Citation Nr: 1314707 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-21 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left eye disorder, to include amblyopia and esophoria. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2010, the Veteran testified at a hearing before the undersigned at the RO. A transcript of the hearing has been associated with the Veteran's claims file. This appeal was previously before the Board in June 2012, at which time the Board determined that new and material had been submitted to reopen the claim of entitlement to service connection for a left eye disability, to include amblyopia and esophoria. The issue (on the merits) was then remanded for additional development. The appeal is again REMANDED to the AOJ via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, further evidentiary development is necessary. Specifically, the Board finds that this matter must be remanded to obtain an adequate medical opinion. In June 2012, the Board remanded this appeal to obtain a VA examination and opinion regarding the etiology of the Veteran's claimed left eye disorder. Specifically, the examiner was requested to provide an opinion for any diagnosed esophoria, as well as an opinion for any diagnosed left eye disabilities identified other than left eye esophoria. With regard to the first requested opinion for esophoria, the examiner was requested to answer two questions: (a) Is it "at least as likely as not" (50 percent or greater probability) that the Veteran's left eye esophoria, which was noted upon entry into active duty, permanently increased in severity during such service?, and (b) If the answer to the above question is "Yes," was the increase in severity "clearly and unmistakably" (obviously or manifestly) due to the natural progress of the disease? Unfortunately, the opinion provided by the examiner in June 2012 is insufficient to address the above questions. Notably, the June 2012 VA examiner explained that "due to the natural courses of the developmental defect the esophoria has developed into exotropia . . . His esophoria [was] not aggravated by his military service." This opinion merely advances a conclusion as to overall aggravation; it does not sufficiently address the threshold question of whether the evidence is at least in equipoise as to whether there was a permanent increase in severity in service, which is a distinct question from aggravation beyond the natural progression of a disorder, or the following question of whether the increase in severity is clearly and unmistakably due to the natural progress of the disease. The explanation provided is further confounded by the examiner's description of the Veteran's esophoria as a "defect" with a "natural course" of progression, especially in light VA's definition of a defect versus a disease. The U.S. Court of Appeals for Veterans Claims (Court) has noted that a VA General Counsel opinion on the subject distinguishes the two classes of disabilities on the basis 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 v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). Further, each has separate legal requirements for service connection. Thus, the examiner's opinion for referring to esophoria as a defect requires clarification, and it is important that the VA examiner clearly denote whether each diagnosed left eye disability is a "defect" or a "disease," and appropriately answer the corresponding opinion questions. With regard to the second opinion requested for disorders other than esophoria, the VA examiner stated that amblyopia was also noted upon entry into service and that "the severe amblyopia persists . . . [and was] not aggravated by his military service." For the same reasons discussed above, this opinion is not sufficient for the Board to make the legal determination of whether a preexisting disability noted upon entrance was aggravated by service. If amblyopia is indeed a disability noted upon entrance, then, again, the operative questions are whether the evidence is at least in equipoise as to whether there was a permanent increase in severity in service and, if so, whether the increase in severity is clearly and unmistakably due to the natural progress of the disease. Furthermore, because the examiner concluded that amblyopia was noted upon entrance, the VA examiner did not address questions specifically posed by the Board's June 2012 remand, including whether the Veteran's amblyopia is a developmental disease or a developmental defect and, depending on the answer to that question, several related questions. Unfortunately, it is unclear to the Board how the examiner determined that amblyopia was noted upon entrance. The Board, possibly because it lacks the medical knowledge possessed by the examiner, requires an explanation of the basis for the examiner's finding that severe amblyopia was noted upon entry into service. The Board's review of the Veteran's October 1962 entrance examination clearly denotes the presence of left "esophoria, moderately severe," but there is no similarly written diagnosis of amblyopia contained on that record. For these reasons, the VA examiner must provide an explanation setting forth what specific indications on the entrance examination led the examiner to conclude that there was an explicit notation of amblyopia on the October 1962 entrance examination. If the examiner is unable to do so, then the examiner is directed to defer to the Board's legal determination that amblyopia was not noted upon entrance and to respond to the original questions posed by the June 2012 Board remand, which are restated in essence below. Without additional clarification and explanation as outlined above, the existing opinion does not sufficiently answer the questions set forth in the June 2012 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. In Stegall v. West, 11 Vet. App. 268 (1998), the Court stated that where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance. Thus, this appeal must again be remanded for compliance with the Board's prior remand. Finally, to the extent that the Veteran may have received any additional treatment for the left eye from the Amarillo, Texas, VA Medical Center, recent treatment records from that facility should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file left-eye-related treatment records from the Amarillo, Texas VA Outpatient Clinic dated from September 2012 to the present. If such records are unavailable, the claims file should be clearly documented to that effect. 2. After the development requested in item (1) is completed, schedule the Veteran for an examination to determine the nature and etiology of his claimed left eye disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. For the diagnosed esophoria, please offer an opinion as to the following questions: a) Is the Veteran's esophoria a developmental defect or a developmental disease? For VA purposes, 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 v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). b) If the esophoria is a developmental defect, was this defect subject to a superimposed disease or injury during service? The examiner is specifically requested to discuss the Veteran's March 1964 fall in service. If the answer is "Yes," please describe the resultant disability. c) If the esophoria is a developmental disease, is it "at least as likely as not" (50 percent or greater probability) that the Veteran's left eye esophoria, which was noted upon entry into active duty, permanently increased in severity during such service? If the answer to the above question is "Yes," was the increase in severity "clearly and unmistakably" (obviously or manifestly) due to the natural progress of the disease? For any other diagnosed left eye disabilities, including amblyopia and exotropia, please offer an opinion as to the following questions: a) Are there markings on the October 1962 induction examination that explicitly constitute a notation of amblyopia that was existent at that time? b) Is the Veteran's diagnosed left eye disability, to include amblyopia and/or exotropia, a developmental defect or a developmental disease? For VA purposes, 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 v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). c) If amblyopia is explicitly noted upon service entrance and it is determined to be a developmental disease, is it "at least as likely as not" (50 percent or greater probability) that the Veteran's left eye amblyopia permanently increased in severity during such service? If the answer to the above question is "Yes," was the increase in severity "clearly and unmistakably" (obviously or manifestly) due to the natural progress of the disease? d) If the diagnosed left eye disability, to include amblyopia and/or exotropia, is a developmental defect, regardless of whether it was noted upon entrance, was this defect subject to a superimposed disease or injury during service? The examiner is specifically requested to discuss the Veteran's March 1964 fall in service. If the answer is "Yes," please describe the resultant disability. e) If the diagnosed left eye disability, to include amblyopia and/or exotropia, is a developmental disease, did this disease, which was not noted upon entrance into service, "clearly and unmistakably" (obviously or manifestly) exist prior to the Veteran's entry into active duty service in October 1962? If the left eye disease clearly and unmistakably existed prior to service, was this disease "clearly and unmistakably" (obviously or manifestly) not aggravated by military service? In this special context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. If the left eye disease did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably not aggravated by military service, then assume for the purposes of answering the following question that the claimed condition did not exist prior to service. Is it "at least as likely as not" (50 percent or greater probability) that the left eye disease was incurred in or caused by an in-service injury, event, or disease? The examiner is specifically requested to discuss the Veteran's March 1964 fall in service. f) If any diagnosed left eye disability is found to be neither a developmental defect or disease, is it at least as likely as not (50 percent or greater probability) that the left eye disability was caused by, or incurred during, military service? A complete rationale must be provided for all opinions rendered. If the reviewing clinician cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).