Citation Nr: 22016011 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 06-20 064 DATE: March 21, 2022 ORDER Service connection for diplopia (double vision) is granted. FINDINGS OF FACT 1. Diplopia that the Veteran experiences has been capable of improving or deteriorating. 2. The Veteran was not noted to have recurrent or chronic diplopia when he was examined and accepted for service. 3. The Veteran experienced increased symptoms of diplopia during service and continued to experience diplopia after service. CONCLUSIONS OF LAW 1. For VA claims purposes, the Veteran's diplopia is most appropriately considered a disease, rather than a developmental defect. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for diplopia have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1977 to September 1997. The Veteran's claim for service connection for a vision disability has a long procedural history. In an October 1997 claim, he sought service connection for multiple disorders, including vision loss. In a June 1998 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for vision loss. In October 2004 the Veteran requested to reopen the previously denied claim for service connection for a vision disorder. In a January 2005 rating decision, the RO confirmed and continued the previous denial of service connection for vision loss, including double vision. The Veteran appealed that denial to the Board of Veterans' Appeals (Board). In August 2010 the Board remanded multiple issues, including the request to reopen a claim for service connection for vision loss, to the RO to develop additional evidence. In a January 2013 decision, the Board granted reopening of a claim for service connection for vision loss. The Board remanded that reopened claim to the RO to develop additional evidence. In a February 2014 decision, the Board denied service connection for the Veteran's vision disability. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a November 2015 memorandum decision, the Court set aside the Board's February 2014 decision and remanded the matter to the Board for further proceedings. In April 2016 the Board remanded the matter to the RO to develop additional evidence. In a February 2017 decision, the Board denied service connection for a vision disorder. The Veteran appealed that denial to the Court. In a July 2018 memorandum decision, the Court set aside the Board's February 2017 decision and remanded the matter to the Board for further development. In February 2019, the Board remanded the matter to the RO to develop additional evidence. In a July 2020 decision, the Board denied service connection for vision disability including diplopia. The Veteran appealed that denial to the Court. In an August 2021 memorandum decision, the Court set aside the Board's July 2020 decision and remanded the matter to the Board for further development. 1. Service connection for diplopia The Veteran contends that one or more of his vision disorders, including diplopia and exotropia (eye misalignment to the outside), were aggravated during his service. He acknowledges that eye misalignment was noted during his childhood. He contends that, whatever the status of his eyes and vision at entrance to service, his vision problems worsened in service. He attributes the worsening to having to read documents in inadequate lighting aboard ships. He indicates that earlier in his service he experienced diplopia only briefly and occasionally but later in his service he experienced more frequent and prolonged diplopia. He relates that during and after service his increasingly persistent diplopia has interfered with his ability to perform some tasks, including driving a vehicle. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable (obvious or manifest) evidence demonstrates that the disability existed prior to service and was not aggravated by 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). When there is a preexisting injury or disease, it will be considered to have been aggravated by service when 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), the Court explained that, when no preexisting condition is noted upon entry into service, the burden falls on VA to rebut the presumption of soundness, which requires both clear and unmistakable evidence that an injury or disease existed before service and clear and unmistakable evidence that an injury or disease was not aggravated by service. The Court further stated that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness." Horn at 235. In such cases, the Court explained, the burden is on VA to establish by clear and unmistakable evidence that the disability did not increase in severity during service, or to establish by clear and unmistakable evidence that any increase in severity during service was due to the natural progress of the disease. See Horn at 235. In considering whether disabilities that were noted during a veteran's service existed before entrance to service, VA regulations provide that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof). When, in accordance with these principles, existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. 38 C.F.R. § 3.303(c). Consequently, with notation or discovery during service of some residual conditions (such as scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.), with no evidence of the pertinent antecedent active disease or injury during service, the conclusion must be that they preexisted service. Id. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period, will establish preservice existence thereof. Id. Congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. Id. VA statutes and a VA General Counsel opinion indicate that service connection may be granted for a congenital or developmental defect that existed before service, but that was aggravated in service, if that defect was subjected to a superimposed disease or injury which created additional disability. 38 U.S.C. §§ 1110, 1131; VAOPGCPREC 82-90 (July 18, 1990). In Quirin v. Shinseki, 22 Vet. App. 390, (2009), the Court noted that VAOPGCPREC 82-90 explains that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Quirin, 22 Vet. App. at 394 (quoting VAOPGCPREC 82-90). At entrance to service in 1977, the Veteran was found to have refractive error in each eye. During service, he was noted to have diplopia and exotropia. He is seeking service connection for his diplopia and exotropia. The question as to whether his diplopia and exotropia existed before his service is significant to his service connection claim. The related question as to whether his diplopia and exotropia are best considered to be congenital defects, developmental defects, or diseases, also is significant to the claim. An additional question that is significant to the claim is whether his diplopia and exotropia, if they existed before his service, were aggravated during his service. The service treatment records (STR) in the Veteran's claims file include dental treatment records from 1977 forward. As to records addressing medical (nondental) conditions, the file contains records from 1983 through 1997, but not from 1977 to 1982. An examination report from April 1983 indicates that the purpose of examination then was replacement of health records. However, service personnel records (SPR) that were added to the Veteran's claims file in December 2021 include a copy of the Veteran's September 1977 service entrance examination. On the Veteran's September 1977 service entrance examination, the Veteran marked no for history of eye trouble. He marked yes for wearing glasses or contact lenses. The examiner tested the Veteran's vision and found refractive errors in each eye. The examiner found that the refractive errors were correctable to normal or near normal. The examiner described the Veteran's vision as tested as defective. The examiner did not discuss whether there were any issues involving the alignment of the Veteran's eyes. For ocular motility, with consideration of associated parallel movements or nystagmus (movement of an eye out of alignment), the examiner marked normal. The Veteran's SPR contain performance evaluation reports with favorable assessments of his performance in 1982 to 1988 of his duties in security work, and, later in his service, in administrative work. On examination in August 1984, the Veteran marked no for history of eye trouble. The examiner found bilateral refractive error that was corrected to normal vision. The examiner marked normal for ocular motility. On examination in October 1988, the Veteran marked that he did not know if he had history of eye trouble. The examiner noted that the Veteran's left eye had a lateral deviation on fixed forward gaze. The examiner indicated that the deviation was consistent with congenital exotropia. The examiner found refractive errors and did not find any other vision defect. In March 1989, the Veteran had an optometry examination after he lost his glasses. He reported a childhood history of lazy eye, treated with a patch. He stated that presently his depth perception felt off. He indicated that without glasses the vision in his left eye was blurred. He related having slight diplopia without glasses. The clinician determined the Veteran's eyeglass prescription and recommended follow-up regarding the diplopia. On examination in April 1989, the Veteran expressed uncertainty as to eye problems. The examiner noted left eye exotropia. In a July 1989 optometry visit, the clinician noted the lazy eye history and present diplopia noted in recent visits. The Veteran reported that, even with glasses, he could not pass the test for a driver's license. He related double vision and difficulty compensating for depth when driving. The clinician found amblyopia (worse focus in one eye), with the worse focus in the left eye. The clinician referred the Veteran for further evaluation of his decreased vision, with consideration of changes to either further dissociate his eyes or to correct his diplopia. Later in July 1989, the Veteran had an ophthalmology consultation. The Veteran reported that at age seven deviation of his eye was noted. He stated that he was treated with patching and glasses. He reported present difficulty driving, with an occasional tendency to wander into the left lane. He reported occasional double vision, with horizontal image separation. The clinician found anopsia (partial vision suppression) in the left eye. The clinician's impression was mild amblyopia. In October 1989 the Veteran had another consultation about his vision. He stated that his horizontal diplopia interfered with his ability to perform his duties in security. The clinician observed constant exotropia with a vertical component. The clinician agreed with the July 1989 finding that the Veteran had difficulty suppressing the disordered eye, and that this resulted in diplopia. The clinician validated the Veteran's concern that his diplopia interfered with security work. The cover sheet from a December 1989 medical board report listed for the Veteran a primary diagnosis of left eye amblyopia ex anopsia (suppression of the vision in one eye, including due to misalignment), a second diagnosis of bilateral refractive error, and a third diagnosis of left exotropia with associated hyperdeviation (a type of misalignment). On a December 1989 form, the Veteran acknowledged that in December 1989 a medical board recommended that he be discharged due to physical disability that existed before service and was not aggravated by service. The Veteran indicated that he wanted to submit a rebuttal. In February 1990, a service medical corps officer wrote to a United States Senator, responding to an inquiry into the Veteran's case. The officer wrote that in July 1989 the Veteran reported that double vision prevented him from doing his current job. The officer stated that the Veteran's longstanding eye misalignment appeared to have existed before he entered service. The officer noted that, despite eye problems, the Veteran had functioned adequately in service for twelve years. The officer stated that a medical board was performed in November 1989 but was found to have procedural error. The officer reported that a new medical board was completed in December 1989. The officer stated that the December board concluded that the Veteran's conditions existed before service and were not aggravated in service. The officer stated that the Veteran submitted a rebuttal and that the board confirmed the recommendation. The officer informed the Senator of pending appeal processes. The officer explained that the present process did not address possible reassignments to different duties. In an October 1990 treatment visit, the clinician noted that the Veteran had amblyopia. On examination in May 1995, the Veteran marked yes for history of eye trouble. The examiner noted that the Veteran had congenital diplopia and amblyopia. The examiner noted that in 1990 a physical evaluation board found that the Veteran was fit for full duty. The examiner found that the Veteran's left eye had decreased visual acuity even with correction. On his separation examination in April 1997, the Veteran marked yes for history of eye trouble. The examiner noted that the Veteran had exotropia of the left eye. Later in April 1997, a clinician found that the Veteran had increased intraocular pressure. After service, in June 1998 the Veteran had a VA eye disorders examination, which was performed by private ophthalmologist M. P. C., M.D. The Veteran reported that, when he was about seven years old, his grandmother intermittently patched his eyes to try to address apparent alignment and motility issues in his left eye. He indicated that since childhood he had fixated his vision intermittently between one eye or the other, primarily using his right eye. He stated that he saw two images some of the time and one image the rest of the time. Dr. C. found a constant left exotropia. She observed the Veteran fixating his vision to his right eye. Dr. C. expressed the opinion that the Veteran's exotropia probably had always made him only able to use one eye at a time. Dr. C. indicated that the disorder caused the Veteran to have no depth perception and to have occasional diplopia. Dr. C. opined that, considering the Veteran's visual disorder, he certainly should not drive, and he should not operate heavy machinery. In a July 1998 statement, the Veteran contended that his eye disorders worsened while he was in service. In a January 2006 statement, the Veteran wrote that during service he had to read documents in conditions of inadequate lighting. He contended that working in adverse lighting conditions contributed to the worsening of his vision. On VA examination in April 2013, the Veteran reported that he had strabismus (misalignment of the eyes), diplopia, and amblyopia during childhood and when he entered service. He indicated that during service he experienced increasing difficulties due to those conditions. The examiner observed left exotropia and evidence of diplopia with several different eye positions. The examiner expressed the opinion that the Veteran's exotropia and resulting diplopia existed in service and was not aggravated beyond its natural progression during service. In a May 2013 statement, the Veteran reasserted that eye disorders present during his service were aggravated during his service. He reiterated that during service he had to read documents in conditions of inadequate lighting. He noted that, as of the VA examination in June 1998, less than a year after his separation, his exotropia and diplopia made him unable to drive. He disputed that he could suppress his diplopia. He stated that presently his diplopia was constant and extremely vexing. In a December 2014 brief to the Court, the Veteran asserted that the diplopia caused by his exotropia had worsened over time. He argued that his diplopia, therefore, was more appropriately considered a disease than a defect. In an October 2017 brief to the Court, the Veteran reiterated that argument. In May 2016, the VA optometrist who examined the Veteran in April 2013 provided an addendum opinion. The examiner expressed the opinion that the Veteran's exotropia was a developmental condition and not a congenital condition. The examiner wrote that exotropia could change, but that exotropia was more likely to be fairly stationary than to progress over time. In the July 2018 memorandum decision, the Court noted that the VA examiner's May 2016 addendum opinion did not address the Veteran's report that his diplopia changed from intermittent to constant. The Court found that the addendum opinion therefore did not adequately address whether his diplopia was changeable, and more like a disease, or more fixed, and more like a defect. In an October 2019 VA addendum opinion, a reviewing optometrist expressed the opinion that the Veteran's exotropia was better defined as a developmental defect than as a disease. The reviewer went on to indicate that disorder was a better term than defect. The reviewer stated that exotropia can increase over time, but typically increases due to some event, and not simply due to progression over time. In the August 2021 memorandum decision, the Court noted that the October 2019 VA reviewer discussed the Veteran's exotropia but did not address the Veteran's reports of increasingly persistent diplopia. The Court found that the October 2019 opinion did not address whether the diplopia was changeable and thus more like a disease, or fixed and thus more like a defect. There is a general consensus of medical opinion that the Veteran's exotropia, or misalignment of the eye, should not significantly change and should be considered a developmental defect, which is not eligible for service connection. However, the evidence shows the Veteran's visual condition changed during service and after. The question remains as to whether the Veteran's diplopia should be considered a disease or a defect. Such question turns on whether diplopia is capable of improving or deteriorating, like a disease, or is more or less stationary, like a defect. The Veteran reports that his diplopia became more persistent and disabling over time and thus produced deterioration of his visual functioning. His July 1998 report of worsening during service was based on fresh recollections, as it followed soon after his September 1977 separation from service. Records from his service are consistent with deterioration. Records from 1977 through 1988 do not reflect any effect of diplopia on the Veteran's functioning. Records from 1989 forward contain indications that diplopia interfered with driving and with his duties in security. VA clinicians who have provided opinions regarding the case have not opined as to whether diplopia is capable of improving or deteriorating. There is evidence that the Veteran's disability due to diplopia did worsen, and therefore could worsen. The record does not contain findings or opinions that diplopia is stationary rather than capable of change in severity. The evidence at least equivocally indicates that diplopia can improve or worsen. Therefore, for purposes of considering the service connection claim, the Veteran's diplopia is better considered as a disease, and not as a developmental defect. When the Veteran's diplopia is considered as a disease, the presumption of soundness applies to his claim for service connection for that condition. The report of his September 1977 separation examination contains a notation of refractive error but does not contain notation of any eye alignment disorder, eye motility disorder, or diplopia. It must be presumed, then, that the Veteran did not have recurrent or chronic diplopia when he entered service. The burden falls on VA to rebut the presumption of soundness. Rebutting the presumption requires both clear and unmistakable evidence that his diplopia existed before service and clear and unmistakable evidence that his diplopia was not aggravated by service. Statements from the Veteran provide evidence that he experienced diplopia before service. It is not necessary, though, to determine whether the evidence that he had diplopia before service is clear and unmistakable, because the evidence that his diplopia was not aggravated by service is not clear and unmistakable. The Veteran's service records do not reflect any difficulty performing duties in 1977 through 1988. In 1989, the Veteran reported that diplopia impeded him in some tasks. Records and correspondence reflect that the service department held proceedings to consider whether eye disorders made the Veteran unfit for duty. The Veteran is in a position to report, and to later recall, the frequency and duration of episodes of diplopia he experienced before, during, and after service. In July 1998, soon after separation from service, the Veteran indicated that his eye problems, including diplopia, worsened during service. When weighed with the evidence that tends to indicate aggravation in service, the evidence against aggravation in service does not rise to the level of clear and unmistakable. Consequently, the evidence is insufficient to rebut the presumption that the Veteran did not have recurrent or chronic diplopia when he entered service. The Veteran's STR contain considerable and convincing evidence that he experienced diplopia during service. Post-service records reflect continuation of diplopia after service. The Board concludes that the Veteran is entitled to a finding of service connection for his diplopia. A.P. Armstrong Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kunz, Kirsten 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.