Citation Nr: 21005014 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-05 830A DATE: January 28, 2021 REMANDED Entitlement to service connection for a vision disability, to include myopia, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1951 to November 1953. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board issued a decision denying this claim, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In an August 2020 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the Board’s decision denying this claim and remanding this claim back to the Board for action consistent with agreement in the Joint Motion. The parties had agreed that the Board had provided an inadequate statement of reasons and bases for denying service connection. To comply with the Court’s Order, the Board, in turn, is remanding this claim back to the agency of original jurisdiction (AOJ), i.e., RO.   Entitlement to service connection for a vision disability, to include myopia, is remanded. The Veteran contends that his vision disability, specifically myopia, was made chronically worse by his active duty service. As the Board previously indicated when adjudicating this claim, it is well documented throughout the medical evidence of record that he had myopia prior to service and continues to have it, in fact, now to the point that he is legally blind, so for all intents and purposes unfortunately has lost his eyesight. 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 into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). If a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on the claimant, not VA, to establish aggravation. Wagner, 370 F.3d at 1096. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).   The presumption of aggravation applies only when pre-service disability increases in severity during service, although the degree of worsening may not be enough to warrant compensation. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service based on 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) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability); Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994) (“temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.”). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a), (b). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe, 7 Vet. App. at 245 (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby, 1 Vet. App. at 227)). But service connection is not permissible for congenital or developmental defects such as refractive errors of the eye (which myopia is) since they are not disabilities under the law, unless there has been a superimposed injury or disease that aggravates the underlying defect. See 38 C.F.R. §§ 3.303(c), 4.9. See also VAOPGCPREC 82-90 (July 18, 1990). During his October 1951 military entrance examination, it was noted the Veteran had myopia (nearsightedness); however, as his vision could be corrected with glasses, it was not found to be disqualifying from entering service. It was noted that he had 20/400 vision in his left eye, which was corrected to 20/20 with glasses. He also had 20/400 vision in his right eye, which was corrected to 20/40 with glasses. The report of the Veteran’s November 1953 separation examination shows he stated he could not see “any objects close at hand (including visual chart) without glasses. However, the examiner noted that, with glasses, the Veteran had 20/20 vision in both eyes, so bilaterally. In the August 2020 Joint Motion vacating the Board’s prior decision denying this clam, the parties agreed that the Board had improperly relied on its own medical judgment when determining that the Veteran’s vision disability was not aggravated beyond its natural progression during his service. In this regard, the Board found in its October 2019 decision that his myopia had pre-dated his military service and underwent no appreciable increase in severity during his service due to any superimposed injury or disease. The parties agreed that remand was required for the Board to provide a VA examination determining whether the changes in the Veteran’s vision between his entrance into service and later separation were within the realm of natural progression of his condition.   Accordingly, to this end, this claim is REMANDED for the following action: Obtain medical comment from an appropriate clinician concerning whether the Veteran’s myopia, which was noted during this military enlistment examination as a pre-existing condition, was aggravated by his service – meaning permanently worsened beyond its normal progression. To assist in making this important determination, the examiner should consider the Veteran’s visual acuity at the time he was examined for acceptance into service in comparison to his visual acuity when later examined for separation from service. Thus, the claims file, including a complete copy of this remand and the Joint Motion, must be made available to and reviewed by the examiner. If the examiner concludes the requested opinion cannot be rendered without resorting to mere speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training) or whatever other reason precludes a sufficiently definitive response.   Clear rationale for the opinion is essential, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.