Citation Nr: 1821183 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 14-29 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for exotropia. REPRESENTATION Appellant represented by: Shana M. Dunn, Attorney ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from March 1980 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. Jurisdiction has transferred to the RO in Milwaukee, Wisconsin. The Veteran initially requested a videoconference hearing before the Board but subsequently withdrew his request. See Correspondence dated July 2017. The hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Upon review of the evidence, including conflicting medical opinions of record, the Board finds further evidentiary development is required before adjudication of the Veteran's claim for service connection for exotropia. The Veteran maintains that his pre-existing exotropia was aggravated by service. His claim was previously denied based on the absence of evidence which showed permanent aggravation of his pre-existing condition. To reopen his previously denied claim for service connection for exotropia, the Veteran submitted a favorable private medical opinion finding that his pre-existing exotropia was aggravated beyond the normal progression during his military service. See Statements from R.S., D.O. of March 2013 and addendum of April 2014. The record reflects a May 2014 VA examination report with the finding that the Veteran's pre-existing eye condition was not made worse as a result of the surgery the Veteran had during service. See VA examination report of May 2014. However, the Board finds both medical opinions inadequate as neither address the question of whether the Veteran's diagnosed exotropia and diplopia constitute congenital defects or congenital diseases. Furthermore, the Board observes that there is no medical opinion of record addressing that if the Veteran's childhood exotropia is a congenital defect, whether there is any evidence of a superimposed disease or injury resulting from the childhood exotropia or an aggravation of the disorder. Conversely, if the Veteran's exotropia and/or diplopia is determined a congenital disease, an opinion must also be obtained with the proper standard set out in the regulations that the disease clearly and unmistakably was not aggravated by such service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). See 38 U.S.C. §1111; 38 C.F.R. §3.306(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has further explained that 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 familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). For VA purposes, 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" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). VA General Counsel has further noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)); VAOPGCPREC 67-90 (July 18, 1990). Further, "[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,'" and "any worsening-any change at all-might demonstrate that the condition is a disease." Quirin v. Shinseki, 22 Vet.App. 390, 394-95 (2009); (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)); see Id. at 395 (referring to defects as "'more or less' static and immutable")." Given the above conclusion and pursuant to Quirin v. Shinseki, the Board finds remand is warranted for a new examination and to obtain an adequate medical opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his eye disability. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: a) Identify any currently diagnosed eye disabilities to include exotropia and diplopia. b) Indicate which, if any, of these conditions constitute a congenital defect or a congenital disease? For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. In determining whether the Veteran's current diagnoses are defects or diseases, the examiner should specifically address any reports of worsened conditions and double vision, which the Veteran believes is evidence that his current eye disorders are deteriorating and are thus diseases and not defects. c) If the Veteran's exotropia and/or diplopia is a congenital defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability? Please identify the additional disability. d) In contrast, if the Veteran's exotropia and/or diplopia is a congenital disease, please state (i) whether the disease clearly and unmistakably preexisted the Veteran's entry into active service; and (ii) whether the disease clearly and unmistakably was not aggravated, beyond the normal progress of the disorder, during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). e) If the Veteran's exotropia and/or diplopia is not congenital in nature, or if it did not clearly and unmistakably preexist the Veteran's service, is it at least as likely as not (probability of 50 percent or more) that any such disorder was incurred in or aggravated by any incident, disease, or injury during service? A complete rationale for all opinions is requested. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 2. After completing the above action and any other development deemed necessary, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).