Citation Nr: 21065110 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-61 695 DATE: October 25, 2021 REMANDED Entitlement to service connection for a left upper extremity peripheral nerve disorder, to include myotonic dystrophy, left upper extremity condition, left demyelinating median motor mononeuropathy, and left carpal tunnel syndrome is remanded. REASONS FOR REMAND [The Veteran served on active duty in the U.S. Air Force from May 1985 to December 2011. These matters come on appeal before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the appeal for further development including requesting an addendum VA medical opinion. Subsequently, an addendum VA medical opinion was associated with the claims file in April 2020; however, for the reasons set forth below, the Board has determined that substantial compliance with its September 2019 Remand directives has not yet occurred, and thus, the Veteran's claim must again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left upper extremity peripheral nerve disorder, to include myotonic dystrophy, left upper extremity condition, left demyelinating median motor mononeuropathy, and left carpal tunnel syndrome is remanded. The Veteran contends that she began having symptoms of a myotonic dystrophy along with numbness in her left upper extremity and hand in service. She contends that lifting heavy bags and ammunition during service aggravated the condition. Unfortunately, the Veteran's service connection claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As aforementioned, in response to the Board's September 2019 Remand, an addendum VA medical opinion was obtained in April 2020. The VA examiner noted that myotonic dystrophy is a congenital disease with no likelihood of improvement, but the condition will progress and that the rate and severity of progression varies greatly. She further noted that myotonic dystrophy is a result of an abnormal chromosome (number 19) at birth that produce muscle weakness with myotonia, with additional possible cataracts, cardiac abnormalities, cognitive impairment, personality disturbance, glucose intolerance, hypogonadism, irritable bowel symptoms, dysphagia or gall stones. The onset of symptoms varies from before age 10 to seventh decade of life, citing Harper PS, Myotonic dystrophy, 2nd edition. 1989. As the Board has mentioned in the previous remand, every veteran is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment or where clear and unmistakable evidence demonstrates the injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as "noted" for the purpose of this analysis. 38 C.F.R. § 3.304 (b). If a condition is not "noted" upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran, and not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303 (c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). However, VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested in or was aggravated by service). See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. As noted above, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. Id. at 395. In this case, the April 2020 VA examiner clearly explained that the Veteran's myotonic dystrophy is a congenital disease with no likelihood of improvement. In a September 2017 VA examination report, the examiner noted a diagnosis of myotonic dystrophy and acknowledged that there is medical evidence for the onset of progressive weakness while in service, which she asserted was later diagnosed as myotonic dystrophy in September 2017. The answer to this question then determines the standard that needs to be applied for the other questions. If the condition is a congenital disease, then the examiner did not render her opinion using the "clear and unmistakable evidence" standard. As mentioned above, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements and the relevant medical evidence of record, and present a fully articulated, sound rationale based upon applicable VA regulations and case law. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, a prior Board remand confers on the claimant a legal right to substantial compliance with the remand order; thus, the Board errs as a matter of law if it fails to ensure substantial compliance with prior directives. See Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall, 11 Vet. App. at 271. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Update existing medical records. All responses must be associated with the claims file. 2. Following the receipt of any additional records, obtain an addendum opinion from the VA examiner who conducted and provided the September 2017 VA examination and April 2020 addendum opinion. If this VA examiner is unavailable, obtain an addendum opinion from another qualified VA examiner, and if a new VA examination is necessary, schedule the Veteran for a new VA examination. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. Given the Veteran's diagnosed myotonic dystrophy is a congenital disease as per the April 2020 VA addendum opinion, the VA examiner should answer the following questions: (a.) whether there is clear and unmistakable evidence that the condition pre-existed service. The examiner must identify the medical evidence that clearly and unmistakably demonstrates that it preexisted service. (b.) whether the disease first manifested in service and (c.) whether there is clear and unmistakable evidence that the Veteran's condition was not aggravated by the Veteran's service beyond its natural progression. If so, the examiner must identify the medical evidence that clearly and unmistakably demonstrates that it was not aggravated by service. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, Associate 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.