Citation Nr: 21064532 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-10 053 DATE: October 20, 2021 REMANDED 1. Entitlement to service connection for Arnold-Chiari Malformation (ACM) is remanded. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to ACM, is remanded. 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to ACM, is remanded. 4. Entitlement to service connection for a vocal cord disorder, to include as secondary to ACM, is remanded. 5. Entitlement to service connection for an esophagus disorder, to include as secondary to ACM, is remanded. 6. Entitlement to service connection for a heart disorder, to include as secondary to ACM, is remanded. REASONS FOR REMAND The appellant is a Veteran who had active service from May 1966 to January 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 Department of Veterans Affairs (VA) rating decision that denied service connection for the disabilities listed above. [In the notice of disagreement (NOD) with the May 2015 rating decision, the Veteran's attorney raised the matter of entitlement to a TDIU rating (arguing that it was being raised in the context of entitlement to an increased initial rating). The agency of original jurisdiction (AOJ) then (improperly) decided on the merits the matter of entitlement to a TDIU rating in the statement of the case (SOC) issued pursuant to the NOD. First of all, while TDIU is raised implicitly with a claim for a rating (to include initial) increase, TDIU is not so raised when there is no claim for increase pending, service connection has not been awarded. In such instance it may become a downstream issue if service connection is ultimately granted, and a disability rating is assigned. Furthermore, a claim may not be initially decided in a statement of the case. Entitlement to a TDIU rating has not been decided in a rating decision, to which a NOD was filed, and as the matter is not raised in the context of an initial service-connection claim where service connection has been denied, and an initial rating was not assigned, the matter of entitlement to a TDIU rating is not before the Board at this time.] In January 2017, the Veteran requested a Board hearing. In July 2021, he was notified that a hearing was scheduled for August 5, 2021, but he did not appear at the hearing and did not explain his absence. Therefore, his hearing request is considered to be withdrawn. See 38 C.F.R. § 20.704. The Veteran had been represented by an attorney. In January 2021 he appointed NCDMVA as his representative. The Veteran asserts that his ACM was incurred in, or aggravated by, his active-duty service. He reported that he began passing out in service, which reflected onset of ACM or aggravation of any pre-existing ACM. The Veteran's service treatment records (STRs) show that ACM was not noted or reported on service entrance examination. His STRs show that during service he reported episodes of weakness, light-headedness, and passing out. He was evaluated for a seizure disorder and hypoglycemia, but neither was diagnosed. The STRs do not show a diagnosis of ACM during service. On April 2015 VA examination, the examiner noted that the Veteran's ACM was a congenital disability, and opined that the ACM was less likely than not caused by the Veteran's active service. In June 2015, the Veteran's physician Dr. E.M. opined that the Veteran's active service duties, that involved working overhead with neck extension, would more likely than not aggravate a pre-existing [disability] and would certainly be a strong contributor to the development of a cervical spine disorder. Dr. E.M. opined that it was reasonable that the Veteran's cervical spine disorder was caused and aggravated by his active duty-service, noting that ACM was not recognized as existing during the Veteran's active-duty service and that the Veteran's symptoms of headache, weak spells, and syncope may have been signs of ACM. In June 2015, the Veteran's physician Dr. M.R. indicated that the Veteran's ACM symptoms began during his active-duty service, explaining that the ACM was precipitated and aggravated by the mechanical and postural requirements of his duties, but that the symptoms remained undiagnosed due to the state of medical knowledge regarding ACM at the time. In July 2015, the Veteran's physician Dr. R.D. noted that he reviewed "disability papers" from VA and felt that the Veteran's ACM, vocal cord disorder, heart disorder, GERD, and cervical spine disorder correlated to his active-duty service. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. 38 C.F.R. §§ 3.303(c), 3.306. "A congenital or developmental condition that is progressive in naturethat can worsen over timeis a disease rather than a defect." O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). If a condition, including a potentially congenital or developmental condition, was not noted upon entry, the presumption of soundness applies and the burden then falls on VA to rebut the presumption by clear and unmistakable evidence that the injury or disease manifested in service was both (1) pre-existing, and (2) not aggravated by service. See 38 U.S.C. § 1111; McKinney v. McDonald, 28 Vet. App. 15, 23 (2016). The diagnosis of a congenital disease satisfies the first prong of the test, i.e., there is clear and unmistakable evidence that the disease pre-existed service. O'Bryan, 771 F.3d at 1381. However, "the mere fact that a condition is congenital does not necessarily mean that the condition itself manifested before service or that it was not aggravated by service." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Thus, the analysis under the second prong of the test should focus on whether there was clear and unmistakable evidence that symptoms of the congenital disease did not start to manifest during service and that any increase in disability during service was due to natural progress of the pre-existing condition. O'Bryan, 771 F.3d at 137980. Regarding service connection for ACM, while the consensus of the competent evidence appears to be that it is a congenital disease, neither the private nor the VA opinions adequately address (including full explanation of rationale) whether the clearly and unmistakably was not aggravated by his active-duty service. Accordingly, further development of medical opinion evidence in this matter is required. Regarding the claims of service connection for GERD, a cervical spine disability, a vocal cord disability, an esophageal disability, and a heart disability, while the Veteran asserts that they are secondary to his ACM (and thus the claims are inextricably intertwined; See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)), there is also evidence that these disabilities may be directly related to (were incurred in) his active-duty service. Regarding GERD, his STRs show that a June 1968 upper GI series may have suggested some degree of peptic disease. He later treated for indigestion in October 1968. Regarding a cervical spine disorder, Dr. E.M. opined that such was incurred in service. And the Veteran's treatment providers have opined, in essence, that these disabilities were incurred in service, but did not include adequate rationale and the opinions are inadequate to decide the claims. The matters are REMANDED for the following: 1. With identification of providers and submission of necessary authorizations by the Veteran, obtain any (and all available) outstanding medical records pertaining to evaluations and treatment he received for ACM, GERD, and cervical spine, vocal cord, esophageal, and heart disabilities. 2. When the action above is completed, arrange for the Veteran's claims file to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the likely etiology of the claimed disabilities. [If an examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting clinician should provide opinions that respond to the following: a. Confirm that the Veteran's ACM is disease and not a defect, and is a congenital disability. b. If it is a congenital defect, opine whether any additional pathology was superimposed during/or due to his activities in service. c. If it is not a congenital disease, opine whether it at least as likely as not (a 50 percent or greater probability) became manifest (was incurred in) service. The rationale provided must address the reports and opinions of manifestations in service that are alleged to have been the initial manifestations of the disease. d. If the ACM is a congenital disease (and thus pre-existed service, opine whether it at least as likely as not was aggravated by service (as reflected by initial manifestation of symptoms therein, or otherwise shown by evidence of record)? e. Is it at least as likely as not that the Veteran's GERD, cervical spine disorder, vocal cord disorder, esophagus disorder, and/or heart disorder were incurred in service, to include by virtue of becoming manifest in service or as due to the Veteran's activities/duties in service, or as otherwise shown to be etiologically related to service? The rationale provided must address both the suggestion that the disabilities were manifested in service/are related to complaints and findings in service and address (express agreement or disagreement with, including rationale) the private medical opinions noted above that indicate or suggest that the disabilities were incurred in service. f. If the Veteran's ACM if found to have been incurred in, or aggravated by, his service, opine further whether his claimed GERD, cervical spine, vocal cord, esophageal, and heart disabilities were caused or aggravated (the opinion must address aggravation)? g. If a diagnosed GERD, cervical spine, vocal cord, esophageal, or heart disability is determined to not have been caused, but to have been aggravated by his ACM, to the extent possible identify the symptoms and impairment that are due to such aggravation h. If a GERD, cervical spine, vocal cord, esophageal, or heart disability diagnosed is found to not have been incurred in service and not have been caused or the Veteran's (found to be related to his service) ACM, identify the etiology for such disability that is considered to be more likely, and explain why that is so. All opinions must include a complete explanation of rationale, with citation to supporting factual data and medical principles. The rationale provided must reflect consideration of the clinical data in the record, the Veteran's lay statements, and the opinions by the Veteran's providers (as well as VA providers) in the matters. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.