Citation Nr: 21032738 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-05 240 DATE: May 27, 2021 ORDER Entitlement to service connection for glaucoma of the bilateral eyes is granted. FINDING OF FACT Glaucoma did not preexist service, and first manifested during service. CONCLUSION OF LAW Glaucoma is presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1973 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision, of the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). The appeal was remanded in May 2019 for further development. The appeal has now returned to the Board for adjudication. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system, including glaucoma, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Every veteran is presumed 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Where the presumption of soundness has initially attached, the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disease or injury was both preexisting and not aggravated by service. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), and Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). VA is not precluded from determining that the presumption of soundness is rebutted, even if there is conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) ("The clear and unmistakable evidentiary standard... does not require the absence of conflicting evidence."). A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record which provides a sufficient factual predicate to support a medical opinion (Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based on statements made by a veteran about the preservice history of the condition (Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000)). A preexisting injury or disease is considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the condition. See Wagner, 370 F.3d at 1096 (holding that when no preexisting condition noted on entry to service, government may show lack of aggravation by establishing that any increase was due to the natural progress of the preexisting condition). In addressing the aggravation prong of the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation, rather than the notion that the record contains insufficient evidence of aggravation. See Horn, 25 Vet. App. at 235. The clear and unmistakable evidentiary standard requires that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citations omitted); Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). Congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence, as a whole, shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. A congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for glaucoma. The Veteran's service treatment records document that on his November 1972 enlistment examination, he was noted to have a vision defect, however he was found to be qualified for duty. In November 1973, the Veteran sought treatment for his eyes. His visual field examination showed generalized constriction and inferior field defect. In a June 1974 Medical Board Proceeding, the Veteran was noted to have chronic bilateral glaucoma, probably juvenile type, with marked visual field constriction and a decrease in visual acuity of the left eye. The report from the proceeding noted that prior to active duty service, the Veteran had a best corrected visual acuity of 20/25 in the right eye and 20/70 in the left eye. His past medical history was noted to be essentially noncontributory. The report noted that the Veteran was treated with medication and later had a trabeculectomy done. The report concluded that the Veteran's present eye findings were congenital or developmental in nature and that he enlisted in service with these findings per the visual acuity noted on the induction physical, and that this condition would disqualify him from active duty. The Veteran's June 1974 separation examination also documented these findings. In a February 2021 VA examination, the examiner noted that the Veteran had a diagnosis of severe stage bilateral primary open-angle glaucoma. The examiner indicated that the Veteran's glaucoma did not clearly and unmistakably preexist service. In support of his opinion, the examiner explained that glaucoma was not present at the start of service due to the records that were provided and that records showed that the Veteran's eye pressure was normal at the beginning of his service and that there was no comment about visual field or optic nerve appearance, thus no causal relationship can be inferred from the data available. The February 2021 examiner also found that there is no evidence to show that glaucoma is at least as likely as not related to an in-service injury or disease. The examiner explained that serious injury to the eye may cause glaucoma, but no such injury is indicated in the Veteran's records. The examiner further explained that such an injury, such as an IED explosion would cause direct trauma that would most likely blind the veteran instead of causing a secondary glaucoma. The Board notes that the presumption of soundness applies in this case because the Veteran's enlistment examination did not note a diagnosis of glaucoma. Although a vision defect was noted on the November 1972 enlistment examination, the ophthalmoscopic section of the examination was marked as normal and no other diagnoses, including glaucoma, were noted. Nevertheless, the Board also finds that the Veteran's glaucoma did not clearly and unmistakably preexist service. As noted above, the February 2021 VA examiner indicated there was no evidence in the records to show that the Veteran had glaucoma at the beginning of service and that his eye pressure was normal at the beginning of service. The Board notes that the examiner had initially checked the box on the examination which states "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." Although this box was checked, the rationale provided by the examiner clearly indicates that glaucoma did not preexist service. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Accordingly, the Veteran's claim must be considered one for service incurrence or direct service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). As noted above, although the February 2021 VA examiner found that that there is no evidence to show that glaucoma is at least as likely as not related to an in-service injury or disease, this opinion only relates to whether glaucoma was related to any in-service injury. The evidence of record shows that the Veteran's chronic glaucoma manifest to a compensable degree during service. As glaucoma is a chronic disease subject to presumptive service connection as set forth above, the Board finds that service connection for bilateral glaucoma is warranted. 38 C.F.R. §§ 3.307, 3.309. J. NICHOLS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.