Citation Nr: 25004643 Decision Date: 04/04/25 Archive Date: 04/04/25 DOCKET NO. 14-10 106 DATE: April 4, 2025 ORDER Entitlement to service connection for a right eye disability is granted. REMANDED Entitlement to a disability rating in excess of 10 percent prior to September 21, 2023, in excess of 30 percent from September 21, 2023, to February 18, 2024, and in excess of 20 percent from February 19, 2024, for residuals, right foot, second toe fracture, is remanded. FINDING OF FACT The Veteran's preexisting right eye disability increased in severity beyond its normal progression as a result of active-duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a right eye disability have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active-duty service with the United States Navy from June 1986 to July 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's case was most recently remanded by the Board in October 2024 for additional development. The case has been returned to the Board for review. The Board notes that Attorney Zachary M. Stolz submitted a letter in February 2025 stating that his "office has concluded representation" in the Veteran's VA disability case. The record does not show that the Veteran was provided notice of the attorney's withdrawal of representation prior to recertification of this appeal. Prior to certification of an appeal to the Board, a claimant's representative may withdraw from representation before an agency of original jurisdiction at any time, "if such withdrawal would not adversely impact the claimant's interest." 38 C.F.R. §§ 14.631, 20.608(a). As it does not appear that Attorney Stolz has provided the Veteran notice of his withdrawal of representation, and the Veteran has not appointed a new representative, Attorney Stolz remains the appointed representative for the purposes of deciding this appeal. Service Connection Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for aggravation of a preexisting injury suffered or disease contracted in the line of duty. VA law provides that every veteran shall be taken 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue preexisted entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with a veteran prevailing in either event, or whether the evidence weighs persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a right eye disability is granted. The Veteran seeks entitlement to service connection for a right eye disability. The Veteran's service treatment records show that he had a preexisting right eye condition. A November 1985 Report of Medical Examination at the time of entrance notes that the Veteran had pterygium of the bilateral eyes. As such, the Board finds that the Veteran's right eye disability was noted upon entry to his period of service. Because a preexisting right eye disability was "noted" at the time of enlistment, the presumption of soundness at service entrance did not attach with regard to the preexisting disorder. 38 U.S.C. § 1111. Accordingly, given the foregoing, the Board finds that the Veteran's right eye disability clearly and unmistakably preexisted service. Therefore, the question before the Board with regard to the claimed right eye disability is whether the preexisting disorder was aggravated by active service. A preexisting injury or disease will be considered to have been aggravated by active 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). 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 U.S.C. § 1153;38 C.F.R. §§ 3.304, 3.306(b). Under certain circumstances, aggravation may be presumed. However, a preexisting disease or injury will only be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability. The mere 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, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Indeed, evidence of a disorder being asymptomatic upon entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder became worse during service and then improved due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Turning to the most relevant evidence of record, as noted above, the Veteran's service treatment records show that, upon entrance, his preexisting right eye disability was noted. The Veteran's service treatment records are replete with complaints and treatment for disability of the right eye. A September 1994 service treatment record notes that the Veteran's "eyes tire when working on a computer." An October 1996 in-service ophthalmology note reflects an indication of pinguecula. A June 1997 Report of Medical Examination at separation reflects a note of vision issues. Post-service medical records show that the Veteran underwent right eye pterygium surgeries in January 1999 and September 2005. The Board notes that the requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Evidence establishes that the Veteran did have right eye pterygium during the claim period, which is from March 2012 to the present. A December 2023 VA examination report notes that the Veteran's right eye pterygium has resolved. However, the examiner also noted that a visual examination performed on May 14, 2012, showed pterygium of both eyes. Despite resolution of his right eye pterygium, the Veteran still had a "current disability" during the claim period. Therefore, the first element is satisfied. The Board notes that the December 2023 VA examiner opined that the Veteran's right eye pterygium was less likely incurred in, or caused by an in-service injury, event, or illness. As rationale, the examiner stated that the condition had resolved. The Board finds the opinion to be inadequate, as the examiner should have provided an opinion as to the etiology of the Veteran's right eye pterygium since the condition was noted during the claim period in a May 2012 visual examination. As previously stated, the December 2023 VA examiner made note of the diagnosis established in May 2012. Furthermore, the VA examiner should have addressed whether the Veteran's current right eye pterygium clearly and unmistakably preexisted service. The VA examiner did not provide an opinion regarding the current disability of right eye pterygium shown during the claim period that satisfies the legal standard of clear and unmistakable evidence. However, as established above, the Board finds the evidence shows the Veteran's right eye disability clearly and unmistakably preexisted his active service. The Board notes that the record does not include an opinion addressing whether the preexisting right eye condition was aggravated by active service. However, based on the foregoing evidence of record, the Board finds that the evidence is at least in relative balance as to whether the Veteran's right eye disability was aggravated beyond the normal progression by active service. The Board relies on service treatment records, as cited above, which show that the Veteran complained of his eyes getting tired when working on a computer, as well as vision issues. In January 1999, the Veteran underwent right eye pterygium surgery. He underwent a second surgery in September 2005. The Board finds that the evidence shows that the Veteran's preexisting right eye pterygia was aggravated by service, requiring two surgeries after service, the first of which occurred just a little over a year after separation. Moreover, there is no clear and unmistakable evidence to show that it was not aggravated. Accordingly, aggravation of a preexisting right eye disability is established, and in accordance with 38 C.F.R. § 3.306, service connection for a right eye disability is established. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to a disability rating in excess of 10 percent prior to September 21, 2023, in excess of 30 percent from September 21, 2023, to February 18, 2024, and in excess of 20 percent from February 19, 2024, for residuals, right foot, second toe fracture, is remanded. In October 2024, the Board ordered that the Veteran be scheduled for an examination to determine the severity of his service-connected right foot disability. The Board finds that there has not been substantial compliance with the Board's October 2024 remand directives ordering a VA foot examination in compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded a VA examination for his right foot condition in November 2024. The VA examiner did not provide any range of motion findings. A new VA examination must be completed to comply with the Board's remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The matter is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected right foot disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner must address the Veteran's contentions and express the Veteran's level of disability in terms of "moderate," "moderately severe," or "severe." The examiner is asked to report the range of motion in degrees in active and passive motion, in weight-bearing and non-weight-bearing, and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In providing this opinion, the examiner should consider and discuss in their opinion the Veteran's lay statements regarding his decreased range of motion. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess any additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is also asked to offer an opinion as to whether the Veteran's range of motion and any functional loss thereof, to include during flare-ups, essentially result in total immobility of the right foot. The examiner should review the previous VA examination(s) and provide a retrospective opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 2. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.