Citation Nr: 18144805 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-33 061 DATE: October 25, 2018 REMANDED Entitlement to service connection for an eye disability, to include cataracts, is remanded.   REASONS FOR REMAND The Veteran had active military service in the US Army from November 1991 to April 1996. The Veteran has asserted entitlement to service connection for bilateral cataracts. This claim was previously remanded by the Board in March 2018 for an addendum medical opinion. The requested development was completed; however, the Board notes that another addendum opinion is necessary in order to adjudicate the Veteran’s claim. The Veteran was afforded a VA examination in 2016 and 2018 that determined that his diagnosed cataracts is a congenital condition that has existed since the Veteran’s birth. The Veteran was not diagnosed with an eye disability in service and an eye disability was not noted at service entrance. As such, the presumption of soundness exists and under this legal standard certain medical determinations must be made prior to adjudicating the claim. The Board is remanding for such medical determinations. Service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term “disease” in 38 U.S.C. §§ 310, 331, and the term “defects” in 38 C.F.R. § 3.303 (c), as being mutually exclusive. “Disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing Dorland’s Illustrated Medical Dictionary 385 (26th ed. 1974)). On the other hand, the term “defect,” viewed in the context of 38 C.F.R. § 3.303 (c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between “disease” and “defect,” indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). As previously noted, remand is necessary in order to make these medical determinations prior to the adjudication of the Veteran’s claim for service connection. The August 2018 VA examiner commented that the Veteran was “was born with these cataracts (congenital). They are small congenital opacities and will not change. Progression of the veteran’s cataracts following an incident in which the veteran has some glass in his eyes was not addressed.” In a separate opinion, the VA examiner gave the following explanation: This Veteran was born with these cataracts (congenital). They are small congenital opacities and will not change. They have no effect on his vision. They were not aggravated by the in service accident. Having glass in the eye more likely than not would cause corneal scarring. No corneal scarring was seen upon examination. Cataracts you're born with (congenital cataracts). Some people are born with cataracts or develop them during childhood. These cataracts may be genetic, or associated with an intrauterine infection or trauma. These cataracts also may be due to certain conditions, such as myotonic dystrophy, galactosemia, neurofibromatosis type 2 or rubella. Congenital cataracts don't always affect vision, but if they do they're usually removed soon after detection. A corneal abrasion is a scratch on your eye. That’s the clear layer that is five layers thick that covers the iris, the colored part of your eye. It also shields the pupil --the black circle in the middle of your eye. The veteran had a tiny piece of glass from a motorcycle accident on the front surface of the cornea. No scarring was found upon examination. Patient is corrected to 20/20 RT, LT, OU. Traumatic cataracts occur secondary to blunt or penetrating ocular trauma. The eye, where the delicate ocular structures are particularly vulnerable to damage from trauma. This type of damage was not found upon examination. In giving this opinion, the VA examiner classified the cataracts as “congenital.” The examiner did not indicate further whether they are congenital defects or diseases. To the extent, the examiner commented that they “will not change.” This indicates that the examiner may consider them congenital defects. However, they examiner did not make this explicit, and the Board is not qualified in medical matters to draw such an inference. As such, clarification from the examiner is needed. The matter is REMANDED for the following action: 1. Return the case to the prior VA examiner. The examiner is asked to provide a clarifying medical opinion on each of the following questions: (a.) Are the Veteran’s cataracts considered a congenital defect or a congenital disease? For purposes of answering the question, the examiner is asked to consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration. A congenital disease, for purposes of this question, means a disease that is progressive in nature, such that it can worsen over time. (b.) If the Veteran’s cataracts are determined to be a congenital defect, was there additional disability superimposed upon that congenital defect during the Veteran’s service or lifetime? (c.) If the Veteran’s cataracts are classified as a congenital disease, what is the likelihood that they preexisted his entrance into active service? In answering this question, the examiner is advised that the cataracts were not noted at the Veteran’s entrance into active duty, but were diagnosed in 2016. (d.) If not a congenital disease, did any preexisting cataracts worsen (i.e., increase in severity) during service? If yes, was that worsening due to the natural progress of the disease? (Continued on the next page)   In answering these questions, please state how certain you are in your answers. Would any doctor with the same information reasonably be able to reach a different conclusion? It is also asked that you articulate the reasons underpinning all conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) provide a rationale for the basis of such opinion. C. BOSELY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson