Citation Nr: 21026688 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-22 903 DATE: May 3, 2021 REMANDED Entitlement to service connection for bilateral eye disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 1967 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in September 2019, at which time it was denied. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand (JMR), the parties agreed that the Board erroneously relied on an inadequate VA medical opinion that failed to discuss all of the evidence and improperly relied on a lack of records of any in service injury, event, or illness. The parties also agreed that the Board erred by not providing a complete finding of whether there is clear and unmistakable evidence that the Veteran's eye disabilities preexisted service to rebut the presumption of soundness. The Court then vacated the decision and remanded for further development. 1. Entitlement to service connection for bilateral eye disability is remanded. The Veteran contends that his pre-existing eye condition was aggravated and made permanently worse by service along with the overprescribed strength of his military-issued glasses, causing deterioration in his vision. At a February 2019 hearing, the Veteran testified that he had prescription glasses prior to service; however, instead of recommending a new prescription, the service threw his glasses away and gave him a new pair. The Veteran further stated that the new glasses made his vision worse and caused him headaches and high blood pressure. The Veteran maintains that this is supported by the fact that his induction examination does not indicate any physical defects or diseases, finding him acceptable for the armed forces. In the JMR, the parties agreed that the previous VA audiological opinions were inadequate because they failed to discuss the significance of the change in the Veteran's PUHLES scores from November 1966 to July 1967. The initial determination is whether the Veteran's eye disorder was present prior to service. The Court has indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. Crowe v. Brown, 7 Vet. App. 238 (1994). The Court added that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). In this case, the record evidence does not include an entrance medical examination. A November 1966 induction examination that found the Veteran acceptable for induction into the armed forces notes that there were no defects or diseases reported by the Veteran. The induction examination specifies, however, that a physical inspection and not a complete medical examination was conducted. A January 2013 private treatment record states that the Veteran was found to have a congenital defect in which both optic nerves did not fully develop. A July 2015 VA treatment record shows that the Veteran was diagnosed as having amblyope that was developmental and congenital. Finally, a March 2019 VA treatment record contains a diagnosis of oculocutaneous albinism, likely tyrosinase positive, which is a genetic disorder. That record also indicated that the Veteran's nystagmus was congenital and that he also had mild transillumination defects. As noted above, both nystagmus and amblyopia were diagnosed when the Veteran was evaluated as part of the medical board report in July 1967. In light of the foregoing, the Board finds that a new medical opinion addressing the evidence of record must be obtained. The matters are REMANDED for the following action: 1. Obtain an opinion to address whether the Veteran's eye disorders are related to service. The Board leaves it to the discretion of the clinician who offers the opinion to determine whether the Veteran needs another examination. Following review of the complete electronic file, including the Veteran's testimony at the February 2019 Board hearing, the examiner is asked to address the following for each of the Veteran's eye conditions: (a.) Is the Veteran's eye condition considered a congenital defect or congenital disease? For VA purposes, a defect is a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a disease is capable of improvement or deterioration. (b.) If the Veteran's eye condition is a congenital defect, is it at least as likely as not (i.e., a 50 percent or greater probability) subject to a superimposed disease or injury during military service that resulted in additional disability apart from the congenital or developmental defect? The examiner should note the Veteran's description of his injury in his testimony at the February 2019 Board hearing, a transcript of which is attached to the file. (c.) If the Veteran's eye condition is a congenital disease, does the evidence show it was aggravated (worsened) by the Veteran's military service? If there was worsening, was this due to the natural progress of the disease? (d.) If the Veteran's eye condition is not congenital in nature, did it clearly and unmistakably preexist his active duty military service? Consider that there is no Report of Medical Examination in the Veteran's file. If there is clear and unmistakable evidence that such a disorder preexisted service, please identify the evidence. (e.) If the answer to question (d) is "yes," is there also clear and unmistakable evidence that the eye condition was NOT aggravated beyond its natural progress during service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the preexisting condition. (f.) If the answer to either question (d) or (e) is "no," assume as true that the Veteran did not enter service with the disability. With this assumption in mind, is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's right testicle disorder had its onset in service, or is otherwise related to active service? The examiner is directed to consider and explain the significance of the difference in PUHLES scores from the Veteran's November 1966 induction evaluation (PULHES score of "2") to his July 1967 medical board examination (PULHES score of "4"). A complete rationale should be provided for all opinions expressed and conclusions reached. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals J. Morgan, Attorney for the Board Department of Veterans Affairs 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.