Citation Nr: 18156069 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-03 835 DATE: December 6, 2018 ORDER Entitlement to service connection for a right eye disability is denied. FINDING OF FACT The Veteran’s right eye disability, which existed prior to his periods of active service and was noted upon entry onto active service in July 1952 and August 1954, did not increase in severity during his periods of active service. CONCLUSION OF LAW The criteria for service-connected aggravation of a preexisting right eye disability are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1952 to June 1954 and from August 1954 to April 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. The Board remanded the Veteran’s claim for service connection in September 2017 for further development. That development having been completed, the claim has returned to the Board. Accordingly, the Board finds that there has been substantial compliance with its remand directives, and that no prejudicial error exists in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. Entitlement to service connection for a right eye disability is denied. The Veteran maintains that his current right eye disability, which existed prior to his entry onto active service, underwent an increase in severity during his active service. The Board concludes that the preponderance of the evidence is against a finding that his preexisting right eye disability underwent an increase in severity during his duty service. 38 U.S.C. 1153; see 38 C.F.R. 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Therefore, for the reasons discussed below, the Board finds that service connection is not warranted. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). VA regulations provide that 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 examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). If a pre-existing disability 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. In that case 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen, 19 F.3d at 1417. If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. The Board finds that the presumption of soundness does not attach in this case. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). This is so because the Veteran was diagnosed as having aphakic, traumatic, right eye on the entrance examination in July 1952 and his vision was “count fingers”. The Veteran was diagnosed with amblyopia of the right eye due to shrunken cataract, traumatic, stationary, on the entrance examination in August 1954 and his vision was light perception. Because the above right eye disability(ies) was noted at the time of entry into service, the only means by which service connection may be established for these disabilities is by showing his service aggravated it, meaning chronically (i.e., permanently) worsened it beyond its natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. That is, the Veteran cannot bring a claim for service connection for such a disability noted at the time of entry into service, but instead a claim for service-connected aggravation of that disability. And in this circumstance 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 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. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (all holding that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered “aggravation in service”, unless the underlying condition itself, as contrasted with mere symptoms, has worsened). Only if a Veteran shows a chronic or permanent worsening of his preexisting condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was due to the natural progress of the disease. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Here, the evidence of record does not reflect a chronic or permanent worsening of the Veteran’s preexisting right eye disability during his active service. During his first period of service on July 28, 1952, it was noted that the Veteran had been hit in the eye with a rock and his vision was poor. The assessment was a cataract. The Veteran’s June 1954 separation examination demonstrates that the Veteran was diagnosed with aphakic traumatic and his right eye vision was 20/400. During his second period of service in June 1955, the Veteran’s service treatment records show that his right eye was hit by a softball causing a conjunctival hemorrhage on the nasal side. In August 1955, the Veteran underwent right eye surgery, cataract dissection at the U.S. Army Hospital at West Point, New York. It was noted that the Veteran had a traumatic cataract resulting from an injury in 1945 when he was hit in the right eye with a stone. The recent in-service trauma in June 1955 resulting in a small conjunctival hemorrhage was also recorded, but it was noted that it was not related to his poor vision. Good light perception and separation were present. An August 1955 physical profile noted a secondary cataract and aphakia of the right eye. In January 1956, the Veteran’s service treatment records show that he complained of right eye pain. On July 26, 1957, it was noted that the Veteran’s right pupil was fixed and asymmetrical. The Veteran’s February 1960 separation examination demonstrates that he had a secondary cataract in his right eye. Right eye vision was noted as light perception only. On post-service VA examinations in July 1990 and October 1990, the Veteran was diagnosed as having a corneal leukoma and degenerative eyeball in the right eye. The claims folder contains a March 2018 VA medical opinion concerning the Veteran’s preexisting right eye disability. The medical opinion advises that there was no increase in the severity of any right eye disorder during service. Specifically, the medical opinion states that the Veteran’s service treatment records do not show a deterioration to the eyesight of his right eye after reviewing the entrance examinations and separation examinations. Further, the medical opinion demonstrates that while the Veteran underwent surgery to his right eye in August 1955, there is no documentation of post-operative complications or evidence that the surgery had a negative impact on the Veteran’s right eye, there is no history of intraocular infection or inflammation, and there is only one notation of eye pain in January 1956. The medical opinion also provides that even though the Veteran’s service treatment records show fluctuating vision, particularly from the June 1954 separation examination and August 1954 entrance examination, there was no increase in severity of any right eye disability during the Veteran’s active service and also no improvement to the Veteran’s right eye as a result of his in-service surgery. The medical opinion notes that light perception was stated prior to the Veteran’s June 1955 softball injury to his right eye that caused conjunctival hemorrhage on the nasal side and the August 1955 right eye surgery. The medical opinion provides that while the Veteran’s right eye softball injury and surgery could have caused lower vision [beyond its natural progression], there was no deterioration or improvement in his vision related to the surgery. Also, the medical opinion states that there was no evaluation to the Veteran’s right eye after his in-service softball injury and no mention of ocular complaint or treatment related to his in-service duties as a welder and solderer. The medical opinion also demonstrates that there is no evidence that the Veteran’s current right eye disability, to include phthisis bulbi and/or corneal leukoma, had its clinical onset during service or is related to any incident during service. The medical opinion notes that the Veteran was first diagnosed with phthisis bulbi with corneal leukoma more than 50 years after his separation from active service, and that such a diagnosis is an expected outcome to the Veteran’s right eye that sustained pre-service trauma that caused a shrunken traumatic cataract. Concerning the Veteran’s assertion that his right eye disability was caused or worsened during his active service as a result of his duties as a welder and solderer, the VA medical opinion states that the Veteran’s enlistment examination noted trauma and aphakia of the right eye with poor vision that preceded his active service, and that the August 1955 in-service right eye surgery advised of a 1945 right eye injury caused by being struck by a stone. In further support, the medical opinion also advises that there is no documentation of an in-service welding accident, no vision loss to the Veteran’s left eye, and no demonstration of corneal foreign body in either eye after welding, or any corneal or retinal damage. The Board finds the March 2018 VA medical opinion to be adequate and especially probative as it represents the informed conclusion of a medical professional supported by a thorough explanation and based on a review of the Veteran’s medical history and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran’s June 2013 Notice of Disagreement (NOD) includes a written statement that he sustained a right eye injury while performing his duties as a solderer. The Veteran’s January 2014 Appeal to the Board of Veterans’ Appeals (VA Form 9), indicates that the Veteran believes that he incurred his right eye disability during his active service, he underwent surgery, and now has vision loss in his right eye. While the Veteran is competent to describe an in-service injury, his statements do not provide competent evidence that his current right eye disability occurred during his active service or underwent a permanent increase in severity during service. The Veteran has not been shown to possess the requisite training or credentials needed to render a competent medical opinion as to such a complex medical question as whether his preexisting right eye disability had been permanently aggravated during his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Even to the extent that he can competently report on his own observations of his right eye and his symptoms, these contentions are outweighed by the more probative medical evidence of record, specifically that of the separation examinations in June 1954 and February 1960 and the March 2018 VA medical examiner’s opinion. Therefore, the weight of the evidence does not show that the Veteran’s preexisting right eye disability chronically increased in severity during service. Assuming that the Veteran did sustain an in-service injury to his right eye while welding, it did not result in any worsening of his pre-existing right eye disorder. In comparing his July 1952 entrance examination with his June 1954 separation examination, as well as his August 1954 entrance examination with his February 1960 separation examination, there was no indication of any change in the Veteran’s right eye vision. The March 2018 VA examiner concluded that there was no increase in the severity of any right eye disorder during service and noted that there was no demonstration of corneal foreign body in either eye after welding or any corneal or retinal damage. Thus, the evidence weighs against a finding that there was an increase in severity of the Veteran’s preexisting right eye disability during his active service, and the presumption of aggravation is not for application. The preponderance of the evidence is against the claim for entitlement to service connection for a right eye disability. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel