Citation Nr: 18144835 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-12 654 DATE: October 25, 2018 REMANDED Entitlement to service connection for polycystic ovary syndrome (PCOS) is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the United States Army National Guard from July 1989 to November 1989 and on ACDUTRA and on inactive duty for training (INACDUTRA) in the Army National Guard from January 1989 to January 2009, to include on active duty from December 1990 to September 1994. In October 2017, the case was remanded for additional evidentiary development and has been returned to the Board for further appellate review. 1. Entitlement to service connection for PCOS In August 2010, the Veteran requested service connection for PCOS. During the course of the appeal, the Veteran underwent a VA examination for PCOS in October 2010. Following the clinical evaluation, the VA examiner rendered a diagnosis of PCOS with history of insulin resistance, and concluded the following: [PCOS] is a common endocrine disorder in women, which typically manifests in adolescence with various symptoms such as: irregular menses, hirsutism and acne. PCOS is due to genetic trait and tendency which can become evident with obesity. Although PCOS was diagnosed while [the Veteran] was in the National Guard, PCOS and insulin resistance is not related to service activity. Subsequently, following a review of the claims file, another VA physician provided an addendum VA medical opinion in March 2012. It was concluded, in part, that the Veteran was diagnosed with PCOS following separation from active service and “there was no clinical onset or aggravation of PCOS while on active duty since the Veteran was asymptomatic throughout service for PCOS menstrual signs and symptoms;” therefore, “the Veteran’s PCOS was not due to, or the result of, or aggravated by service.” Pursuant to the October 2017 remand, another VA physician provided an addendum VA Disability Benefits Questionnaire (DBQ) medical opinion in November 2017. Following a review of the claims file and medical literature, the VA physician explained why “[i]t is less likely than not that PCOS is a condition that is subject to worsening as a result of disease or injury, rather than due to natural progression.” It is not clear from the opinions whether the Veteran’s PCOS is a congenital defect or disease. As such, additional development is needed to properly adjudicate the appeal, to include obtaining an additional VA medical opinion. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2018); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 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 (2018). 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). VA’s General Counsel has also expressly stated that the terms “disease” and “defects” 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 “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). However, 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). The matter is REMANDED for the following actions: 1. Return the Veteran’s claims file to the VA clinician who provided the November 2017 VA DBQ medical opinion so a supplemental opinion may be provided. If that clinician is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: (a.) Whether the Veteran’s diagnosis of PCOS (noted in April 1996 and in the October 2010 VA examination report) is a congenital defect, congenital disease, or neither. Note – For VA purposes a defect is defined as a structural or inherent abnormality or condition which is more or less stationary in nature. A disease is 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. (b.) If the Veteran’s PCOS is a congenital defect, determine whether it was at least as likely as not (50 percent probability or greater) subject to a superimposed disease or injury during her period of active service from December 1990 to September 1994 that resulted in an additional disability. (c.) If the Veteran’s PCOS is a congenital disease, determine whether it clearly and unmistakably existed prior to her entry into active military service in December 1990. If PCOS is found to have clearly and unmistakably existed prior to service, determine whether it is also clear and unmistakable that it was not aggravated to a permanent degree in service. If PCOS is not found to have clearly and unmistakably preexisted her period of active service in December 1990, determine whether it is as least as likely as not (50 percent or greater probability) that it began in or is related to her period of active military service from December 1990 to September. The examiner is advised that the evidentiary standard for whether a condition existed prior to service is “clear and unmistakable,” which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review the examination report (if provided) and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the Regional Office (RO) must implement corrective procedures. (Continued on the next page)   3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel