Citation Nr: 21067044 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 12-14 989 DATE: November 3, 2021 REMANDED Entitlement to service connection for a heart condition, to include heart hypertrophy, to include as secondary to service-connected hypertension, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1972 to June 1974, February 2003 to May 2003, and July 2006 to November 2007, to include service in Southwest Asia from September 2006 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in September 2019, March 2021, and July 2021. In February 2019, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claim file. See February 2019 Board Hearing Transcript. Entitlement to service connection for a heart condition, to include heart hypertrophy, to include as secondary to service-connected hypertension, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the July 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in July 2021, the Board instructed the AOJ to obtain an etiological opinion for all diagnosed heart conditions other than Type 1 left ventricular diastolic dysfunction, even if it had resolved during the pendency of the appeal, to include heart hypertrophy. In formulating the requested opinions, the examiner was asked to specifically address the Veteran's March 2008 diagnosis of heart hypertrophy and the June 2015 notation of mildly enlarged heart. If the examiner determined these diagnoses were made in error, a thorough explanation was to be provided. In September 2021, a VA medical opinion was obtained in which the examiner addressed the etiology of the Veteran's Type 1 left ventricular diastolic dysfunction. No other conditions were addressed, aside from noting that x-rays conducted in February 2008 (prior to the diagnosis of heart hypertrophy), August 2016 and October 20127, and ECHO testing in September 2017 and September 2020 did not demonstrate hypertrophy. See September 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to allow the AOJ to obtain an adequate opinion that substantially complies with the Board's directives. See Stegall v. West, supra. Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the nature and etiology of the Veteran's claimed heart condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Lastly, the Board notes that, in an October 2021 Informal Hearing Presentation (IHP), the Veteran's representative requested that the Board grant service connection for the Veteran's diagnosed Type 1 left ventricular diastolic dysfunction as secondary to his service-connected hypertension. However, the Board notes that, in an April 2021 rating decision, the Veteran was granted service connection for such condition and assigned a non-compensable rating, effective December 13, 2010. If the Veteran disagrees with the rating or effective date assigned, he is encouraged to submit a VA Form 20-0996 or VA Form 10182, seeking either higher-level review or Board review, respectively, of the April 2021 rating decision. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, including records relating to treatment at San Juan VA Medical Center from September 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an advisory medical opinion from an independent medical expert pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Identify any and all heart conditions, other than type 1 left ventricular diastolic dysfunction, that have been diagnosed from December 2010 to current, even if it resolved during the pendency of the appeal, to include heart hypertrophy. (c.) For each diagnosed heart condition other than type 1 left ventricular diastolic dysfunction, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include service in Southwest Asia. (d.) For each diagnosed heart condition, other than type 1 left ventricular diastolic dysfunction, not found to be related to service above, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition is caused by a service-connected condition, to include hypertension. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include hypertension. (e.) In formulating the requesting opinions, the physician is asked to specifically address: i. The Veteran's March 2008 diagnosis of heart hypertrophy and the June 2015 notation of mildly enlarged heart. If the physician determines that such diagnoses were in error, a thorough explanation as to why should be provided. ii. The Veteran's August 2004 ECG of possible atrial abnormality from his service treatment records. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on the next page) If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.