Citation Nr: 21029563 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-44 398 DATE: May 13, 2021 ORDER Service connection for a right eye disorder, to include exotropia, chorioretinal scar, and retinal tear is denied. FINDING OF FACT The Veteran's pre-existing right eye chorioretinitis is not presumed to have been aggravated by service. CONCLUSION OF LAW The criteria to establish service connection for a right eye disorder have not been met. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Lincoln, Nebraska Regional Office (RO). In March 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. SERVICE CONNECTION RIGHT EYE DISORDER The Veteran asserts that his pre-existing right eye chorioretinitis was aggravated by service. The claim will be denied. A veteran who served after December 31, 1946, is presumed to be 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 (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). In the Veteran's August 1966 pre-entrance medical examination report, an eye abnormality was noted. The service medical examiner noted "old chorioretinitis" and indicated that it was then-NCD (not currently disabling). The Veteran was assigned a profile designation of "2" for his eyes under the PULHES system. See generally Odiorne v. Principi, 3 Vet. App. 456, 457 (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 or physical defect which is below the level of medical fitness for retention in the military service)); also e.g., Army Regulation 40-501, December 2007 and update August 2010. In an August 1966 service treatment record, the Veteran underwent a "refraction for evaluation for induction." The service medical examiner noted non-progressive old chorioretinitis due to trauma and that the Veteran was qualified for induction. The Veteran is therefore not presumed sound at service entrance as to his right eye chorioretinitis. Under 38 U.S.C. § 1153, aggravation of a preexisting injury or disease is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, 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 C.F.R. § 3.306(b). The Veteran bears the initial burden of establishing an in-service increase in severity of the disability. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). In a November 1966 service treatment record (STR), the Veteran reported experiencing a lowered right eye from having been hit with a rock. The service medical examiner noted old chorioretinitis and that the Veteran's wearing of eyewear did not help the Veteran's right eye. A June 1967 STR reflects the Veteran's report of experiencing right eye pain. The service medical examiner indicated that the Veteran had not received glasses during service but that the right eye vision was 20/400. In his September 1968 pre-separation medical history report, the Veteran "yes" to the question of whether he then had, or once had eye trouble. In the Veteran's September 1968 pre-separation medical examination report, no eye abnormalities were noted and the Veteran was assigned a profile designation of "2" for his eyes under the PULHES system. In his October 1968 service statement of medical condition, the Veteran reported having undergone no change in his medical condition since his most-recent separation medical examination. Private treatment records dated May 2009 reflect left eye treatment and therefore are not relevant to the issue of aggravation as to the Veteran's right eye. The Veteran's VA treatment records reflect the Veteran having undergone right eye treatment but no competent opinion and/or evidence as to aggravation. In his April 2014 VA eye conditions examination, the Veteran reported having undergone right eye trauma prior to service and an additional right eye injury during service. The Veteran was diagnosed with right eye exotropia, chorioretinal scar, and retinal tear. A right eye anterior segment examination revealed an inferiorly dislocated intraocular lens (IOL) with one haptic through the pupil and into the anterior chamber. A right eye posterior segment examination revealed extensive scarring of the posterior pole with scleral buckle and associated areas of chorioretinal scarring. The retina appeared attached. The examiner indicated that the Veteran's August 1966 pre-entrance medical examination report documented 20/400 right eye vision and noted chorioretinal scarring which was consistent with the chorioretinal scarring noted during the VA examination. The examiner noted no indication of active chorioretinitis during service and that the Veteran's chorioretinal changes had been stable since his pre-service right eye trauma. The examiner indicated that the Veteran's right eye dislocated IOL was due to the trauma prior to service because it resulted in weakened zonular support. The Veteran developed a retinal detachment at some point after his cataract surgery; however, as noted above, an examination revealed that the retina was attached and the examiner indicated that it would be speculative, without the records pertaining to the retinal detachment, to opine as to the cause of the detachment but that the detachment was "most likely" related to the cataract surgery and/or pre-service trauma. The examiner also related the Veteran's exotropia to his poor vision. The VA examiner, during the April 2014 examination, opined that the Veteran's right eye disorder was not caused by service. In a March 2016 addendum, the examiner opined, having referenced the above rationale, that the Veteran's right eye disorder was not aggravated by service. The April 2014 VA examination and March 2016 addendum are highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In his March 2021 Board hearing, the Veteran testified to having undergone right eye trauma from a boxing class during service in 1967. The Veteran testified to not having sought treatment during service because his right eye "didn't really hurt" and "never did swell up." The Veteran also testified to having first noticed trouble with vision in 1970 resulting in a cataract, retinal detachment, and subsequent surgery. The Veteran is competent to report having experienced or not having experienced his observable symptoms such as no right eye pain or swelling during service as evidenced in his Board hearing testimony. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, to the extent the Veteran contends that his right eye vision trouble in 1970 that resulted in a cataract, retinal detachment, and subsequent surgery demonstrates an increase in severity of his pre-existing right eye chorioretinitis, the Veteran is not competent as a lay person to provide a medical opinion pertaining to the aggravation of his pre-existing right eye chorioretinitis. Id. A preponderance of the evidence is against a finding that that the Veteran's pre-existing right eye chorioretinitis is presumed to have been aggravated by service. The Veteran testified to not having sought treatment during service because his right eye "didn't really hurt" and "never did swell up." The Veteran is not competent as a lay person to provide a medical opinion pertaining to the aggravation of his pre-existing right eye chorioretinitis. (Continued on next page) The March 2016 VA examiner opined that the Veteran's pre-existing right eye chorioretinitis was not aggravated by service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.