Citation Nr: 1751211 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-25 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a heart condition, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Robert Brown Jr., Attorney ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active service from June 1981 to October 1993 and from September 1996 to September 1999. He also had service in the National Guard. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board remanded the issues of entitlement to service connection for heart and psychiatric disabilities. In July 2016, the RO issued a rating decision granting service connection for PTSD, major depressive disorder with psychotic features, and generalized anxiety disorder, effective July 25, 2015. As such, this issue is no longer before the Board. A separate appeal involving a claim for an increased rating and a total disability rating based on individual unemployability due to service-connected disability (TDIU) is the subject of a separate decision, which will be sent to the Veteran and his attorney under separate cover. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND This matter must be remanded to further address whether the Veteran has a current heart disability. In October 2016, the Board remanded the matter, in part, to obtain a VA examination to address the nature and etiology of any current heart disability. In June 2016, a medical expert determined that the record shows that the "[V]eteran has no diagnosed heart disorder . . . . [however,] [t]here is one concern - the asymmetric septal hypertrophy reported on the echocardiogram dated 05/05/2016. This requires a clinical assessment (cardiology consult) to decide on the etiology of this echocardiographic finding as hypertrophic cardiomyopathy is in the differential diagnosis." The expert explained that asymmetric septal hypertrophy can be seen in is persons with hypertrophic cardiomyopathy, a "genetic disease," that can cause systolic murmur. The expert further explained that the murmur diagnosed in 1985 may not be benign if the Veteran has hypertrophic cardiomyopathy. The expert highlighted that "hypertrophic cardiomyopathy needs to be ruled out." In August 2016 and February 2017, VA requested a VA heart examination, in part, to address the finding of asymmetric septal hypertrophy and whether there is evidence of hypertrophic cardiomyopathy. In preparation for the VA examination, on February 27, 2017, the Veteran underwent EKG. Based on the results of the EKG, the examining cardiologist canceled the scheduled stress test due to several contraindications, to include hypertrophic obstructive cardiomyopathy. See VA treatment record (February 27, 2017) (noting that the stress test was cancelled for all of the following contraindications: Unable to walk on treadmill, presence of BBB, 2-3degree AVB (atrioventricular block), Aortic Stenosis, abnormal resting ECG (LVH, ST depression at rest), Unstable Angina, Uncompensated CHF, HOCM (hypertrophic obstructive cardiomyopathy), Uncontrolled HTN, Acute systemic illness.) In April 2017, the Veteran underwent stress test, which was negative. On VA examination in April 2017, the examiner opined that the Veteran has no current, clear cardiac diagnosis. The examiner noted that the abnormalities on the echocardiogram are not attributable to a known clinical diagnosis; the echocardiogram findings and history of a heart murmur are not due to Gulf War Syndrome/Chronic Multisystem Illness; the history of heart murmur and the echocardiogram findings are not due to service, including ionizing radiation; and the Veteran's history of a heart murmur and the echocardiogram findings are not due to PTSD, major depressive disorder with psychotic features or generalized anxiety disorder. The Board finds that reexamination is needed to address the June 2016 VA medical expert's finding that cardiac consultation is needed to rule out hypertrophic cardiomyopathy. Significantly, the April 2017 VA examiner failed to rule out hypertrophic cardiomyopathy. This is particularly troubling as hypertrophic cardiomyopathy, and other heart problems, were noted during the February 27, 2017, EKG. Upon reexamination, if the Veteran is deemed to have, or have had, hypertrophic cardiomyopathy (e.g. as noted on the February 27, 2017, EKG report), the examiner must determine whether it is a congenital disease or defect. The terms "disease" and "defect" 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. On the other hand, the term "defect" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Defects are static conditions that are incapable of improvement or deterioration, whereas diseases are capable of such progression. See O'Bryan v. McDonald, 771 F.3d 1376, 1380(Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); VAOPGCPREC 82-90 (July 1990). If deemed a disease or an acquired disorder, as hypertrophic cardiomyopathy was not noted upon entrance into service, the presumption of soundness applies. As such, the examiner is to opine as to whether the disease clearly and unmistakably pre-existed service and was not aggravated during service. If this issue is debatable where reasonable minds could disagree, the examiner is to address whether any current hypertrophic cardiomyopathy is related to service. If deemed a defect, the examiner is to opine as to whether hypertrophic cardiomyopathy was subject to a superimposed disease or injury during service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a specialist in cardiology. The examiner must review the entire claims file. Based on this review, the examiner is asked to address each of the following questions: (a) Has the Veteran had a current heart disability at any time during the pendency of the appeal? In answering this question, the examiner is to specifically address the conditions noted on the February 27, 2017, EKG report, to include hypertrophic cardiomyopathy. If hypertrophic cardiomyopathy, is, or has been present, is it a disease or defect? The terms "disease" and "defect" 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. On the other hand, the term "defect" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Defects are static conditions that are incapable of improvement or deterioration, whereas diseases are capable of such progression. i.) If deemed a congenital disease or acquired disorder, as hypertrophic cardiomyopathy was not noted upon entrance into service, the presumption of soundness applies. As such, the examiner is to opine as to whether the disorder clearly and unmistakably pre-existed service and was not aggravated during service (i.e., a permanent increase in disability beyond the natural progress of the disease). If this issue is debatable where reasonable minds could disagree, the examiner is to provide an opinion as to whether it is at least as likely as not that the Veteran's current hypertrophic cardiomyopathy is related to that which was incurred in service. ii.) If deemed a congenital defect, the examiner is to provide an opinion as to whether it is at least as likely as not that hypertrophic cardiomyopathy was subject to a superimposed disease or injury during service. (b) As to any current disability other than hypertrophic cardiomyopathy: (i) Is at least as likely as not that such had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including his exposure to ionizing radiation? (ii) Is it at least as likely as not that is proximately due to, the result of, or caused by any other medical condition, such as a psychiatric disorder or sleep apnea? (iii) Is it at least as likely as not that such has been aggravated (made permanently worse or increased in severity) by any other medical condition, such as a psychiatric disorder or sleep apnea? If so, please identify that medical condition, and whether that increase in severity was due to the natural progress of the disease? If a heart condition is diagnosed pursuant to paragraph, but the outcome of the claim remains unfavorable, undertake all steps necessary for review and action pursuant to 38 C.F.R. § 3.311, to include referral to the Under Secretary for Health, through the Under Secretary for Benefits, for preparation of a dose estimate, to the extent feasible, based on available methodologies. The Under Secretary for Benefits should determine whether it is at least as likely as not that the exposure to ionizing radiation during the Veteran's service caused or contributed to the development of a heart condition. 2. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).