Citation Nr: 21076688 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 10-42 822 DATE: December 27, 2021 REMANDED Entitlement to an initial compensable rating for Horner's Syndrome (mild left upper eyelid ptosis with anisocoria in dark) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to April 1989 and from July 2006 to November 2007, including service in Iraq. His awards and decorations include the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Board remanded this matter in July 2021 for additional development. The matter is now returned to the Board for further appellate review. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). The Board denied the Veteran's claim for an initial compensable rating for Horner's Syndrome in a September 2018 rating decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the Board's decision with regard to this issue and remand the case to the Board for additional development. In the JMPR, the parties agreed the Veteran reported symptoms "related to the distortion or asymmetry rating criteria that the Board should have analyzed." The Board remanded this matter in November 2019, October 2020, and July 2021 to obtain an adequate medical opinion. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's Horner's Syndrome (mild left upper eyelid ptosis with anisocoria in dark) is currently evaluated under DC 6019-7800, Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. See 38 C.F.R. §§ 4.79, 4.118. Under Diagnostic Code (DC) 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. The Board has remanded this matter multiple times since the JMPR to obtain a medical examination that addresses the Veteran's Horner's Syndrome (mild left upper eyelid ptosis with anisocoria in dark) in the context of distortion and asymmetry, as required by the June 2019 JMPR. The Board's prior remands, in part, have requested the agency of original jurisdiction (AOJ) provide the Veteran an examination to ascertain the severity of the disability throughout the entire appeal period, beginning approximately in November 2007; requested the selected clinician provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including DC 7800; and requested the selected clinician specifically address the Veteran's past complaints of left eyelid drooping, blurry vision, redness, and an inability to open the eye. Moreover, in the July 2021 remand, the Board specifically identified several pieces of evidence the selected clinician should consider. VA provided the Veteran a Scars and Disfigurement examination and an Eye Conditions examination in October 2021. Unfortunately, they are inadequate to adjudicate the Veteran's claim because the examiner did not provide a full description of the Veteran's disability spanning the entire appeal period; did not report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including DC 7800; and did not discuss pertinent evidence outlined in previous Board remands. The Board remains unable to assign a rating under DC 7800. Stegall, 11 Vet. App. at 271. Although the October 2021 VA examinations are inadequate to rate the Veteran's claim, the October 2021 Eye Conditions examination contains additional bilateral eye diagnoses, which may be related to service. In addition to Horner's Syndrome and left eye ptosis, the October 2021 examiner diagnosed the Veteran with bilateral pinguecula, bilateral dry eye syndrome, and bilateral nuclear sclerosis. Although the examiner indicated the additional diagnoses are unrelated to the Veteran's service-connected Horner's Syndrome, implying the newly diagnosed conditions are not proximately due to the Veteran's Horner's Syndrome, the examiner did not discuss whether they newly diagnosed bilateral eye conditions are aggravated by the Veteran's Horner's Syndrome. See 38 C.F.R. § 3.310; see also Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of "not due to," "not caused by" and "not related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Lastly, the examiner considered only the possibility of secondary service connection, and not for direct service connection. To be adequate, a medical opinion should consider all raised theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The matter is REMANDED for the following action: 1. Obtain a new VA examination for the Veteran's left eye disability. The examiner must ascertain the severity of the disability throughout the entire appeal period (November 3, 2007). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including Diagnostic Code 7800. The examiner must review the entire claims file and specifically address the Veteran's past complaints of drooping, blurry vision, redness, and an inability to open the eye. The opinion must explicitly address: a. The Veteran's report during a January 2008 VA eye examination of a droopy eyelid that does not change throughout the day. b. The Veteran's report during a November 2008 VA treatment appointment of his left eye drooping on and off since his service in Iraq. c. The Veteran's report during a September 2010 VA neurological examination that his left eyelid droop changes throughout the day and that it is sometimes severe enough to cause partial visual loss. d. The Veteran's report during a May 2011 VA treatment appointment that he can sometimes hardly open his eye. e. The Veteran's report during a March 2014 VA treatment appointment of episodic lid closure of his left eye. f. The Veteran's report during a November 2017 VA eye examination of episodes of left upper eyelid lowering. The selected clinician is advised that the parties before the Court of Appeals for Veterans Claims instructed the Board in a Joint Motion for Partial Remand that reports of these symptoms are "related to the distortion or asymmetry rating criteria." 2. Obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral pinguecula, bilateral dry eye syndrome, and bilateral nuclear sclerosis. The Veteran should only be scheduled for a new examination if deemed necessary by the selected examiner. The examiner must opine whether the Veteran's bilateral pinguecula, bilateral dry eye syndrome, and/or bilateral nuclear sclerosis is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the bilateral pinguecula, bilateral dry eye syndrome, and/or bilateral nuclear sclerosis is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected Horner's Syndrome (mild left upper eyelid ptosis with anisocoria in dark). Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The fact that his report of symptoms is not corroborated by contemporaneous medical treatment records is not, by itself, a sufficient reason to reject the Veteran's report of symptoms capable of lay observation. The examiner's report must include a complete rationale for the opinion. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.