Citation Nr: 21067902 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-26 834 DATE: November 8, 2021 ORDER For the increased disability rating period prior to July 13, 2017, an increased disability rating in excess of 20 percent for service-connected degenerative joint disease of the lumbosacral spine with spinal stenosis (DJD) is denied; for the increased disability rating period from July 13, 2017, an increased disability rating in excess of 40 percent for DJD is denied. New and material evidence having been received, reopening of service connection for a left eye disorder is granted. Service connection for the left eye disorder of a left eye iris tear is granted. Service connection for the heart disorder of right bundle branch block (RBBB) is granted. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to July 13, 2017, the service connected DJD of the lumbosacral spine did not manifest as limitation of flexion of the lumbosacral spine to 30 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks. 2. From July 13, 2017, the service-connected DJD of the lumbosacral spine did not manifest as ankylosis of the lumbosacral spine or incapacitating episodes having a total duration of at least six weeks. 3. An April 1998 RO rating decision denied service connection for a left eye disorder, finding that the evidence did not support that a left eye disorder was related to service; the Veteran filed a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued in March 1999; the Veteran subsequently failed to perfect the appeal, so the April 1998 RO rating decision became final. 4. New evidence received since the April 1998 RO rating decision pertains to a finding that a currently diagnosed left eye disorder is related to an in service left eye injury. 5. The Veteran is currently diagnosed with an iris tear of the left eye and the heart blockage disorder of RBBB. 6. The left eye iris tear is due to a particle injury caused by an in-service mine explosion. 7. During service the Veteran was diagnosed with RBBB. 8. The currently diagnosed RBBB is related to the in-service diagnosis of RBBB. CONCLUSIONS OF LAW 1. Prior to July 13, 2017, the criteria for an increased disability rating in excess of 20 percent for DJD of the lumbosacral spine were not met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. From July 13, 2017, the criteria for an increased disability rating in excess of 40 percent for DJD of the lumbosacral spine have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. The April 1998 RO rating decision denying service connection for a left eye disorder became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. Evidence received since the April 1998 RO rating decision is new and material to reopen service connection for a left eye disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. It is not clear and unmistakable that the Veteran's left eye iris tear either preexisted service or did not worsen in severity in service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for the left eye disorder of a left eye iris tear have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326. 7. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for the heart blockage disorder of RBBB have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1969 to May 1971, and from August 1981 to September 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in May 2021, where the issues on appeal (other than entitlement to a TDIU) were remanded for additional development. As the Board grants service connection for the left eye disorder of a left eye iris tear and the heart blockage disorder of RBBB, no further discussion of remand compliance is necessary as to those issues. Further, as to the issue of an increased disability rating for DJD of the lumbosacral spine, review of the record reflects that the Veteran received an adequate VA back examination in August 2021; therefore, the Board finds its prior remand directives as to that issue have been satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained in the prior May 2021 Board Remand, the Veteran previously requested a hearing before the Board. The record reflects that the Veteran was informed of a scheduled June 2019 hearing in a May 2019 correspondence; however, the Veteran failed to report for such hearing and, to date, has not given a good cause for the failure to show. Additionally, the Veteran has not requested another Board hearing date. While the Veteran is currently awaiting a hearing before the Board on a different appeal stream, to date, the Veteran has not requested a post-remand hearing on this appeal stream. As such, the Veteran's request for a Board hearing as to this appeal stream is considered withdrawn. 38 C.F.R. § 20.704(d). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for the left eye disorder of a left eye iris tear and the heart blockage disorder of RBBB, and remands the issue of entitlement to a TDIU, no further discussion as to the duties to notify and assist is necessary as to those issues. As to the issue of an increased disability rating for the service-connected DJD of the lumbosacral spine, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained an adequate VA back examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. Increased Lumbosacral Spine DJD Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The General Rating Formula provides for a 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range-of-motion of the lumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine; and a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The diagnostic codes for rating spine disabilities are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. During the pendency of this appeal, various portions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. The Board has considered whether these changes could result in an increased disability rating from the effective date of the regulation changes; however, the Board does not find the February 7, 2021 amendments to be relevant to the instant decision. Significantly, the amendments do not alter the General Rating Formula or the IVDS Rating Formula, which are the primary focus of the instant rating decision. 38 C.F.R. § 4.71a (2021). A Disability Rating in Excess of 20 Percent Prior to July 13, 2017 is Denied Having reviewed all the evidence of record, lay and medical, the Board finds that, prior to July 13, 2017, the service connected DJD of the lumbosacral spine did not manifest as limitation of flexion of the lumbar spine to 30 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks. The Veteran received a VA spinal examination in March 2014. Range of motion testing showed forward flexion limited to 50 degrees, with no additional loss of range of motion on repetitive use testing. While the Veteran reported having flare ups of pain, the VA examiner did not opine as to the additional loss of range of motion during a flare-up; however, per the report from a July 2021 VA spinal examination, during a flare-up the Veteran loses an additional five degrees of forward flexion. As such, the Board finds that, at the time of the March 2014 VA spinal examination, during a flare-up of pain the Veteran's forward flexion would have been limited to approximately 45 degrees. Upon examination the Veteran had full muscle strength with no atrophy, no ankylosis, no incapacitating episodes due to IVDS, and no other neurologic abnormalities due to the back symptoms. The Board has reviewed all the relevant evidence in the Veteran's claims file, to include private and VA treatment records, during the rating period prior to July 13, 2017. Such evidence does not include range of motion testing showing forward flexion limited to 30 degrees or less, to include during a flare-up of pain, or any evidence of treatment for ankylosis of the spine (actual or functional) or incapacitating episodes. Further, the Veteran has not offered lay evidence descriptions of ankylosis (actual or functional) or incapacitating episodes during the rating period prior to July 13, 2017. After a review of all the evidence, lay and medical, the Board finds that, for the increased disability rating period prior to July 13, 2017, a disability rating in excess of 20 percent is not warranted for the service connected DJD of the lumbosacral spine. Specifically, the evidence reflects that, during the rating period prior to July 13, 2017, the service connected back disability did not manifest as limitation of flexion of the lumbosacral spine to 30 degrees or less, even during a flare-up of pain, ankylosis, or incapacitating episodes having a total duration of at least four weeks. For these reasons, the Board finds the preponderance of the evidence is against an increased disability rating in excess of 20 percent for the service connected DJD of the lumbosacral spine prior to July 13, 2017, and an increased disability rating for that rating period must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. A Disability Rating in Excess of 40 Percent from July 13, 2017 is Denied Having reviewed all the evidence of record, lay and medical, the Board finds that, from July 13, 2017, the service-connected DJD of the lumbosacral spine did not manifest as ankylosis of the lumbosacral spine or incapacitating episodes having a total duration of at least six weeks. Per the report from a July 2017 VA spinal examination, upon examination there was no ankylosis or incapacitating episodes due to IVDS. Further, the back disability symptoms did not result in additional neurological abnormalities or other disabilities, other than the left lower extremity symptoms discussed in further detail below. A new VA spinal examination was subsequently performed in July 2021. At that time the VA examiner once again found that, upon examination, there was no ankylosis or incapacitating episodes due to IVDS. Additionally, the back disability symptoms did not result in neurological abnormalities or other disabilities, other than the lower extremity symptoms discussed in further detail below. Again, the Board has reviewed all the relevant evidence in the Veteran's claims file, to include private and VA treatment records, during the rating period from July 13, 2017. Such evidence does not show treatment for ankylosis of the spine (actual or functional) or incapacitating episodes. Further, the Veteran has not offered lay evidence descriptions of ankylosis (actual or functional) or incapacitating episodes during the rating period from July 13, 2017. After a review of all the evidence, lay and medical, the Board finds that, for the rating period from July 13, 2017, a disability rating in excess of 40 percent is not warranted for the service connected DJD of the lumbosacral spine. Specifically, the evidence reflects that, from July 13, 2017, the service connected back disability did not manifest as ankylosis or incapacitating episodes having a total duration of at least six weeks. For these reasons, the Board finds the preponderance of the evidence is against an increased disability rating in excess of 40 percent for the service connected DJD of the lumbosacral spine for the period from July 13, 2017, and an increased disability rating for that period must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. Separate Compensable Disability Ratings The Board has considered whether the Veteran is entitled to separate compensable disability ratings for any objective neurologic, or other, disabilities related to the service connected DJD of the lumbosacral spine. During the course of this appeal, in a January 2018 rating decision, the RO granted a separate compensable disability rating of 20 percent for left lower extremity radiculopathy of the sciatic nerve. The Veteran subsequently appealed the initial rating assigned and the effective date of the rating, and that issue awaits a hearing before the Board in a separate appeal stream. As such, no further discussion of the left lower extremity radiculopathy of the sciatic nerve is necessary at this time. Further, in an August 2021 rating decision, the RO granted a 10 percent disability rating for left lower extremity femoral nerve radiculopathy, a 10 percent disability rating for right lower extremity femoral nerve radiculopathy, and a 10 percent disability rating for right lower extremity sciatic nerve radiculopathy, all effective July 15, 2021, the date of VA examination showing these lower extremity symptoms/disabilities. Putting aside the question of whether this constitute improper pyramiding, the Board finds that a review of the evidence of record does not support that disability ratings in excess of 10 percent are warranted for the left lower extremity femoral nerve radiculopathy, the right lower extremity femoral nerve radiculopathy, or the right lower extremity sciatic nerve radiculopathy. Further, the evidence does not support that an earlier effective date for the grant of these separate compensable disability ratings is warranted. Finally, the Board notes that review of the VA spinal examinations, along with all the other lay and medical evidence of record, conveys no diagnosis of any neurologic or other disabilities related to the service connected DJD of the lumbosacral spine, beyond the aforementioned lower extremity radiculopathy disabilities. As such, no additional separate compensable disability ratings are warranted for any additional disabilities related to the service connected back disability. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Service Connection and Reopening Law and Regulation Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Reopening of Service Connection for a Left Eye Disorder is Granted An April 1998 RO rating decision denied service connection for a left eye disorder, finding that the evidence did not support that a left eye disorder was related to service. The Veteran filed a timely NOD, and a SOC was issued in March 1999. The Veteran subsequently failed to perfect the appeal. As such, the April 1998 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. New evidence received since the April 1998 RO rating decision pertains to a finding that a currently diagnosed left eye disorder is related to an in service left eye injury. Specifically, in June 2021, a VA examiner found that a currently diagnosed left eye iris tear was related to a mine explosion during the Veteran's first period of active duty service. The Board finds such evidence to be new and material to warrant reopening of the issue of service connection for a left eye disorder. 3. Service Connection for a Left Eye Iris Tear is Granted 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, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. In explaining the meaning of an increase in disability, the United States Court of Appeals for Veterans Claims (Court) has held that "temporary or intermittent flare ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Where a disability is not "noted" at service entrance, a veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness; rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. In its May 2021 Remand, the Board found that the Veteran's June 1969 service entrance examination records were negative for an eye disorder at service entrance; therefore, the presumption of soundness attaches and rebutting the presumption of soundness requires clear and unmistakable evidence both A) that the disease or injury existed prior to service and B) that the preexisting disease or injury was not aggravated by service. Having reviewed the evidence of record, the Board does not find that it is clear and unmistakable that the Veteran's left eye iris tear either preexisted service or did not worsen in severity in service. While it is true that the service treatment records from the Veteran's first period of service note a history of a blow to the left eye prior to service, multiple service treatment records from the Veteran's second period of service attribute the Veteran's left eye disability symptoms to one or more in-service left eye injuries. As the Veteran's eyes were noted as normal at entrance into the first period of active service, as the Veteran sought treatment for a left eye disorder during the second period of active service, and as multiple in-service physicians attributed the left eye symptoms to one or more in-service injuries, it cannot be said that it is clear and unmistakable that the Veteran's left eye iris tear either preexisted service or did not worsen in severity in service. When the presumption of soundness is not rebutted, as in this case, the case converts