Citation Nr: 21012026 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-28 187 DATE: March 3, 2021 REMANDED Entitlement to service connection for an eye conditions to include myasthenia gravis, strabismus, hypertropia, astigmatism is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Air Force from July 1984 to October 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the May 2012 and July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a video conference hearing before the undersigned Veteran’s Law Judge. In April 2018, the Board remanded the Veteran’s claim for further development. In September 2020, the Board again remanded the Veteran’s claim for a new VA examination. In November 2020, the RO issued a Supplemental Statement of the Case (SSOC). In November 2020, the Board also issued a rating decision that granted service connection for the Veteran’s diplopia bilateral eyes, with exophoria and myogenic ptosis of right. The claims for bilateral eye disability involving myasthenia gravis, strabismus, hypertropia, astigmatism and refractive error are now properly before the Board. A veteran is presumed to be in sound condition when accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not in itself constitute a notation or a pre-existing condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). The Board notes that congenital or developmental defects are generally not service-connected because they are not diseases or injuries under VA law and regulations. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1996). However, service connection may be granted for a disability that is shown by the evidence to have resulted from a congenital or developmental defect, which was subject to a superimposed injury that occurred during, or as a result of, active service. See VAOPGCPREC 82-90 (1990), 56 Fed. Reg. 45711 (1990). In a November 2020 rating decision, the RO granted the Veteran’s claims for service connection for diplopia bilateral eyes, with exophoria and myogenic ptosis of right. The RO continued to deny the Veteran’s claim for bilateral eye disability involving myasthenia gravis, strabismus, hypertropia, astigmatism and refractive error. The RO noted that the Veteran did have myasthenia gravis, strabismus, hypertropia, astigmatism and refractive error, however the October 2020 VA examiner found those conditions to be congenital and pre-existed service. The Board finds that the examiner failed to substantially comply with the Board’s remand instructions. While the October 2020 VA examiner did find that the Veteran’s myasthenia gravis, strabismus, hypertropia, astigmatism and refractive error were congenital in nature, the examiner did not determine whether or not they were aggravated beyond its natural progression as a result of active service. The October 2020 examiner also noted that the Veteran’s eye disabilities, hypertropia and astigmatism, did clearly and unmistakably preexist active service; however the examiner did not thoroughly address the Veteran’s myasthenia gravis, strabismus and refractive error and whether those disabilities were clearly and unmistakably preexisting service. Furthermore, the examiner was specifically asked to address whether any pre-existing conditions were aggravated beyond their natural progression by active service, and the examiner failed to comply. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to consider the Veteran’s medical history and aggravation beyond natural progression by active service. The matters are REMANDED for the following action: 1. Obtain a new medical opinion from an appropriate clinician on this Veteran’s claim for service connection of myasthenia gravis, strabismus, hypertropia, astigmatism and refractive error. If the examiner determines that a physical examination is necessary to provide the requested opinions, such should be scheduled. The examiner must address the following questions: (a) Is the Veteran’s myasthenia gravis, strabismus, hypertropia, astigmatism and refractive error clearly and unmistakably preexist active service? “Clear and Unmistakable” evidence means evidence that cannot be misunderstood or misinterpreted and leads to an undeniable conclusion. (b) Were any of the Veteran’s eye disabilities, specifically strabismus, hypertropia, astigmatism and refractive error clearly and unmistakably aggravated beyond their natural progression by active service. (c) Is it at least as likely as not (50 percent probability or greater) that any of the Veteran’s eye disabilities were incurred in or are otherwise related to active service? 2. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any would allow for a more definitive opinion. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.