Citation Nr: 18152107 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-28 395 DATE: November 20, 2018 REMANDED Entitlement to service connection for Ehlers-Danlos syndrome is remanded. Entitlement to service connection for an acquired psychiatric disability, including as secondary to Ehlers-Danlos syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 to January 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2014, the Veteran testified before a Veterans Law Judge. A Board decision of October 2015 remanded the claim and directed additional medical evidence be developed. Thereafter, a December 2016 supplemental statement of the case (SSOC) was issued, and the claim returned to the Board. By letter of May 2017 the Veteran was notified that the Judge who presided over the hearing was no longer available and, without response from him, the case would proceed without any additional hearing. The Veteran did not respond. The Board’s August 2017 decision noted the newly developed medical evidence was not addressed in the December 2016 SSOC. The claim was remanded for issuance of an additional SSOC. A May 2018 SSOC was issued and the file was returned to the Board for further appellate review. 1. Entitlement to service connection for Ehlers-Danlos syndrome is remanded. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b)(1); see, also, Crowe v. Brown, 7 Vet. App.238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. However, a congenital or developmental “defect” is not considered a disease or injury subject to service connection. 38 C. F. R. § 3.303(c). As such, a hereditary condition that cannot change is a “defect” and is not subject to the presumption of soundness under 38 U.S.C. § 1111. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). Nevertheless, if a congenital or developmental defect is subject to a superimposed disease or injury during service, service connection will be granted for any resultant additional disability. VAOPGCPREC 82-90 (July 1990) at p.3. In contrast, the presumption of soundness upon service entry does apply to congenital or developmental “diseases” that are not noted in the service entrance examination. Quirin, at 396. “A congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect. A progressive congenital or developmental condition does not become a defect simply because it ceases to progress.” O'Bryan, at 1380. Service connection is allowed for a congenital or developmental disease if it first manifested during service, or if it preexisted service and was aggravated by service. VAOPGCPREC 82-90 at p.2-3. A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Evidence of record reflects the Veteran entered service without any notation of Ehlers-Danlos syndrome. He was diagnosed with this condition in 2007 by a private physician, Dr. M. Dr. M. described the condition as a “genetic disorder.” He indicated that patients with the condition “develop osteoarthritis at an earlier age and may encounter multiple joint problems.” The diagnosis of Ehlers-Danlos syndrome is confirmed by an October 2016 VA examination. The Veteran asserts his Ehlers-Danlos was aggravated by exposure to chemicals while he was stationed at McClellan Air Force Base. He submitted information from the Agency for Toxic Substances and Disease Registry documenting chemicals found on the Base. Additionally, his service treatment records and his testimony document he experienced joint problems and osteoarthritis in service. In October 2015 the Board, found Ehlers-Danlos was a genetic disorder, but it was unclear whether it was a congenital defect or congenital disease. It was also unclear from the evidence of record whether the joint pain experienced in service was a manifestation of the condition and whether chemical exposure was related to the onset or aggravation of the condition. Accordingly, the Board remanded the claim and, in part, directed further development to clarify medical questions. Central to the issues before the Board is whether Ehlers-Danlos is a congenital disease or congenital defect. VA examinations of September 2016 and October 2016 failed to address the question. Accordingly, the examinations are inadequate to evaluate the claim and do not comply with the prior remand directives. New evaluations must be obtained. See Stefl, supra; see also Stegall, supra. 2. Entitlement to service connection for an acquired psychiatric disability, including as secondary to Ehlers-Danlos syndrome is remanded. The Board finds the claim for service connection for an acquired psychiatric disability is inextricably intertwined with the claims for service connection for Ehlers-Danlos syndrome. Thus, this claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Refer the claims file to an appropriate medical professional to evaluate the Veteran’s Ehlers-Danlos syndrome. If the medical professional determines an in-person examination is warranted, schedule an examination. The examiner is to answer the following questions: a) Is the Veteran’s Ehlers-Danlos syndrome a congenital defect or congenital disease? For purposes of this question, a congenital defect is a condition that can neither improve nor worsen. A congenital disease is a condition that is subject to improvement and/or worsening. The examiner should provide a detailed explanation for the conclusion reached. b) If Ehlers-Danlos syndrome is found to be a congenital defect; the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that there is any additional disability (other than the currently service-connected right knee disability, identified as internal derangement, right knee, with partial medial meniscectomy and the currently service-connected left knee disability, identified as anterior cruciate insufficiency), as a result of any joint condition or chemical exposure, superimposed on the congenital defect during service. c) If Ehlers-Danlos syndrome is found to be a congenital disease, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) it was aggravated (worsened beyond the normal progression of that disease) during the Veteran's active duty service, including by exposure to chemicals in the environment at McClellan Air Force Base or by any joint injury or disease in service. d) If Ehlers-Danlos syndrome is found to be a disease that is not congenital, the examiner must also determine whether it is as likely as not (50% probability or greater) that any joint condition manifest in service constituted an initial manifestation of Ehlers-Danlos during service or an aggravation of the syndrome. The examination report must include a complete rationale for all opinions expressed. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel