Citation Nr: 21008025 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-31 792A DATE: February 11, 2021 ORDER Entitlement to service connection for renal cancer with kidney removal is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability individual unemployability (TDIU) rating, for the period prior to March 1, 2013, is denied. REMANDED Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. The Veteran’s renal/kidney cancer did not manifest during service nor is it etiologically related to service, to include as due to exposure to Agent Orange (AO) and/or claimed malaria. 2. The Veteran’s PTSD is not shown to cause total occupational and social impairment. 3. For the period prior to March 1, 2013, the evidence reflects the Veteran was employed in a substantially gainful occupation and was not in a protected or sheltered work environment. CONCLUSIONS OF LAW 1. The criteria for service connection for renal cancer with kidney removal have not been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 3. For the period prior to March 1, 2013, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from October 1969 to August 1972, to include service in the Republic of Vietnam. He is a recipient of the Combat Action Ribbon. The Veteran requested a videoconference hearing in September 2014. He withdrew his hearing request in June 2017. During the pendency of the appeal, the Veteran’s PTSD was increased from 50 percent disabling to 70 percent effective January 27, 2010; his date of claim. He has continued his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). A total disability individual unemployability rating (TDIU) was also awarded during the appeal. The effective date of the award was March 1, 2013. He has not expressed disagreement with that award. However, the issue of entitlement to prior to March 1, 2013 is still pending to the extent that it is intertwined with the increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). For that reason, the TDIU issue will be addressed herein. This case was remanded in June 2019 for further development, including obtaining any outstanding treatment records. VA treatment records have subsequently been associated with the claims file, and the Veteran was sent a letter in November 2019 requesting that he submit any records that he wished to be considered or authorize VA to obtain said records. To date, no response has been received. As such, the Board finds there has been substantial compliance with the remand directives with regard to the claims for service connection for renal cancer, increased rating for PTSD, and entitlement to a TDIU prior to March 1, 2013. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for renal cancer with kidney removal, to include as secondary to Agent Orange (AO). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361(Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303 (b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309 (a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Cardiovascular-renal disease has been interpreted as such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309(e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6) (iii), 3.307(e). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). These diseases include ischemic heart disease including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a Veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). The Veteran seeks service connection for renal/kidney cancer, which he believes is related to in service exposure to the AO and/or malaria. The Veteran’s DD-214 shows that he served in Vietnam for 11 months. Therefore, he is presumed to have been exposed to AO. Initially, the Board notes that renal cell carcinoma is considered a chronic disease listed under 38 C.F.R. § 3.309 (a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). Comparatively, the Board emphasizes that renal cell/kidney cancer is not a disability subject to presumptive service connection due to herbicide exposure. However, notwithstanding the lack of herbicide presumption, a claimant may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042(Fed. Cir. 1994). Given the above, the Board’s below analysis will consider entitlement to service-connection on both a presumptive and direct basis. Turning to the record, diagnosis of right renal/kidney cancer with s/p right radical nephrectomy and chronic kidney disease, left, stage III is confirmed by way of a June 2020 VA examiner. As to service, service treatment records (STRs) are negative for evidence of diagnosis of renal or kidney disabilities, let alone, cancer or related symptoms. In addition, August 1972 separation examination reveals the Veteran’s G-U system was deemed clinically normal. The Veteran also has not provided competent evidence, or even lay assertions, indicating he had symptoms that first manifested during service. As to the Veteran’s claimed injuries of AO and malaria, AO has already been conceded. Additionally, although STRs do not appear to reflect in-service malaria the Board will concede the condition for the purposes of the below analysis. Such a concession is predicated on the Veteran’s submission of correspondence by both his private physician, Dr. H.L., M.D. and his purported in-service care provider, Hospital Corpsman, M.S., that support he was treated for malaria in-service. That said, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s renal/kidney cancer began in service, showed chronic symptoms in service, manifested to a compensable degree within one year of service, or that there were continuous symptoms since service. First, as stated above STRs are negative for symptomatology. Second, November 1972 post-service VA Disability Examination revealed a clinically normal G-U system. Third, VA treatment records post-service clearly reflect the primary onset of the Veteran’s condition began in 2005, which is 33 years after service separation. Fourth, the Veteran has not provided any evidence, lay or medical, that his symptoms have been present and continuous since service separation, or that the symptoms manifested prior to 2005. Finally, as will be discussed below, a June 2020 VA examiner has adequately opined that the condition began decades post-service and was unrelated to service. Given this collective evidence, presumptive service-connection is not supported. As to the question of direct service connection, the record also weighs against the claim. Initially, the Board notes that a review of the record does not indicate that a physician has opined that the Veteran’s renal/kidney cancer was due to herbicide exposure and/or claimed exposure to malaria. However, in June 2020, a VA examiner opined that the Veteran’s kidney disabilities were less likely than not due to service. In brief, the examiner explained that the claims file lacked evidence correlating the Veteran’s condition to service to include exposures therein. In so doing, the examiner emphasized that treatment medical records, STRs, and diagnostic testing failed to reveal any objective evidence which would support such a correlation. Rather, the evidence established the condition manifested decades post service. The examiner then explained that the cause of renal/kidney cancer is not specifically known but there are, per medical literature, risk factors for developing the condition. Although AO is not listed a risk factor, the Veteran’s diagnosed non-service-connected disabilities of hypertension and kidney stones are risk factors. The examiner also noted that the Veteran was at risk for developing the cancer as it is associated with aging. Finally, the examiner emphasized that the Veteran’s owned private care provider in February 2010 told him there was no “definitive correlation” between agent orange exposure and renal/kidney cancer. In summary, the examiner found that the record, to include medical literature, lacked any evidence supporting a correlation between the Veteran’s claimed renal/kidney cancer disability and his service. The Board finds this opinion highly probative and well rationalized against the evidence of record and current medical literature. There is no competent opinion to the contrary. As a result of the above evidence, the claim for service connection must also be denied on a direct basis. Lastly, while the Veteran has contended that the currently diagnosed renal/kidney cancer was related to exposure to herbicides and/or malaria during service, the Board does not find that under the facts of this case the Veteran is competent to provide evidence of an etiological nexus between renal/kidney cancer and service. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The etiology of the Veteran’s renal/kidney cancer involves complex medical etiological questions dealing with the origin and progression of the renal/G-U system, and such disabilities are diagnosed primarily on clinical findings and physiological testing. Given the above, the Veteran is not competent to opine on whether there is a link between renal/kidney cancer and active service because such medical opinions require specific medical knowledge and training that the Veteran has not been shown to possess. For the above reasons, the Board finds that the weight of the evidence is against direct and presumptive service connection. As the preponderance of the evidence is against service connection, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran seeks an increased rating for his PTSD currently rated 70 percent disabling. The appeal stems from a claim for increased rating filed on January 27, 2010, the relevant period on appeal is from one year prior to the date of claim forward. Following consideration of the record, entitlement to a rating in excess of 70 for PTSD is not warranted for any portion of the period on appeal. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411 General Rating Formula for Mental Disorders, which provides: A 100 percent disability rating is warranted when a psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent disability rating is warranted when a psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran's social and occupational impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442(2002). The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, and therefore the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board notes that the revised Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which, among other things, eliminates the use of Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Here, the matter was certified for appeal in May 2015. The DSM-IV, which still considers the GAF, will therefore not be considered. The Veteran underwent VA examination in March 2010. He reported worsening anxiety, depression, nightmares, and poor sleep. He reported working full-time as a probation officer and having an adversarial relationship with his supervisor resulting in an altercation. Social interaction was noted as “frequently inappropriate.” He reported generally isolating himself at work with few positive relationships and not many friends. He reported seeing his family members occasionally but being anxious among people. He reported being married three times and currently being married for ten years. He noted easily losing his temper with his wife and for a period sleeping in separate rooms due to arguments. He noted not seeing his daughter or stepchildren often. He reported no real friends generally. Symptoms were anhedonia, feeling hopeless, helpless, and worthless, impaired concentration, focus, and memory, depressed mood, and loss of libido. On mental status examination, the Veteran was groomed, friendly, and cooperative. His attention was poor, with variable distractibility, he was oriented times four, with unimpaired memory for remote events and date. His cognition was intact, and he had a general fund of knowledge. His communication was unimpaired, he denied hallucinations, delusions, inappropriate behavior, obsessive, or ritualistic behavior that interfered with routine activities. His thought processes were circumstantial, and he had difficulty with goal-directed thinking. His insight was poor, and he understood little of his symptoms. He reported having