Citation Nr: 21061336 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-29 218 DATE: October 1, 2021 ORDER Entitlement to service connection for an eye disability, including heterotropia, a depth perception disability, and/or any other eye disability, is denied. FINDINGS OF FACT 1. The Veteran's heterotropia and reduced depth perception were noted on examination for her enlistment into service. 2. The most probative evidence of record indicates her pre-existing eye disabilities were not aggravated by her service meaning worsened beyond their natural progression and that any eye disability that conversely did not pre-date her service nevertheless is not attributable to her service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for an eye disability, including heterotropia. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from January 1996 to January 2016. This claim previously was before this Board in February 2019 and remanded back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to obtain any outstanding VA treatment records relevant to this claim and then for an examination and medical nexus opinion concerning the origins of this claimed eye disability, especially in terms of whether caused or aggravated by the Veteran's service. There since has been the required compliance, certainly acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Entitlement to service connection for heterotropia and/or another eye disability In September 2015, a few months prior to her retirement from service, the Veteran filed a claim for service connection for heterotropia. Heterotropia is strabismus, which is a deviation of the eye that the person cannot overcome. There are various forms of strabismus, which are spoken of as tropias, with their direction indicated by the appropriate prefix. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Essentially, the Veteran's eyes do not look in the same direction at the same time. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran's September 1995 Report of Medical Examination for entrance into service includes a specific notation of heterophoria meaning failure of the visual axes to remain parallel after the visual fusional stimuli have been eliminated. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). There also is a notation regarding her depth perception. A February 1996 supplemental report to that September 1995 report notes a finding of heterophoria and contains the notation of OVT (FAR). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service except as concerning 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 and (2) 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). However, if, as here, a pre-existing disability is noted upon entry in service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And, in that circumstance, 38 U.S.C. § 1153 applies and the burden falls on the claimant, not VA, to establish aggravation. Wagner, 370 F.3d at 1096. The presumption of aggravation applies only when pre-service disability increases in severity (beyond its natural progression) 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 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) (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 this case at hand, the most probative (competent and credible) evidence shows the Veteran had pre-existing eye conditions that were not aggravated by her service again, meaning worsened beyond their natural progression, if at all. Service treatment records (STRs) subsequent to the initial examination reports continue to note an irregular eye condition. For example, an April 2004 record notes the Veteran was seen to renew a waiver for flight status. She noted problems seeing far away (i.e., her distant vision), but also conceded having had astigmatism when she was little, and that she could not remember the name of the condition requiring a waiver, but that it is when her brain turns her eye off. The Veteran's astigmatism and heterotropia are refractive errors of the eye. A refractive error is a congenital or developmental abnormality that is not a disease or injury within the meaning of applicable regulation [i.e., not a compensable disability]. 38 C.F.R. § 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993). A congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45, 711 (1990). See also 38 C.F.R. § 3.303(c). But there is no such indication here. Strabismus esotropia was noted in the STRs on July 20, 2005 as "left-estropia-longstanding without depth perception" and again noted on June 6, 2007, and June 13, 2007. (Estropia/Esotropia is inward turning of the eye.) An August 29, 2011 record also notes heterotropia. A January 9, 2014 record notes strabismus non-paralytic esotropia in the left eye. As a result of the Board's February 2019 remand of this claim, also of record is a December 2020 addendum to a December 2015 Disability Benefits Questionnaire (DBQ). This examiner noted that the Veteran's September 1995 Report of Medical Examination documents that she had failed her depth perception test. This examiner considered the evidence of record and found that there is clear and unmistakable evidence that the Veteran's heterotropia (also called strabismus) and reduced depth perception (also called stereopsis) were present prior to her military service. This examiner also found no evidence the condition worsened due to the Veteran's military service because the level of condition evaluated in November 2015 (i.e., in anticipation of her retirement from the military) is consistent with the level of the condition noted earlier upon her entrance into service. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origin and/or severity of an eye disability, including in terms of whether related or attributable to anything that occurred during her time in the military and whether any condition pre-dating her service was aggravated by it meaning worsened beyond its natural progression, if at all. This determination is beyond her lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Moreover, there is no clinical opinion, based on a review of the pertinent records and with adequate rationale, which is contrary to the additional medical opinion obtained in December 2020 on remand. In short, the Veteran has failed to meet her burden of proving aggravation of her pre-existing condition because of her service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.