Citation Nr: 22003306 Decision Date: 01/21/22 Archive Date: 01/21/22 DOCKET NO. 19-28 991A DATE: January 21, 2022 REMANDED Entitlement to service connection for bilateral open angle glaucoma is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran had active service from December 1961 to April 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran appeared before the Board for a videoconference hearing. The transcript has been associated with the record. 1. Entitlement to service connection for bilateral open angle glaucoma is remanded. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). For service connection claims involving a preexisting injury or disease, 38 U.S.C. § 1153 provides that a preexisting injury or disease will be 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 is due to the natural progress of the disease. 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). On the Veteran's December 1961 enlistment examination, it was noted that he had amblyopia. In the enlistment report of medical history, the Veteran noted that he had eye trouble and that he had worn glasses for the past three years. During service, the Veteran was seen for eye problems multiple times. In March 1962, the Veteran was diagnosed with compound myopic astigmatism and myopia. In May 1964, the record indicated that the Veteran had amblyopia and compound myopic astigmatism and the Veteran complained that he felt his eyes had become worse since entering military service. The Veteran was afforded a VA eye examination where the examiner claimed that the Veteran's glaucoma was less likely as not incurred in or caused by military service. The examiner claimed that the Veteran had refractive error correctable to 20/20 vision at discharge and that there were no findings of a diagnosis or treatment of glaucoma during military service. During the June 2021 Board hearing, the Veteran testified that the exposure to all the dust during military service caused his glaucoma. The Board finds that the Veteran had a pre-existing eye disability and that a remand is necessary to obtain an adequate medical opinion that addresses whether his eye disability had aggravated during military service. 2. Entitlement to service connection for hypertension is remanded. In light of the decision issued by the United States Court of Appeals for the Federal Circuit in Procopio v. Wilkie, 913 F.3d. 1371 (2019) and the enactment of 38 U.S.C. § 1116A it is unclear whether the Veteran served within the 12 nautical miles of the Republic of Vietnam and if the presumption of service connection for veterans who served offshore of the Republic of Vietnam is applicable. The Veteran asserts that service connection is warranted for hypertension due to his in-service exposure to Agent Orange while he was aboard a ship that traveled to Vietnam. He also alleged that he was exposed to herbicides when he was moving dead bodies that had been exposed. The Board acknowledges that the RO denied service connection for his hypertension. However, the Board finds that the record does not show if the RO determined if the Veteran served within 12 nautical mile territorial sea of the Republic of Vietnam. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the term "Service in the Republic of Vietnam" includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to herbicide agents (Agent Orange) under 38 U.S.C. § 1116, so long as they meet the sections other requirements. See Procopio v. Wilkie, 913 F.3d. 1371 (2019) and see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 ). Thus, in light of Procopio and the Blue Water Act, a remand is necessary to determine if the Veteran had any service on any ships in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietname during his service. By this remand, the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA addendum opinion concerning his eye disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Did the Veteran's eye disability, which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the aggravation of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Make all appropriate efforts, to include contacting all appropriate official sources, to include the National Personnel Records Center (NPRC), and/or the Joint Services Records Research Center (JSRRC), to determine if the Veteran served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam while serving in the United States Navy from December 1961 to April 1966. 3. If and only if the above development reflects that the Veteran meets the requirements of the presumption of herbicide exposure, schedule a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to the Veteran's exposure to herbicide agents. Whether a physical examination is necessary is up to the discretion of the VA examiner. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.