suicidal thoughts over the last year and discussing it with his psychiatrist. He reported a desire to hurt people at work who try to pressure him to retire. “I get so angry I just want to go into there and go at them.” The examiner opined that the Veteran’s symptoms were moderate. He also had moderate to some serious impairment with reduced reliability and productivity due to symptoms such as: flattened affect; impairment of concentration and focus; impaired abstract thinking; disturbances of mood and motivation; and difficulty in establishing and maintaining effective work and social relationships. In February 2013, the Veteran’s supervisor submitted correspondence essentially confirming that the Veteran was retiring early because he found his psychiatric impairments to be too impairing to continue working. On March 2015 VA examination, a VA examiner opined that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. On examination he reported being unemployed. He reported leaving his work as a probation officer because he was removed from the field. He reported engaging in isolation and avoiding social situations. Symptoms were depressed mood, anxiety, suspiciousness, panic attacks three times or more a week, chronic sleep impairment, mild memory loss, impaired judgment disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including a work or work like setting, self-isolation, crowd avoidance, and suicidal ideation. On behavioral observation, the Veteran was described as reserved with dark glasses. He was noted to have suicidal ideation without intent and/or plan to hurt himself and/or others. On April 2016 VA examination, the Veteran was described to have occupational and social impairment with reduced reliability and productivity. He reported still being married to his third spouse and having a somewhat distant relationship with his children. He indicated being retired since 2013. Symptoms were depressed mood, anxiety, irritability, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. Behavioral observations on examination revealed a neatly dressed and groomed pleasant individual. The Veteran’s thinking was linear and rational, and he denied suicidal and homicidal ideations. Treatment medical records during the appeal do not contradict the above. Instead, they confirm the Veteran has maintained a relationship, albeit at times strained, with his current wife throughout the period on appeal. Although records note brief separations, the couple has repeatedly reconciled. The record also supports that the Veteran’s spouse has been a strong support system for the Veteran throughout the appeal, regularly accompanying him to medical appointments. He has also maintained a relationship with at least some of his children throughout the appeal. The preponderance of the evidence does not support total occupational and social impairment during this time period to warrant a 100 percent rating. From the outset, the Board emphasizes that the Veteran is already in receipt of a TDIU rating from the period of March 1, 2013, the day following his last day of employment, forward. As a result, the Board concedes occupational impairment. However, here, the record lacks evidence of total social impairment. In that regard, the Veteran has maintained relationships, although strained and erratic, with his wife and some of his children as noted by his own reports and VA treatment records. Given the above, the Veteran has maintained some degree of social functioning and therefore a 100 percent rating is not warranted. Moreover, when looking to the 100 percent rating criteria, the record does not support a manifestation of gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, inability to maintain activities of daily living, disorientation to time or place, or memory loss of close relatives or own name. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.2; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, here, the Board finds the severity, frequency, and duration of the symptoms reported by the Veteran during this time period most closely represent the symptoms listed in the criteria for a 70 percent rating. Such a finding is also congruent with the expert determinations made by VA examiners. TDIU TDIU will be awarded when a Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a). To qualify for a TDIU on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation because of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id. The United States Court of Appeals for the Federal Circuit held that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Gleib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381(2013). As such, the focus of the findings obtained on examination is not on whether the Veteran is unemployable due to his service-connected disability or disabilities, but, rather, the functional impairment caused solely by his service-connected disability or disabilities in concert. Marginal employment is not considered “substantially gainful employment” and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census (Census Bureau), as the poverty threshold for one person. Faust v. West, 13 Vet. App. 342(2000). Marginal employment may also be held to exist on facts found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Ortiz-Valles v. McDonald, 28 Vet. App. 65(2016). A Veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his employment is sheltered. Cantrell v. Shulkin, 28 Vet. App. 382(2017). The Board does not have jurisdiction to award extraschedular TDIU in the first instance. Rather, it must refer the claim to the Director of Compensation Service (the Director) for extraschedular consideration. See 38 C.F.R. § 4.16 (b); see also Floyd v. Brown, 9 Vet. App. 88 (1996) (noting that the Board cannot assign an extraschedular rating in the first instance). The Board has jurisdiction to decide an extraschedular TDIU claim if, and only if, the Director determines that an extraschedular evaluation is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009). 