Citation Nr: 21006032 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-02 077 DATE: February 3, 2021 ORDER Entitlement to service connection for a heart disability is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT The evidence of record does not reflect any diagnosed, undiagnosed, or other qualifying heart disability during the period on appeal. CONCLUSION OF LAW The criteria for Entitlement to service connection for a heart disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1992 to June 1996. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in July 2019. The hearing transcript is associated with the claims file. The appeal was last remanded by the Board in November 2019 for additional development. Regrettably, more development is still necessary for the Veteran’s claims for entitlement to service connection for cervical spine and lumbar spine disabilities. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives in regard to the Veteran’s claimed heart disability and thus, no further action in this regard is warranted. Id. Entitlement to service connection for a heart disability, to include on a secondary basis The Veteran contends that she experiences heart palpitations that may be due to her Chiari I malformation or her post-traumatic stress disorder (PTSD). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). A May 2013 VA examiner’s report noted a diagnosis of tachycardia secondary to anemia. A May 2014 VA treatment record notes that the Veteran thought her PTSD may be causing additional symptoms including increased heart rate. A July 2014 VA treatment record diagnosed the Veteran with a history of heart palpitations. Another July 2014 VA treatment record notes that a stress test revealed no abnormalities other than some premature atrial contractions. An October 2018 VA treatment record notes that a three-week heart monitor did not find any abnormalities. A June 2020 VA treatment record notes that a twenty-four-hour heart monitor was negative for any abnormalities. The Veteran was afforded a VA examination in January 2020. The January 2020 VA examiner noted that the Veteran did not and never had a diagnosed heart condition. The examiner explained that the Veteran participated in holter monitoring, an echocardiogram, and stress testing without a finding of any heart diagnosis or etiology for the Veteran’s palpitations. As previously mentioned, the first prong of a service connection claim is a current disability. Although the Veteran regularly reported experiencing heart palpitations, the preponderance of the evidence does not demonstrate that the Veteran had a heart disability during the pendency of the appeal. The Board acknowledges a note documenting a prior diagnosis of tachycardia due to anemia, however, subsequent records noted that no etiology nor diagnosis had been determined for the Veteran’s reported heart palpitations. The vast majority of the Veteran’s treatment records show that the Veteran does not have a diagnosed disability related to her reported symptoms. The U.S. Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board must deny the claim. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for a lumbar spine disability is remanded. The evidence of record indicates that the Veteran has Chiari I malformation, a congenital disability, which may cause neck and back pain and stiffness. However, the evidence of record does not indicate whether the Veteran’s Chiari I malformation is a congenital defect or a congenital disease. Congenital or developmental defects are not considered “diseases or injuries” within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2017); O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O’Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395; VAOGC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty). Only congenital “defects,” as opposed to congenital “diseases,” are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O’Bryan, 771 F.3d at 1380; VAOPGCPREC 82-90 (July 1990) (holding that “service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin”). Congenital defects are by definition static in nature. O’Bryan, 771 F.3d at 1380 (observing that a hereditary condition that cannot change is a “defect” and is not subject to the presumption of soundness under 38 U.S.C. § 1111 ); VAOPGCPREC 67-90 (“congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration”). By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O’Bryan, 771 F.3d at 1380 (“[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect,” even if it ceases to progress); VAOPGCPREC 67-90 (“A disease...even one which is hereditary in origin, is usually capable of improvement or deterioration”). A November 2019 Board remand asked that a VA examiner opine on remand as to whether the Veteran’s Chiari I malformation was a congenital defect or a congenital disease. A January 2020 VA examiner noted that the Veteran’s Chiari I malformation was a congenital disability but did not opine as to whether it was a congenital defect or a congenital disease. The January 2020 VA examiner also noted that Chiari I malformation occurs during the development of the fetus but on rare occasions can be acquired. The VA examiner determined that it was less likely than not that the Veteran acquired Chiari I malformation during service. In addition, the examiner stated that the Veteran’s Chiari I malformation, which the Veteran claims is manifested by neck and back pain, did not increase in severity during active duty service. However, Chiari I malformation was not noted upon the Veteran’s entry into active duty service. Therefore, a heightened standard applies to disabilities that may have pre-existed entry into active duty service but were not noted on the Veteran’s entrance examination. Upon review of the record, the Board finds that further evidentiary development is necessary for proper adjudication of the claim. Specifically, the AOJ must obtain an addendum opinion determining whether the Veteran’s congenital Chiari I malformation, which the Veteran claims is related to her diagnosed back and neck disabilities, is a defect or a disease for VA purposes. If the examiner finds that it is a congenital disease, then he or she must determine whether it was aggravated by the Veteran’s service (i.e. whether there is an increase in disability beyond the natural progress of the disease due to service). If the examiner finds that it is a congenital defect, then he or she must determine whether a neck or lumbar back disability was superimposed. The examiner must provide a detailed rationale for any conclusions rendered. The Board in this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran’s Chiari I malformation and neck, and lumbar disabilities. The Veteran’s claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: (a.) Is the Veteran’s Chiari malformation a CONGENITAL DISEASE (i.e. capable of worsening and improvement) OR a CONGENITAL DEFECT (i.e. static in nature)? Explain why it is one versus the other. (b.) If the Chiari malformation is a CONGENITAL DISAESE, did the Veteran have this DISEASE prior to entering military service in October 1992, i.e., a pre-existing brain disability? Why or why not? (c.) If the Chiari malformation is a CONGENITAL DISEASE that pre-existed service, did this condition permanently increase in severity during her active military service from October 1992 to June 1996? Why or why not? (d.) If there was a permanent increase in severity of a pre-existing congenital brain disorder (Chiari malformation) during service, it is “undebatable” this permanent increase in severity was due to the natural progression of the disability? Why or why not? (e.) If in the alternative, you determine that the Veteran’s Chiari malformation did not manifest prior to service, is it at least as likely as not (50 percent or more probability) that the Chiari malformation is related to his active military service? Why or why not? (f.) If the Chiari malformation is a CONGENITAL DEFECT, did the Veteran experience a superimposed disease or injury during service which resulted in additional disability? (g.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s CERVICAL disability either began during or was otherwise caused by the Veteran’s military service, to include the in-service motor vehicle accidents? Why or why not? (h.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s LUMBAR disability either began during or was otherwise caused by the Veteran’s military service, to include the in-service motor vehicle accidents? Why or why not? (Continued on the next page)   2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford her a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.