Citation Nr: 21008315 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-26 954 DATE: February 16, 2021 REMANDED Service connection for degenerative disk disease of the lumbar spine is remanded. Service connection for a heart disability, to include an enlarged heart and coronary artery disease (CAD), is remanded. Service connection for high blood pressure (“hypertension”) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to January 1971. The question of whether the Veteran had an additional period of active duty from September to November 1990 is addressed in the remand below. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for degenerative disk disease of the lumbar spine, service connection for high blood pressure, and service connection for an enlarged heart. In August 2014, VA received the Veteran’s Notice of Disagreement (NOD). In May 2017, the RO issued a Statement of the Case (SOC). In May 2017, VA received the Veteran’s VA Form 9 appeal to the Board. In May 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. 1. Entitlement to service connection for degenerative disk disease of the lumbar spine. The Veteran seeks service connection for his currently diagnosed degenerative disk disease of the lumbar spine. As an initial matter, the Veteran’s representative has challenged the competency of a May 2014 VA examiner, a family nurse practitioner (FNP), for the Veteran’s degenerative disk disease of the lumbar spine. At the May 2020 Board hearing, the undersigned requested clarification from the representative as to whether she was challenging the competency of the particular examiner who conducted the May 2014 examination, or whether she was challenging the competency of any FNP to conduct adequate examinations and provide adequate medical opinions related to orthopedic diseases and injuries. Specifically, she indicated her belief that a doctor who practices in the area of orthopedics would have a different opinion as to nexus than any FNP; and, she felt that as an FNP, the May 2014 examiner was not qualified to give any medical opinions. The representative did not challenge the specific qualifications of the particular FNP. While she believes that an orthopaedist would come to a different conclusion as to nexus, and provide a more complete rationale for a medical opinion, there is no indication that the representative is challenging the FNP’s own personal credentials or that any other FNP would have provided an adequate opinion. To this end, has sought release of the FNP’s curriculum vitae. See May 2020 Board hearing transcript; April 2020 correspondence. The question of “whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” See Francway v. Wilkie, 930 F.3d 1377, (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the veteran challenges the competency of a medical examiner, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. at 1381. Rather than challenging the competency of the specific VA examiner in this case, the representative’s objection appears to be based solely on the examiner’s credentials as a nurse practitioner. To the extent that the representative has challenged the ability of any nurse practitioner to provide findings regarding the current manifestations of the Veteran’s bilateral knee disabilities, there is no indication that any greater level of specialized training is required for these types of examinations. As a general matter, there is no requirement that a medical examination be conducted by a physician. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)). The Court has already rejected the contention that a nurse practitioner is not competent to either conduct a VA examination or to render a competent medical opinion. See Cox, 20 Vet. App. at 569. Specifically, the Court held that “[a] nurse practitioner, having completed medical education and training, [ ] fits squarely into the requirement of [38 C.F.R.] § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions.” Id. A registered nurse practitioner, such as the one who conducted the Veteran’s VA examination in May 2014 has “advanced education and clinical training in a specialized area of health care” and “can diagnose, prescribe, and perform procedures.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1326 (31st ed. 2007). As a nurse practitioner is qualified to examine patients and diagnose disorders, the Board finds that the FNP was competent to evaluate the etiology of the Veteran’s degenerative disk disease of the lumbar spine. Further, there is no evidence of record to support the representative’s assertion that a nurse practitioner, generally, is not competent to provide medical findings addressing the Veteran’s degenerative disk disease of the lumbar spine, nor is there evidence that the specific FNP who performed the VA examination was not competent to provide such findings. The examiner addressed all of the necessary criteria in evaluating the Veteran’s degenerative disk disease of the lumbar spine in the VA examination report. Thus, the Board finds that the May 2014 examiner was competent to conduct the VA examination that evaluated the etiology of the Veteran’s degenerative disk disease of the lumbar spine. Turning to the facts of the case, the Veteran asserts that his current degenerative disk disease of the lumbar spine is related to a 1990 fall from a vehicle during active duty. See May 2020 Board hearing transcript. At the outset, a handwritten note in the Veteran’s service personnel records appears to show that the Veteran was ordered to active duty in September 1990 by presidential proclamation. See record of military assignments uploaded on December 11, 2013. However, there is no DD Form 214 of record for the claimed period of active duty between September and November 1990. Notwithstanding, service treatment records (STRs) from October 1990 indicate “complaints of back pain lower and between the shoulder” with “no history of trauma” given. The examining physician provided a diagnosis of mild lower back pain and prescribed Motrin to treat the pain. See STRs dated October 17, 1990. In a February 1991 report of medical history, the Veteran denied recurrent back pain. See STRs dated February 20, 1991. VA treatment records show that the Veteran sought VA treatment for lower back pain in August 1992. However, an x-ray of the lumbar spine “failed to demonstrate any significant abnormality.” X-ray report dated August 12, 1992. In a January 1995 report of medical history completed during a period of reserve service, the Veteran reported lower back pain relating to a “prostate problem and pinched nerve in lower back and neck” with “no particular injuries recalled.” STRs dated January 7, 1995. The Veteran reported private treatment for lower back pain from the 1990s to 2006 by Dr. C.G.; however, no records pertaining to that period of treatment have been associated with the claims file. See May 2014 VA examination report. Private treatment records and VA treatment records from 2006 onwards indicate treatment for degenerative arthritis, lumbar spinal stenosis, and bulging disks. See Dr. F., referral response letter dated September 15, 2006; Dr. R., primary care note dated August 23, 2006. The September 2006 primary note reflect Veteran complained of “back and bilateral leg pain for fifteen years.” During the May 2020 Board hearing, the Veteran testified that his lower back pain had greatly worsened within the past year and “nothing helps anymore.” The Veteran received an initial VA examination for his degenerative disk disease of the lumbar spine in May 2014. The examiner opined that the Veteran’s current degenerative disk disease of the lumbar spine was less likely than not related to service. Specifically, she noted that reports of medical history from October 1970, March 1983, November 1986, and October 1987 were “negative for any abnormal spine condition.” Furthermore, the examiner noted the October 1990 back injury and private treatment records from September 2006 showing “positive lumbar disc herniation.” Nevertheless, she concluded that, “military findings are inconsistent with current clinical presentation of degenerative disc disease of the lumbar spine, which is more likely related to a natural part of the aging process.” However, the examiner failed to discuss the January 1995 report of medical history indicating a history of a pinched nerve in the back. Moreover, her opinion that the Veteran’s degenerative disk disease of the lumbar spine is more likely age-related is conclusory and unsupported by any medical literature or deeper analysis. Given the above, and in light of new testimony by the Veteran during the May 2020 Board hearing and the addition of extensive relevant medical records since the May 2014 VA examination, remand is warranted for a new VA examination and opinion which address the full medical record and provide a fully articulated supporting analysis. Finally, the Veteran has identified medical and chiropractic treatment for his back beginning in the 1990s. See May 2020 Board hearing transcript; May 2014 VA examination report. There is no evidence that the RO has attempted to locate these records. Accordingly, on remand, the RO should attempt to locate these private treatment records and any outstanding VA treatment records (last uploaded in November 2013). Furthermore, as the Veteran’s claimed period of active duty between September and November 1990 has yet to be verified, the RO should attempt to verify that period of service, to include requesting that the Veteran provide his DD Form 214 for that period. 2. Entitlement to service connection for a heart disability, to include an enlarged heart and CAD. The Veteran seeks service connection for an enlarged heart. At the outset, the Veteran’s claim is expanded to include all heart-related disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Notably, the Veteran was diagnosed with nonobstructive CAD following an August 2008 angiography. See cardiology procedure report dated August 22, 2008. Furthermore, the Veteran does not have service in the Republic of Vietnam and does not otherwise allege exposure to herbicides. STRs from November 1968 reflect that a “functional heart murmur” was noted prior to entrance into service. STRs dated November 5, 1968. A chest x-ray taken prior to entrance revealed that the Veteran’s heart was on the upper limits of normal size. See STRs dated November 12, 1968. In September 1970, the Veteran reported “on and off” chest pain and shortness of breath for 6 months, with recent worsening. See STRs dated September 4, 1970. Although the Veteran continued to report chest pain and shortness of breath into October 1970, an examination dated that month identified “no active pulmonary disease.” STRs dated October 12, 1970. Turning to records from the Veteran’s period of reserve service, a report of medical history from February 1991 identifies a history of pain or pressure in the chest and high blood pressure. See STRs dated February 5, 1991. A report of medical history from January 1995 revealed a history of irregular heart rhythm. See STRs dated January 7, 1995. Finally, a June 1995 physical profile reflects diagnoses of high blood pressure and cardiac ischemia. See STRs dated June 4, 1995. As discussed above, a heart abnormality was noted upon entry into service. Furthermore, there is some suggestion in the record that the heart abnormality may have been congenital. Specifically, a November 1968 evaluation of the Veteran’s cardiac symptoms also noted that the Veteran’s “appearance suggests Marfan’s syndrome.” STRs dated November 12, 1968. Congenital or developmental defects are not “diseases or injuries” within the meaning of applicable statutes and regulations. See 38C.F.R. §3.303(c), 4.9; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003). Therefore, congenital or developmental defects are not diseases or injuries for the purposes of service connection and service connection may only be granted by establishing that an additional disability that is related to service has been superimposed upon the congenital defect. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1995). In contrast, disability benefits may be awarded for congenital diseases. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Generally, a congenital disease, “by its very nature, preexisted the claimant’s military service,” and service connection for disability due to such disease typically turns on “whether manifestations of the disease in service constituted ‘aggravation’ of the condition.” VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (Oct. 30, 1990). In determining whether a disorder is disease or defect, the rule is that “a congenital or developmental condition that is progressive in nature that can worsen over time is a disease rather than a defect.” O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). If the heart abnormality noted upon entrance into service is neither a congenital defect nor disease, then the issue turns on whether aggravation occurred during active service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran has not yet received a VA examination for his heart disability. VA must provide an examination when the record: (1) contains competent evidence of a current disability, (2) indicates that the signs and symptoms of the disability may be associated with active service, and (3) does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is competent evidence of a current disability, an indication that the current disability may be associated with active service, and insufficient evidence to decide the claim, remand is warranted for an initial VA examination for the Veteran’s heart disability. 3. Entitlement to service connection for hypertension. Per the Veteran’s testimony before the Board in May 2020, the Veteran contends that his hypertension is secondary to his heart disability. Therefore, the claim of service connection for hypertension is inextricably intertwined with the claim for a heart disability and must be remanded pending further development of the heart disability claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Furthermore, no VA examination has yet been provided for the Veteran’s hypertension. As there is competent evidence of a current disability, an indication that the Veteran’s hypertension may be associated with the Veteran’s heart disability (remanded above), and insufficient evidence to decide the claim, on remand, the RO should provide a VA examination and opinion for the Veteran’s hypertension. McLendon, 20 Vet. App. at 79. The matters are REMANDED for the following action: 1. Verify, through appropriate channels, whether the Veteran had a period of active duty between September and November 1990, to include requesting that the Veteran provide a copy of his DD Form 214 verifying this period of active duty. 2. Obtain and associate with the claims file all of the Veteran’s outstanding VA treatment records, including any VA treatment records dated since November 2013; and, with appropriate authorization, all private treatment records identified by the Veteran as relevant to the pending claim on appeal. All actions to obtain the requested records should be documented fully in the claims file. 3. Obtain a VA examination and opinion regarding the nature and etiology of the Veteran’s degenerative disc disease of the lumbar spine. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. After a complete review of the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s degenerative disk disease of the lumbar spine is related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided and relevant treatise evidence should be cited, where appropriate. In particular, the examiner should discuss the reported injury in October 1990 (described as a fall from a moving vehicle), the January 1995 report of medical history noting a history of pinched back nerve, and the Veteran’s statements regarding continuity of symptoms and treatment from October 1990. 4. Obtain a VA examination and opinion regarding the nature and etiology of any current heart disability, to include an enlarged heart, CAD, and hypertension. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. All necessary tests should be performed. After a review of the claims file and examining the Veteran, the examiner is asked to address the following: (a.) Clearly identify all cardiac disabilities, including, but not limited to, an enlarged heart, CAD, and hypertension. (b.) With respect to the heart murmur and enlarged heart noted prior to entry in November 1968, whether these symptoms are due to a congenital defect. (c.) If the answer to (b) is positive and the examiner determines that the Veteran’s heart murmur and enlarged heart are due to a congenital defect, then the examiner is asked to provide an opinion on whether there was a superimposed disease or injury during active military service. (d.) If the answer to (b) is negative, then whether the Veteran’s preexisting heart murmur and enlarged heart were at least as likely as not (a 50 percent probability or greater) aggravated during active military service. (e.) Regarding the hypertension, the examiner should opine whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s hypertension had its onset during a period of active duty, or, is as likely as not proximately due to or aggravated by his other cardiac disabilities. In particular, the examiner should consider November 1968 in-service description of a heart murmur, enlarged heart, and possible Marfan’s syndrome, STRs from October and November 1970 showing unexplained chest pain and shortness of breath of approximately 7 months in duration, and the June 1995 physical profile describing hypertension and cardiac ischemia. A rationale for all opinions expressed should be provided with reference to any supporting data, if appropriate. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.