3. Entitlement to a TDIU for the period prior to March 1, 2013. As indicated in the introduction, the Board retains jurisdiction for the claim of TDIU prior to March 1, 2013. See Harper v. Wilkie, supra. The period on appeal for TDIU is from one year prior to the date of increased rating claim, here January 27, 2010. Therefore, the relevant period before the Board is from January 27, 2009 until March 1, 2013. The Veteran’s service-connected disabilities during this time period include: PTSD rated as 50 disabling from January 26, 2005 and 70 percent disabling from January 27, 2010; right elbow superficial SFW residuals, rated as 20 percent disabling from August 26, 1972; and right buttock scaring from August 26, 1972 and acneiform dermatitis from July 15, 1983, each rated as noncompensable. The Veteran’s combined disability rating is 60 percent from January 26, 2005 and 80 percent from January 27, 2010. See 38 C.F.R. § 4.25. Thus, the schedular requirements for TDIU have been met from January 27, 2010 but no earlier. See 38 C.F.R. § 4.16 (a). The next question is whether the Veteran was rendered unemployable during the aforementioned periods. The Board finds he was not. A review of the Veteran’s VA Form 21-4192, confirms that the Veteran’s earnings between 2009 and 2013 were consistently above the federal poverty guidelines for those years. The poverty guideline for one person ranged from $10,830 in 2009 to $11,490 in 2013 under the United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://aspe.hhs.gov/prior-hhs-poverty-guidelines-and-federal-register-references (last accessed February 8, 2021). Additionally, in his application for total unemployability, the Veteran reported that he last worked on February 28, 2013. See March 2016 VA Form 21-8940. Thus, the record does not reflect that for any portion of the period on appeal he was unemployed or earned below the poverty line. Additionally, the record does not reflect that he worked in a sheltered or protected position. From the outset, the Veteran has not asserted that his position, as a probation officer, was sheltered or protected. Although the Veteran noted a change in his role, from a supervisory field position to a solo desk position he characterized this change as a demotion and not an accomodation. Correspondingly, in February 2013 correspondence, the Veteran’s supervisor, D.Q., did not attest to a sheltered work environment. To the contrary, D.Q. indicated that the Veteran was expected to work his normal 8-hour days and at times more when the situation depended on it. Per. D.Q., the Veteran was also expected for a period to go to a firing range despite it aggravating his PTSD. That said, the Board acknowledges D.Q.’s statement that the Veteran did not take advantage of all the possible extra trainings/travel opportunities afforded to him with his position. However, D.Q. characterized these opportunities as “perks” of his employment not requirements. Given the above, the Board finds that the record does not reflect that the Veteran’s position constituted sheltered or protected employment such as to allow for a TDIU rating. In summary, the Veteran concedes that he was employed until February 28, 2013. There is no evidence, to include lay assertion, that his employment was marginal for any portion of the appeal. Therefore, the threshold matter of substantially gainful employment operates as a bar to a TDIU prior to March 1, 2013. In rendering this determination, the Board emphasizes that per the Veteran’s own application for TDIU, he was not rendered too disabled to work until 2013. Accordingly, entitlement to a TDIU prior to March 1, 2013 is denied. REASONS FOR REMAND 4. Entitlement to service connection for a heart disability, to include as due to AO exposure. The Veteran seeks service connection on the basis that his heart condition was due to service, to include AO exposure and/or exposer to malaria therein. This matter was remanded for an addendum opinion to clarify the nature and etiology of the Veteran’s claimed condition. In June 2020 a VA examiner, in pertinent part, confirmed that the Veteran suffers from a current diagnoses of a congenital bicuspid aortic heart valve. The examiner explained that the Veteran’s other diagnosed conditions stemmed from his congenital condition. However, the examiner did not specify whether the condition was a disease or defect. This distinction is important for VA purposes. While disability compensation benefits administered by VA are available for congenital diseases, they are not available for congenital defects. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature,” and VA does not consider congenital or developmental defects “diseases or injuries” within the meaning of applicable statutes and regulations. VAOPGCPREC 82-90; 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. Notwithstanding this distinction, service connection may be granted if the evidence shows aggravation of the congenital or developmental defects during service on account of a superimposed disease or injury. See Carpenter v. Brown, 8 Vet. App, 240 (1995). As a result, a remand is required. The matter is REMANDED for the following action: Obtain an addendum opinion addressing whether the Veteran’s bicuspid aortic valve constituted a congenital disease or a congenital defect. (*) The term “defect” encompasses structural or inherent abnormalities or conditions that are more or less stationary in nature. (*) The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown (*) If the examiner determines that the Veteran’s aortic valve abnormality is a congenital defect, opine on whether the Veteran now has additional disability due to an in-service disease or injury superimposed upon his aortic valve abnormality. (continued on the next page) (*) If the examiner determines that the Veteran’s aortic valve abnormality is a congenital disease, opine whether the disability (i) clearly and unmistakably existed prior to his active service and (ii) clearly and unmistakably was not aggravated by service, to include the Veteran’s exposure to herbicide agents and/or claimed exposure to malaria therein. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.