Citation Nr: 18159389 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 14-15 196 DATE: December 19, 2018 REMANDED Entitlement to service connection for an eye disability, to include amaurosis fugax, and to include as secondary to the Veteran’s service-connected migraine headaches is remanded. Entitlement to service connection for residuals of mild esotropia of the right eye is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee is remanded. Entitlement to an initial compensable rating for limitation of extension of the left knee, to include the period prior to February 4, 2015 is remanded. Entitlement to an initial compensable rating for limitation of extension of the right knee, to include the period prior to February 4, 2015 is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine arthritis is remanded. Entitlement to an initial compensable rating for migraine headaches prior to February 4, 2015, and in excess of 10 percent from that date is remanded. REASONS FOR REMAND Entitlement to service connection for an eye disability, to include amaurosis fugax to include as secondary to the Veteran’s service-connected migraine headaches is remanded. Entitlement to service connection for residuals of mild esotropia of the right eye is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee is remanded. Entitlement to an initial compensable rating for limitation of extension of the left knee, to include prior to February 4, 2015, is remanded. Entitlement to an initial compensable rating for limitation of extension of the right knee, to include prior to February 4, 2015, is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine arthritis is remanded. Entitlement to an initial compensable rating for migraine headaches prior to February 4, 2015, and in excess of 10 percent from that date is remanded. The Veteran served on active duty from November 1983 to July 1986, from November 1989 to July 1991, from May 2005 to October 2006, from March 2008 to May 2009, and from November 2011 to May 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. In a February 2015 rating decision, the RO granted service connection and assigned separate noncompensable (0 percent) ratings for limitation of extension of both the left and right knees, each effective February 4, 2015. All manifestations of the both knee disabilities, for the entire appeal period, are before the Board. The claims were most recently remanded by the Board in February 2018. Additional development is needed and the claims must be remanded again. Regarding the Veteran’s claims for eye disabilities, on February 2015 VA examination bilateral cataracts and strabismus in the right eye were diagnosed. While the examiner opined that there was no direct association between cataracts and strabismus with the Veteran’s recurring headaches, the Board cannot make a fully-informed decision on the issue of service connection for an eye disability because no VA examiner has opined whether the Veteran’s cataracts and strabismus are related to his in-service report of amaurosis fugax. Additionally, the record reflects that the Veteran had surgery in 1998 to currect the esotropia in his right eye, which was noted to be a congential defect. While the February 2015 VA examiner found that the Veteran had no further issues with esotropia, the Board notes that esotropia is a form of strabismus. Notably, a congenital or developmental “defect” is not of itself a disease or injury within the meaning of applicable legislation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality by superimposed disease or injury in service. Accordingly, on remand the examiner should provide an opinion as to whether the Veteran’s diagnosed strabismus is a current residual of his esotropia, a separate congenital disease or defect, whether it was subject to a superimposed injury in service, or related ot his in-service amaurosis fugax. In a March 2017 statement, the Veteran asserted that his migraine headaches, cervical spine, and left and right knee disabilities have increased in severity since the Veteran was last examined by VA in September 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his migraine headaches, neck, and left and right knee disabilities. In a March 2017 statement, the Veteran also identified relevant outstanding private treatment records from Sani-eye of Templeton, California and from Dr. S.T.S. of Templeton, California. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for eye complaints since service, and for any migraine headache, knee, or neck complaints since June 2010. Specifically, ask the Veteran to complete a VA Form 21-4142 for Sani-eye in Templeton, California and Dr. S.T.S in Templeton, California. Make two requests for the authorized records from Sani-eye and Dr. S.T.S., unless it is clear after the first request that a second request would be futile. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since October 2018. 2. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any eye condition. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all diagnosed eye conditions since June 2009 to include bilateral cataracts and strabismus of the right eye. (b.) For each diagnosed eye condition, is it a residual of the Veteran’s esotropia of the right eye? (c.) If the answer to (b) is no, for each diagnosed eye condition, is it a separate congenital defect or disease than the Veteran’s esotropia? The examiner is informed that for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (d.) For any diagnosed eye condition that is a residual of the Veteran’s esotropia or a separate congenital defect, is it at least as likely as not that there was a superimposed injury or disease in service that resulted in an additional eye condition, to include amaurosis fugax? (e.) For any diagnosed condition that is a congenital disease, is it clear and unmistakable (i.e., it is undebatable) that the condition preexisted any period of the Veteran’s active duty military service? (f.) If the answer to (e) is yes, does the evidence of record clearly and unmistakably show that the preexisting eye condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (g.) If the answer to (b) and (c) is no, is it at least as likely as not that the Veteran’s diagnosed eye condition is it at least as likely as not related to an in-service injury, event, or disease, including his in-service report of amaurosis fugax. (h.) If the answer to (b) and (c) is no, is it at least as likely as not (1) proximately due to the Veteran’s service-connected migraine headaches, or (2) aggravated (defined as any increase in disability) by the Veteran’s service-connected migraine headaches. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. After the completion of (1), schedule the Veteran for an examination of the current severity of his migraine headaches, left and right knee, and neck disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his migraine headaches, left and right knee disabilities, and neck disability alone and discuss the effect of the Veteran’s migraine headaches, left and right knee disabilities, and neck disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel