Citation Nr: 20052926 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-02 032 DATE: August 10, 2020 ORDER Entitlement to service connection for diplopia, claimed as double vision, is granted. FINDING OF FACT The Veteran’s pre-existing diplopia was aggravated beyond its natural progression during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for diplopia, claimed as double vision, have been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to March 1967. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2018 decision, the Board denied the Veteran’s claim for entitlement to service connection for bilateral double vision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Order, pursuant to an October 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s September 2018 decision as it relates to the double vision claim and remanded for action consistent with the terms of the parties’ JMPR. The Veteran testified at a Board hearing in January 2018 before a Veterans Law Judge (VLJ). A transcript is of record. In a February 2020 letter, the Veteran was informed that the VLJ who conducted his hearing was no longer available and of his right to have another hearing with another VLJ. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran declined to appear at another hearing and noted that he wanted his case reviewed on the evidence of record. In April 2020, the Board remanded the Veteran’s claim for service connection for double vision for evidentiary development. The case has been returned to the Board for appellate review. The Board notes that a Board remand confers on the claimant, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, while the Board’s April 2020 remand directives were not substantially complied with, this decision constitutes a full grant of the claim on appeal and thus, the Veteran is not prejudiced by proceeding with a decision at this time. Entitlement to service connection for diplopia, or double vision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. The Veteran asserts that, while his eye disability may have pre-existed his period of active duty service, it was asymptomatic at the time of his enlistment into active duty and was aggravated by two incidents in service that caused him to experience double vision. Generally, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304. However, if a pre-existing injury or disease is noted upon entry into service, service connection may be granted based on in-service aggravation of that disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service if 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. Id. In such claims, the veteran has the initial burden of showing that there was an increase in severity of the pre-existing disability during service in order to attach the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If there is an increase in severity of the pre-existing disability during service, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vannerson v. West, 12 Vet. App. 254 (1999). Turning to the evidence of record, the Veteran has a current diagnosis of microtropia status post strabismus surgery for right esotropia with double vision. See November 2010 VA examination report. Additionally, the Veteran was noted to have a preexisting disability of “dif[ferent] vision (glasses used for double vision,)” on his September 1966 pre-induction Report of Medical Examination. Accordingly, the presumption of soundness is not for application. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304. Nevertheless, the presumption of aggravation may be applicable. In order for the presumption of aggravation to attach, the Veteran must show that his diplopia increased in severity during his active duty service. Prior to his induction into the military, the Veteran wrote a letter to the Selective Service System local board explaining his eye disability. See September 1966 Correspondence in service treatment records (STRs). The Veteran stated that he had eye problems from May 1954 until he had an operation in the beginning of 1963. He also reported that as a result of the operation, he experienced double vision and was instructed to perform eye exercises and prescribed glasses. In September 1966, the Veteran underwent a pre-induction medical examination, in which the Veteran was noted to have a preexisting disability of “dif[ferent] vision (glasses used for double vision)”. See September 1966 pre-induction Report of Medical Examination. In the accompanying Report of Medical History, in pertinent part, under the “have you ever had or have you now” section, the Veteran checked yes to “eye trouble” and yes to “worn glasses/contact lens” in the “have you ever” section. The Veteran also reported having a left eye operation and the examiner noted “eyes- diplopia surg. 1963.” Nevertheless, examination of the eyes was checked as normal and the Veteran’s PULHES profile was checked, indicating that he was in excellent physical health in all areas, as indicated by the “P, U, L, H, E, and S” designators. Odiorne v. Principi, 3 Vet. App. 456 (1992) ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition). Moreover, the examiner found the Veteran qualified and the Veteran began active duty service in November 1966. Thereafter the record shows that the Veteran received soon treatment for an unrelated orthopedic disorder. No complaints of double vision were mentioned or initially recorded. It was not until a February 1967 individual sick slip notes that the Veteran complained of double vision. See STRs. Whether the Veteran was physically fit for service at that time was questioned and an ophthalmology consult was requested. The February 1967 consultation report notes that the Veteran had eye muscle surgery on the left eye four years ago and now complains of dizziness, headaches, and crossed diplopia constantly. The Veteran was found to have anomalous correspondence with paradoxical diplopia. The examiner noted that the Veteran is not eligible for induction, as he has “diplopia, documented interfering with visual function,” and recommended that Veteran be medically boarded. Subsequently, the Medical Board found the Veteran medically unfit for further military service due to his anomalous correspondence with paradoxical diplopia, which was noted to be disqualifying. See February 1967 Medical Board Proceedings. The February 1967 Medical Board Separation examination report notes, under clinical evaluation of the eyes, anomalous correspondence with paradoxical diplopia. The separation examination report also notes that further duty may aggravate the Veteran’s condition. The Veteran was found to be not qualified for military service due to his anomalous correspondence with paradoxical diplopia. Finally, the Veteran’s DD Form 214 shows that he was discharged from active duty service in March 1967. In May 1988, a private examiner explained that the Veteran had a history of his right eye turning in since he was three and was treated with glasses and patches from age four to eight, without improvement. See May 1988 private examination report. The examiner noted that the Veteran underwent an eye operation in 1963 and reported double vision the day after surgery. Additionally, the examiner noted that the Veteran has had horizontal diplopia since his 1963 operation. Furthermore, the Veteran reported that he was told that he would have double vision after the surgery that would go away with rehabilitation. See May 2011 correspondence. The Veteran reported that his double vision went away in about three weeks. He also stated numerous times that his double vision went away and was not present at the time of enlistment. Id. During the January 2018 Board hearing, the Veteran testified that he underwent an operation in the early 1960’s in order to correct a muscle imbalance in his left eye. The Veteran testified that after the operation, he was given glasses with a patch in it to wear until his eye was healed. The Veteran further indicated that during the time period following his recovery from surgery up until he entered the military, he did not have any vision problems, to include experiencing double vision. In further support of his claim, the Veteran has consistently described two events during service which caused him to experience double vision. See September 2009 VA treatment record; September 2009 Statement of the Claim. First, the Veteran stated that while doing the “run, dodge and jump” obstacle course, he slipped and hit the right side of his forehead. He reports that he briefly passed out and woke up feeling dizzy and incoherent. The Veteran reports that as a result of this incident, he began to see double, although not consistently. See May 2011 correspondence; January 2018 Board hearing transcript. Additionally, the Veteran reports that he was hit in the right side of his eye during a boxing match, at which time his double vision remained constant. See id. The Board finds that the evidence of record demonstrates that the Veteran’s diplopia underwent an increase in severity while in service. The Veteran’s pre-induction examination report noted glasses for double vision and a previous eye surgery for diplopia but did not mention impaired visual function and the Veteran was determined to be qualified for service at that time. The Veteran has consistently reported two in-service events in which he experienced double vision and the Board finds the Veteran competent and credible to report such incidents. Following a complaint of double vision, the Veteran was examined and found to have anomalous correspondence with paradoxical diplopia and documented interference with visual function. Subsequently, the Medical Board ultimately concluded that his diplopia rendered him unfit for further service and he was medically discharged. The Board acknowledges that 38 U.S.C. § 1153 precludes “temporary or intermittent flare-ups” of a preexisting condition from being considered aggravation. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (quoting from Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). However, the Veteran testified that his double vision problems continued when he got out of service. See January 2018 Board hearing transcript. Additionally, as the February 1967 ophthalmology examiner and February 1967 Medical Board panel found the Veteran’s anomalous correspondence with paradoxical diplopia to be disqualifying for military service and recommended medical discharge, the evidence does not indicate that the increase in severity of the Veteran’s diplopia was a temporary or intermittent incurrence. Post service medical reports show continued treatment for double vision. As such, the Board finds that the Veteran has met his initial burden of showing that there was an increase in severity of his pre-existing diplopia during service and the presumption of aggravation attaches. See Wagner, 370 F.3d 1096 (Fed. Cir. 2004); Jensen, 19 F.3d 1413 at 1417. Accordingly, “the government [now] has the burden to rebut by clear and convincing proof that there has been no increase in the severity of the preexisting condition, thereby establishing lack of a statutory requirement, or that any increase was the result of natural progression.” Jensen, 19 F.3d 1413 at 1417. The Board acknowledges that the February 1967 Medical Board proceedings note that the Veteran’s pre-existing diplopia was not aggravated by active duty. However, the record shows that the Veteran complained of dizziness, headaches, and constant crossed diplopia during service and there is no finding or indication that the increase in the severity of the Veteran’s disability was the result of natural progression. Additionally, the February 1967 separation examination report notes that further duty may aggravate the Veteran’s eye condition, indicating the possibility that the Veteran’s diplopia could be, and could have been, aggravated by active duty service. In November 2010, the RO obtained a medical opinion regarding the Veteran’s pre-existing diplopia, or double vision. The November 2010 VA examiner found that the Veteran’s pre-service double vision was not permanently increased beyond the natural progression during military service as the Veteran’s microtropia and diplopia are secondary to pre-service strabismus surgery and have remained stable by the Veteran’s history and measurement. However, the November 2010 VA examiner appears to rely solely on the May 1988 private examination report, without addressing the Veteran’s report of in-service events or considering the medical findings in the Veteran’s STRs. Furthermore, the November 2010 VA examiner did not opine or explain if any increase in severity of the Veteran’s pre-existing diplopia was the result of natural progression. The examination report is inadequate and of no probative value. Additionally, in May 2020, the RO obtained an additional medical opinion. The May 2020 VA examiner was unable to determine whether or not there was an increase in the Veteran’s symptoms during service but did not explain why he was unable to do so. The examiner did conclude, however, that if there was an increase, it was most likely a natural progression and not related to any injury sustained while in service as the natural history of eye muscle problems causing double vision is to worsen/progress with advancing age. However, the May 2020 examiner used the wrong burden of proof, as clear and unmistakable evidence that the increase was due to natural progression is required, not a preponderance of the evidence. Additionally, the examiner did not address that the Veteran was discharged after less than four months in the military. The Board finds that the evidence of record is insufficient to rebut the presumption of aggravation, as there is not clear and unmistakable evidence (i.e., undebatable evidence) that there was no increase in severity of the Veteran’s diplopia during service, nor has clear and unmistakable evidence been presented showing that any increase was due to the natural progression of the disability. The Board emphasizes that the burden is not on the Veteran to prove that the increase in his pre-existing diplopia was the result his active duty service and not the result of natural progression. As the presumption of aggravation attached in this case, the burden to rebut is placed on the government, as it comports with the general rule that, where evidence required to prove a fact is peculiarly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward. See Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 427, 5 L.Ed.2d 428 (1961). As the government conducts both induction and separation physical examinations of military personnel, it is in the best position to have reliable medical evidence about any changes in a preexisting condition. Jensen, 19 F.3d 1413 at 1417. In conclusion, the Board finds that, while the Veteran’s diplopia pre-existed his active duty service, the Veteran met his initial burden by showing that his diplopia was asymptomatic at the time of his enlistment, or at the very least not disqualifying, and was aggravated by two incidents in service that caused him to experience not only double vision, but also interference with his visual function, which ultimately resulted in him being deemed medically unfit and discharged. As such, the presumption of aggravation attaches. See Wagner, 370 F.3d 1096 (Fed. Cir. 2004); Jensen, 19 F.3d 1413 at 1417. Additionally, clear and unmistakable evidence has not been presented to rebut the presumption. Accordingly, service connection for diplopia based on aggravation of a pre-existing disability is warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.