Citation Nr: 18146613 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 12-19 445 DATE: October 31, 2018 REMANDED Entitlement to service connection for an eye disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps (USMC) from April 1977 to March 1980 and from June 1981 to June 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board most recently remanded the case for further development in August 2017. The case has since been returned to the Board for appellate review. Eye disability Unfortunately, a remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that the Veteran is afforded every possible consideration. The Veteran was afforded a VA examination in July 2014. At that time the examiner diagnosed the Veteran with refractive amblyopia and presbyopia. The examiner opined that the Veteran’s refractive amblyopia was not caused by or a result of blunt trauma to the head in 1981. In so finding, the examiner noted that the Veteran wore strong glasses upon entering service. In an August 2017 decision, the Board found that opinion to be inadequate. Specifically, the Board noted that the evidence of record suggested that the Veteran complained of blurred vision during service and received treatment for his eye disability after separation from service. That the examiner’s conclusion that the Veteran’s eye disability was not caused by or a result of blunt trauma to the head in 1981 was not sufficient to meet the burden of proof. Moreover, the Board noted that the fact that full time glasses could lessen and resolve the Veteran’s eye disability was not dispositive evidence and could not be used to conclude that the Veteran did not have an eye disability during service. Thus, the Veteran was afforded another VA examination in October 2017. At that time, the Veteran was diagnosed with refractive error, specifically presbyopia and hyperopia. The examiner found that the conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that presbyopia and hyperopia were refractive conditions and not medical eye conditions. No further rationale was provided. The Board finds the October 2017 VA examination is inadequate to decide the Veteran’s claim. In that regard, the examiner did not discuss the Veteran’s in-service complaints of blurred vision, nor did the examiner discuss the eye treatment the Veteran received after separation from service. Further, the Board notes that a veteran will be considered 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 (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2018). Further, only such conditions as are recorded in physical examination reports are to be considered as noted. Paulson v. Brown, 7 Vet. App. 466 (1995). Additionally, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. The terms disease and defects must be interpreted as being mutually exclusive. The term 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. The term defect means structural or inherent abnormalities or conditions that are more or less stationary in nature. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). As such, a new VA opinion that discusses the above should be obtained. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present eye disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based upon the examination results and the review of the record, the examiner should identify any and all diagnoses of eye disabilities and make a determination as to whether each identified eye disability is a disease, a defect, or are the result of an injury. In determining whether a condition is a defect, as opposed to a disease or injury, the examiner should consider that the term “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. On the other hand, the term “defects” are defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Once all diagnoses have been identified and characterized as a disease, defect, or the result of an injury, the examiner should provide the following opinions: a) Does the Veteran have an eye disability (a disease or a disability resulting from injury ONLY, not defect) that clearly and unmistakably existed prior to his active service? If so, was any pre-existing eye disability (a disease or a disability resulting from injury ONLY) clearly and unmistakably NOT aggravated during active service? b) For any disability determined to be a defect, is it at least as likely as not (50 percent or better probability) that the Veteran developed superimposed eye pathology as a result of his active service? c) With regard to any diagnosed eye disability not found to clearly and unmistakably exist prior to the Veteran’s service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to active service. In forming the opinions, the examiner should be sure to address the Veteran’s in-service complaint of blurred vision, post-service eye treatment, and the Veteran’s previously diagnosed refractive amblyopia. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel