Citation Nr: 21063517 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 13-12 293 DATE: October 14, 2021 REMANDED Entitlement to service connection for a heart disorder, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1969 to December 1991. His awards and decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2016. A transcript is of record. In June 2016, January 2018, and May 2020, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. On review, the Board finds that additional development is necessary prior to final adjudication of the issue on appeal. In an August 2020 VA medical opinion, the examiner opined that the Veteran's non-ischemic hypertrophic cardiomyopathy is a congenital defect. However, the examiner's supporting rationale does not adequately explain why the Veteran's condition is considered a congenital "defect" rather than a congenital "disease." In this regard, the examiner stated that hypertrophic cardiomyopathy is a genetically determined heart muscle disease. The examiner also stated that the findings of borderline cardiomegaly and left ventricular hypertrophy during service were expected progressions of the Veteran's hypertrophic cardiomyopathy. The Board notes that a congenital or developmental condition that is progressive in nature- that can worsen over time- is a disease rather than a defect. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VAOPGCPREC 82-90 (July 18, 1990)). Therefore, "any worseningany change at allmight demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable." Id. at 395. Service connection may also be granted for hereditary diseases which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990). The examiner's medical opinions as written are also unclear. For example, the examiner stated that ventricular hypertrophy was not suspected or diagnosed during active duty. However, the examiner also noted that a 1991 echocardiogram showed evidence of left ventricular hypertrophy. Based on the foregoing, a remand is necessary to obtain an additional VA medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a heart disorder that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's heart disorder. A physical examination is only needed if deemed necessary by the VA examiner. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current heart disorders and indicate if the Veteran has ischemic heart disease. In so doing, he or she should consider the VA and private medical records and indicate whether transient myocardial ischemia is a form of ischemic heart disease. (a) For each disorder identified, the examiner should state whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") (b) For each diagnosis that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service. (c) For each diagnosis that is a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the preexisting heart disorder during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. (d) For each diagnosis that did not clearly and unmistakably preexist service other than ischemic heart disease, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, to include any symptomatology or herbicide exposure therein (notwithstanding the fact that it may not be a presumed association). In rendering his or her opinion, the examiner should consider the following: 1) the March 1982 service treatment record that noted borderline cardiomegaly; 2) the September 1989 service treatment record that documented left ventricular hypertrophy with sinus bradycardia; 3) the June 1991 separation examination that noted left ventricular hypertrophy, a borderline heart size, and a wall motion abnormality according to echocardiogram; 4) a September 2003 VA medical record in which the Veteran reported having chronic fatigue since his service in the Republic of Vietnam; 5) the private medical opinions and evaluations of record (see, e.g., November 1991 echocardiogram; November 1991 cardiac stress test; October 2010 cardiac stress test; November 2010 cardiac catherization report; May 2012 private Disability Benefits Questionnaire (DBQ) from Dr. V.K.; May 2014 cardiac catherization report; November 2015 private DBQ from J.W.; April 2017 private DBQ from Dr. V.K.; April 2017 private medical opinion from Dr. V.K.; June 2017 private medical opinion from Dr. M.A.; and January 2018 private DBQ from Dr. V.K.); and 6) the VA examinations and medical opinions of record. (The term "clear and unmistakable" means that the evidence is undebatable.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.