Citation Nr: 21071922 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 08-22 614 DATE: December 1, 2021 ORDER Entitlement to service connection for a heart murmur is denied. Entitlement to service connection for Type I Arnold Chiari malformation is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a heart murmur at any time during or approximate to the pendency of the claim. 2. The Veteran's Chiari malformation was not aggravated or subject to a superimposed injury during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart murmur have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for Type I Arnold Chiari malformation have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to October 1985, from November 2002 to October 2003, and from August 2004 to May 2005. In October 2010, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the Board hearing has been associated with the claims file. In September 2021, the Veteran was notified that he was entitled to another hearing in light of the fact that the VLJ who had conducted his hearing was no longer with the Board. See 38 U.S.C. § 7107(c). The Veteran has not responded in a timely manner, and the Board considers this a waiver of his entitlement to another Board hearing. The Board observes that this appeal has a lengthy procedural history and was previously before the Board in August 2010, February 2011, June 2017, October 2020, and April 2021. The appeal with respect to these issues was most recently remanded by the Board in April 2021 to ensure substantial compliance with the previous remand directives and to obtain addendum medical opinions. It has since been returned to the Board for further consideration. It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran has been in receipt of a schedular 100 percent combined disability rating since April 30, 2007. The Veteran has also been in receipt of special monthly compensation under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350 (i) on account of residuals of traumatic brain injury with Alzheimer's dementia rated 100 percent and additional service-connected disabilities of bilateral tinnitus, mild gastritis with mild irritable bowel syndrome, and posttraumatic stress disorder, independently ratable at 60 percent or more from April 30, 2007. In this case, the Board is only dealing with the very limited outstanding issues that it must address under the law. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In each case where a Veteran is seeking service connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a heart murmur. The Veteran contends that his heart murmur was aggravated by his active-duty service. Upon entrance examination in December 1984, the Veteran was diagnosed with a benign heart murmur. See, e.g., May 2021 VA Examination. Pursuant to the April 2021 Board remand, a VA examination was scheduled to provide a medical opinion to address the Veteran's heart murmur. In May 2021, a VA examiner opined that the Veteran's heart murmur clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner also opined that the heart murmur was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Lastly, the examiner opined that the Veteran's heart murmur was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner was unable to confirm a current diagnosis with available records. The heart murmur diagnosis is considered historic and not a current diagnosis. Although the heart murmur was noted on entrance in 1984, records from 2007 showed no valvular abnormalities which could cause a murmur. Furthermore, an echocardiogram from 2019 showed normal results. No current diagnosis of a heart murmur exists. Therefore, no nexus or plausible secondary relationship is established. In June 2021, another VA examiner opined that it is as likely as not that the Veteran's benign systolic heart murmur preexisted military service. However, the heart murmur is as likely as not likely benign because it was not found on periodic examinations on November 6, 1988, and January 17, 1993. Furthermore, it is less likely than not that the benign systolic murmur increased in severity due to military service, or was aggravated beyond its natural progression by an in-service event, injury, or illness. Again, the murmur was most likely not significant because it was not noted on the periodic examinations in 1988 and 1993. In addition, on echocardiogram in 2014, only trace tricuspid regurgitation was found 30 years later. Trace regurgitation is not considered clinically significant. First, the Board finds that the Veteran does not have a current disability of a heart murmur. The Veteran's heart murmur noted upon his entrance examination three decades ago preexisted military service and has not shown to be a chronic condition. Even assuming, arguendo, that the Veteran had a current heart murmur disability, there is still a lack of nexus showing a heart murmur increased in severity due to his military service. Furthermore, previous VA examinations opined that a heart murmur was not proximately due to or the result of the Veteran's service-connected disabilities. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current heart murmur disability, and the claim must be denied. 2. Entitlement to service connection for Type I Chiari malformation. The Veteran contends that his Type I Chiari malformation is due to, or aggravated by, his active-duty service. In 2007, the Veteran was diagnosed with a Type I Chiari malformation. See, e.g., January 2021 VA Examination. The Board notes that the Veteran was not on active-duty service when his Chiari malformation was diagnosed. An addendum opinion was obtained in May 2021 to determine whether the Veteran's current Chiari malformation is a congenital or developmental defect, or a congenital or developmental disease. For service connection purposes, there is a distinction under the law between a congenital disease and a congenital defect. A "congenital disease" is defined as a condition capable of improving or deteriorating, whereas a "congenital defect" is defined as a condition that is more or less stationary in nature. Service connection is available for congenital diseases, but not defects, that are aggravated in service. See O'Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Pursuant to the April 2021 Board remand, a VA examination was scheduled to provide a medical opinion as to whether the Veteran's brain disability is a congenital or developmental defect, or a congenital or developmental disease. The May 2021 VA examiner determined that the Veteran's Chiari malformation Type 1 was an incidental finding that is a congenital developmental condition. The examiner was unable to specify further if the Chiari malformation is a congenital disease versus a developmental defect without resorting to mere speculation. Furthermore, a separate examiner and neurologist was not able to provide the specific answer to differentiate whether a Chiari malformation is a congenital disease or a congenital defect. In reaching this rationale, the examiner noted that the pathogenesis of congenital Chiari malformations remains the subject of debate. Multiple theories have been proposed but none of these theories can explain all the features of a Chiari Type I malformation, as it can be due to either embryological neuroectodermal or mesodermal anomalies. Isolated Chiari Type I is thought to be of mesodermal origin. Overall, the examiner found that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. Neurologist examinations and a review of the medical record show that the condition was asymptomatic. There is no evidence that the condition progressed beyond its natural progression due to military duties. Furthermore, neuropsychology testing and neurological evaluations revealed that the Veteran's cognitive conditions were not due to the Chiari malformation. Chiari Type I malformations are not typically associated with cognitive dysfunction. The examiner also noted that the Chiari malformation was less likely than not caused acutely by a trauma, such as traumatic brain injury. The Board finds the distinction between a congenital defect and congenital disease to be trivial in this case, as the Chiari malformation was not aggravated by service. If the Veteran's Chiari malformation was deemed to be a congenital or developmental defect, the May 2021 VA examiner was also asked to opine as to whether there was any superimposed disorder during the Veteran's active-duty service. Again, the distinction between a congenital defect and disease is insignificant, as the examiner opined that, while the Veteran experienced a traumatic brain injury and posttraumatic stress disorder (PTSD), the cognitive deficit progression in the Veteran's case was not found to be caused by the Chiari malformation. Instead, the Veteran's cognitive deficit was due to multifactorial cognitive etiologies such as medications and PTSD. The Board finds this examination probative because the opinion is based on a thorough review of the record. Further, the VA examiner's opinion is consistent with the record and several previous VA examinations. Consequently, the Board finds the preponderance of the evidence is against the Veteran's claim. In short, the evidence tells the Board that the Veteran's disability was not caused, or aggravated by, his active service, and was not subject to a superimposed injury during service. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.