Citation Nr: 22060538 Decision Date: 10/27/22 Archive Date: 10/27/22 DOCKET NO. 17-42 804 DATE: October 27, 2022 ORDER Entitlement to service connection for a bilateral eye condition is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran has eye conditions that preexisted entry to active service and did not increase in severity during active service. The Veteran has diagnosed bilateral cataracts that are not a result of injury, disease, or event during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral eye condition have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1137, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1969 to March 1971 and from September 1973 to August 1975. 1. Entitlement to service connection for bilateral eye condition The Veteran has various diagnosed eye disabilities that he contends preexisted active service but became worse as a result of active service. After a thorough review of the evidence, the Board finds that entitlement to service connection for eye conditions is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption of soundness has not been rebutted and the claim will be considered as a normal claim for service connection. See Wagner, 370 F.3d at 1094 (observing that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). If service connection is granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In short, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. See id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). In the present case, the Veteran acknowledges that he had poor eyesight and eye problems prior to entering active service. See February 2021 VA examination statements. The Veteran's service treatment records (STRs) show that the October 1968 medical entrance examination noted vision of 20/400+ left eye and 20/400 right eye with other measurements noted. The Veteran's STRs also contain an August 1968 state crippled children's hospital report diagnosing exotropia in the left eye and noting that the Veteran had been a patient since 1954. On the October 1968 medical history, the Veteran wrote that he has had "trouble with the nerves from brain to my eyes. I wear glasses now and have 20-70 in my left eye and 20-60 in my right... I had an operation on my eyes and now see worse than I did before." At the August 1969 Army eye test, the examiner diagnosed left eye strabismus and amblyopia. April and June 1969 notes show complaints of headaches when the Veteran removed his eyeglasses. An August 1969 medical note also notes left eye exotropia with amblyopia. The Veteran separated in 1971 and the examination notes left eye 20/200 and right eye 20/70. The Veteran reenlisted and at the June 1973 examination, the examiner noted 20/70 right eye and 20/200 left eye with refractive errors. In Jul 1975, the Veteran complained of eye strain, but the examiner noted that the Veteran's eyeglasses were broken. At the eye test, the examiner noted history of exotropia. The Veteran had noted vision and eye problems upon entry into service. The entrance records include childhood medical eye records. Accordingly, the Board finds that the Veteran had a noted eye condition upon entry into active service and the burden therefore turns to the Veteran to show a worsening of the condition. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). At the February 2020 Board hearing, the Veteran stated that his vision is worse currently, especially at night. The Veteran mentioned a time in service when he thinks he got gun powder in his eye and stated he thought that was related to his eye problem. A June 2003 CAPRI record notes amblyopia, trace nuclear sclerotic cataracts, and presbyopia. At the February 2021 VA examination, the examiner diagnosed high hyperope in both eyes, low astigmatism in both eyes, with strabismic amblyopia of the left eye, dating to 1968. The examiner also noted diagnosed nuclear sclerotic cataracts bilaterally dating to 2003. The Veteran reported, "having poor vision since birth and being placed in eyeglasses at age two. He has worn eyeglasses all his life and the only incident he remembers affecting his eyes was following gas getting inside his mask in the gas chamber during training. The patient says his eyes burned for a month and he used a wash cloth on them, but did not seek treatment. His current symptoms are blurred vision and difficulty driving at night for which he wears eyeglasses full time." The examiner opined that the Veteran's eye conditions preexisted active service and were not aggravated thereby, "A review of this patient's E-folder including all pieces of medical evidence requested, reveals this patient was a high hyperope in both eyes, low astigmatism in both eyes with strabismic amblyopia of the left eye prior to enlistment as demonstrated on the August 1968 State Crippled Children's Service report and the October 1968 Report of Medical Examination. There are numerous examinations and reports that support these diagnoses through 2016 with only slight changes in the refraction and no loss of best corrected visual acuity over time. This slight increase in hyperopia and astigmatism over fifty-three years would be expected as naturally occurring, therefore this patient's visual problems related to high hyperopia, low astigmatism and strabismic amblyopia was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness." As for the Veteran's bilateral cataracts, "A review of this patient's E-folder reveals the first mention of a developing cataract in 2003 which is 28 years after he separated from service. The type of cataract is a nuclear sclerotic cataract which is a discoloring of the lens over time as people age and unrelated to trauma. Eighteen years after the discovery, the cataract is still not mature enough to consider removal as noted in today's examination and not limiting patient's daily activities. The cataract was less likely than not incurred in or caused by any in-service injury, event or illness." As for any direct assertions by the Veteran that there exists a medical relationship between his current eye conditions and his military service, the Board finds that such assertions do not provide persuasive evidence to support an aggravation of those preexisting eye conditions. The matter of the etiology of the cataracts, or the aggravation of the other preexisting eye conditions here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is a layperson without the appropriate training and expertise, he is not competent to render a probative opinion as to the medical matter upon which this claim turns. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007) (a layperson would be competent to diagnose a simple condition such as a broken leg, but not to diagnose a form of cancer). Here, the matter of whether the Veteran's current eye conditions that preexisted active service are in a current state that is a natural development over time, or as to the bilateral cataracts, whether that condition is etiologically related to his military service is not a matter within the realm of knowledge of a layperson; rather, such is a complex question that requires education, training and expertise. Id. Hence, the lay assertions in this regard have little probative value and the Board considers the medical evidence and opinions of greater probative value. Because the evidence shows that the Veteran had noted eye conditions that preexisted entry to service, and the evidence does not support that such conditions developed to the current state other than as natural progression, entitlement to service connection for the preexisting eye conditions must be denied. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306; Shedden, 381 F.3d at 1167. As for the bilateral cataracts, the most persuasive evidence of record shows that the condition developed several years after service and was not related to an event, disease, or injury in active service, but was a naturally occurring condition related to age and therefore entitlement to service connection is denied. 38 C.F.R. §§ 3.303. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that the currently diagnosed sleep apnea developed during active service. The AOJ obtained a VA medical opinion after the Board previously remanded this issue; however the February 2021 medical opinion is not adequate. The previous Board remand requested that the examiner consider the Veteran's and any other lay statements in their opinion. While the examiner referenced the lay statements, the examiner then stated that "based on current Board hearing transcripts, history and statements, an opinion for service connection of sleep apnea cannot be provided without resorting to speculation due to the following (1) no complaint or evidence of sleep problems while in service, (2) no sleep study or diagnosis of sleep apnea while in service." The Board finds this conclusory opinion inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). Accordingly, the AOJ should request a new medical opinion for service connection for sleep apnea. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion for sleep apnea that addresses the following: (a.) With respect to the Veteran's current sleep apnea disability, is it at least as likely as not (i.e. probability of 50 percent or more) that the disability was caused by or otherwise related to the Veteran's active service? The examiner should reference any relevant lay statements or other evidence in the medical opinion and give an adequate rationale to support the opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.