect. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 2. Readjudicate the issue on appeal. If the claim is denied, issue and Supplemental Statement of the Case (SSOC) and provide the Veteran the opportunity to respond. Then, return the appeal to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Department of Veterans Affairs