to one for direct service connection. See Wagner at 1096. Throughout the course of this appeal, the Veteran has argued that a currently diagnosed left eye disorder is related to a particle injury due to an in-service mine explosion on or about 1970. Per a June 2021 VA eye examination, the Veteran is currently diagnosed with a left eye iris tear. Having reviewed all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's left eye iris tear is related to an in-service particle injury caused by an in-service mine explosion. Service treatment records from the Veterans' first period of service do not specifically note an in-service mine injury on or about 1970; however, the service treatment records do reflect that on or about July 1970 the Veteran sought treatment for eye pain. Multiple service treatment records from the Veteran's second period of service note a history of in-service trauma to the left eye. Significantly, per the doctor's notes from a February 1990 Report of Medical History, it was noted that the Veteran's eye was damaged by a back blast from a Claymore mine in 1970. Per the report from a May 1998 VA eye examination, at the conclusion of the examination the VA examiner diagnosed the Veteran with a "mine explosion particle injury, both eyes, with residual of left iridodialysis and irregular nonreactive pupil." In other words, the VA examiner found that the Veteran had a left eye disorder that was related to an in-service particle injury from a mine explosion. Further, in June 2021 a VA examiner also opined that the Veteran's left eye iris tear was due to an in-service mine explosion in 1970. In sum, service treatment records from the Veteran's second period of active service attribute the currently diagnosed left eye iris tear to an in-service particle injury from a mine explosion, and two VA examiners, one in 1998 and one in 2021, have also attributed the left eye iris tear to an in-service particle injury from a mine explosion. As this matter has become a question of direct service connection, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for the left eye disorder of a left eye iris tear is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that in the report from the June 2021 VA eye examination, the Veteran was also diagnosed with bilateral nuclear cataracts. Per the corresponding opinion report, the VA examiner found it less likely than not that the cataracts were related to service. Rather, the cataracts were specifically found to be an age-related type. There is no evidence of record to the contrary. Further, there is no evidence to support that the left eye cataracts were caused or aggravated by the now service connected left eye iris tear. For these reasons, the Board finds that service connection for the left eye disorder of nuclear cataracts is not warranted. 4. Service Connection for the Heart Blockage Disorder of RBBB is Granted The Veteran contends that a currently diagnosed heart disorder is related to service. At the outset, the Board notes that a VA examiner in November 2017 diagnosed the Veteran with a heart blockage disorder. Specifically, the VA examiner diagnosed a right bundle branch block (RBBB). Next, the Board finds that during service the Veteran was diagnosed with RBBB. Per the report from a February 1990 in-service examination, the Veteran was diagnosed with RBBB following an electrocardiogram (EKG). Finally, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed heart blockage disorder of RBBB is related to the in-service diagnosis of RBBB. Per the report from an October 1994 Army National Guard periodic examination, the Veteran was again diagnosed with RBBB. Upon undergoing a VA general medical examination in May 1998, the Veteran was reported to have stable RBBB. The Veteran received VA heart examinations in November 2017 and July 2021. While the VA examiners did not specifically opine as to whether the currently diagnosed RBBB was related to the RBBB diagnosed during the Veteran's second period of service, in each examination report the VA examiners noted that the currently diagnosed RBBB first manifested/had its onset during the Veteran's second period of active duty, on or about 1990-1992. In sum, the evidence of record reflects that the Veteran is currently diagnosed with the heart blockage disorder of RBBB, and that during service the Veteran was diagnosed with RBBB upon EKG. Two VA examiners have effectively opined that the currently diagnosed RBBB is related to the RBBB diagnosed in service. As such, resolving all reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection for the heart blockage disorder of RBBB have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 5. TDIU is Remanded During the course of this appeal, to include in testimony at a February 2020 Decision Review Officer (DRO) hearing, the Veteran has advanced being unable to work due to back disability symptoms. As such, the Board finds that the issue of entitlement to a TDIU has been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to a TDIU has not previously been addressed, the Board remands the issue to the Agency of Original Jurisdiction (AOJ) for initial adjudication. (Continued on the next page) The aforementioned matter is REMANDED for the following action: After any additional notification and/or development deemed warranted, to include a request that the Veteran complete and submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), adjudicate the issue of entitlement to a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.