Citation Nr: 21012534 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-32 589 DATE: March 4, 2021 ORDER Service connection for vertigo, as secondary to the service-connected sinusitis, is granted. Service connection for nosebleeds, as secondary to the service-connected sinusitis, is granted. Service connection for a heart disorder, diagnosed as an ostium secundum atrial septal defect, is denied. FINDINGS OF FACT 1. The Veteran has a current disability of vertigo. 2. The vertigo was caused by the service-connected sinusitis. 3. The Veteran has a current disability of nosebleeds. 4. The nosebleeds were caused by the service-connected sinusitis 5. The Veteran has a current heart disability, diagnosed as an ostium secundum atrial septal defect. 6. The ostium secundum atrial septal defect is a congenital defect and was not subject to a superimposed disease or injury during service that resulted in additional disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for vertigo, as secondary to the service-connected sinusitis, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for nosebleeds, as secondary to the service-connected sinusitis, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 3. The criteria for service connection for ostium secundum atrial septal defect have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 1153, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(c), 3.306, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to July 1977. This appeal comes to the Board of Veterans’ Appeals (Board) from March 2011, April 2013, and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A claim for service connection for a sinus disorder was received in August 2010. The March 2011 rating decision granted service connection for sinusitis and assigned an initial noncompensable (0 percent) disability rating effective August 11, 2010. The April 2013 rating decision granted a 30 percent disability rating for sinusitis effective November 21, 2012. A claim for service connection for a “hole in heart” was received in May 2015. The August 2015 rating decision, in pertinent part, denied service condition for a heart disorder. In October 2017, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge in Indianapolis, Indiana. A transcript of the hearing is of record. In October 2017, the Veteran submitted a letter from a VA doctor previously not associated with the file. While the most recent supplemental statement of the case does not include review of this evidence, in October 2017 on record at the Board hearing, the Veteran waived agency of original jurisdiction (AOJ) consideration of the additional evidence. These matters were previously before the Board in February 2018. The Board denied service connection for the heart disorder and granted a 30 percent rating for the sinusitis from August 11, 2010. The Veteran appealed the February 2018 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC).      A February 2018 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. With regard to the claim for service connection for the heart disorder, the parties agreed that the Board should have obtained additional VA treatment records and should have discussed whether the heart condition is a congenital disease as opposed to a congenital defect. With regard to the claim for a higher rating for the sinusitis, the parties agreed that the Board should have considered extraschedular ratings for sinusitis to include the symptoms of vertigo (dizziness) and nosebleeds. In June 2019, the Board remanded the two issues pursuant to the February JMPR. The Board remanded to obtain additional VA treatment records, obtain a VA examination opinion from a cardiologist to help determine whether the heart disorder, diagnosed as ostium secundum atrial septal defect, is a congenital disease or defect, and for VA examination with opinion as to whether vertigo, dizziness, and nosebleeds were related to the service-connected sinusitis. VA treatment records have since been associated with the record and VA examinations and opinions were rendered in May 2020 and December 2020. While the JMPR has remanded the issue of entitlement to referral for extraschedular adjudication pursuant to 38 C.F.R. § 3.321(b)(1) to consider the symptoms of vertigo, dizziness, and nosebleeds related to the service-connected sinusitis, in the instant decision, the Board is granting secondary service connection (38 C.F.R. § 3.310) for the vertigo (dizziness) and nosebleeds, finding these distinct disabilities to be secondarily related to the service-connected sinusitis. This schedular rating remedy of secondary service connection under 38 C.F.R. § 3.310 is the remedy that was readily available to recognize the claimed symptoms, and the grant of secondary service connection fully grants service connection for all the claimed symptoms, rendering moot any questions of extraschedular referral or rating for the same symptoms. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection is available for congenital diseases, but not defects, that are aggravated by service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In this regard, the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c); see also Quirin at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term “disease” in 38 U.S.C. §§ 310, 331, and the term “defects” in 38 C.F.R. § 3.303 (c), as being mutually exclusive. “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. See VAOPGCPREC 82-90 (citing Dorland’s Illustrated Medical Dictionary 385 (26th ed. 1974)). On the other hand, the term “defect,” viewed in the context of 38 C.F.R. § 3.303 (c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between “disease” and “defect,” indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). Service connection is generally precluded by regulation for “defects” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). To establish service connection for a congenital defect, the evidence must show superimposed disease or injury during service. See 38 C.F.R. § 4.9; VAOPGCPREC 82-90. If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin at 396-97. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA’s Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. A veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness; rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin, at 397 (citing Wagner, 370 F.3d at 1096). This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Service Connection for Vertigo as Secondary to the Service-Connected Sinusitis The Veteran contends that he experiences vertigo (dizziness) related to the service-connected sinusitis. After review of all the evidence, lay and medical, the evidence shows that the Veteran has a current disability of vertigo (dizziness). See May 2017 VA Treatment Records. The evidence is at least in equipoise on the question of whether the vertigo was caused by the service-connected sinusitis. According to the December 2020 VA examination opinion, the VA examiner opined that the vertigo is least as likely as not proximately due to the service-connected sinusitis. The VA examiner reasoned that vertigo is caused by a buildup of mucus in the eustachian tube that runs from the inner ear to the throat – a tube that is responsible for maintaining balance. The VA examiner explained that, when the sinuses are inflamed during a sinus infection and can no longer drain properly, it can cause dizziness. The Board resolves reasonable doubt in favor of the Veteran to find that the vertigo was caused by the service-connected sinusitis and, as such, the criteria for service connection for the vertigo, as secondary to the service-connected sinusitis disability (38 C.F.R. § 3.310) are met. The vertigo (dizziness) will be recognized as a separate and distinct service-connected disability under the VA rating schedule, and will be rated using the VA rating schedule. See 38 C.F.R. § 4.87, Diagnostic Code 6204 (providing ratings for peripheral vestibular disorders, rating on the basis of dizziness and staggering). 2. Service Connection for Nosebleeds as Secondary to the Service-Connected Sinusitis The Veteran contends that he experiences nosebleeds related to the service-connected sinusitis. The Veteran has a current disability of nosebleeds. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (“Personal knowledge is that which comes to the witness through the use of his senses – that which is heard, felt, seen, smelled, or tasted.”) The evidence is at least in equipoise on the question of whether the nosebleeds were caused by the service-connected sinusitis. According to the May 2020 VA examination opinion, the VA examiner opined that the nosebleeds are least as likely as not proximately due to the service-connected sinusitis. The VA examiner reasoned that sinus infections can cause occasional epistaxis (bleeding from the nose). The VA examiner reasoned that frequent blowing of the nose can cause mechanical shearing of the blood vessels, which in turn causes nosebleeds. The VA examiner noted that treatment records show occasional episodes of nosebleeds during sinus infections. The Board resolves reasonable doubt in favor of the Veteran to find that the nosebleeds were caused by the service-connected sinusitis disability and, as such, the criteria for service connection for the nosebleeds, as secondary to the service-connected sinusitis (38 C.F.R. § 3.310), are met. The nosebleeds will be recognized as a separate and distinct service-connected disability under the VA rating schedule, and will be rated by analogy using the VA rating schedule. See 38 C.F.R. § 4.97, Diagnostic Code 6599. 3. Service Connection for a Congenital Heart Defect The Veteran has a current heart disability, diagnosed as an ostium secundum atrial septal defect. See April 2020 VA Examination. The Veteran contends that the heart disorder is congenital but does not concede that it is a defect. See October 2017 Transcript. The weight of the evidence shows that the Veteran’s heart disorder – ostium secundum atrial septal defect – is a congenital defect, and is not a disease. According to an April 2020 VA examination, the VA examiner explained that atrial septal defect is a birth defect of the heart in which there is a hole in the wall (septum) that divides the upper chambers (atria) of the heart. The Medline Plus Medical Encyclopedia explains that atrial septal defect (ASD) is a heart defect that is present at birth (congenital). See https://medlineplus.gov/ency/article/000157.htm (last visited March 2, 2021). The Board finds that the presumption of soundness does not apply because the ostium secundum atrial septal defect is not a disease or injury within the meaning of 38 U.S.C. §§ 1110 and 1111. The weight of the evidence is against finding that there was any superimposed disease or injury during service that resulted in additional disability. While the service treatment records note complaints of chest pain, these notations were not associated with any superimposed disease or injury to the heart. In May 1976, the Veteran complained of anterior chest pain, lasting three weeks. The military medical examiner noted no apparent distress, measured blood pressure at 124/82 and a pulse at 90, found a clear respiratory system and that the heart was grossly normal, and then treated the Veteran with robitussin and sudafed. In October 1976, the Veteran complained of chest pain, but the military medical examiner found that the chest was clear and that the heart had normal sinus rhythm (NSR). In November 1976 in-service dental records, the Veteran affirmatively reported that he did not experience shortness of breath, palpitation of the heart, or high blood pressure. The Veteran complained of chest pain again in March 1977, but the physical examination (PE) was within normal limits (WNL). An April 1977 service treatment record notes that the heart had normal sinus rhythm and an electrocardiogram (EKG) within normal limits. At service separation in June 1977, the Veteran did not report any past or present cardiovascular problems and affirmatively reported that he did not experience shortness of breath, pain or pressure in the chest, palpitation or pounding heart, heart trouble, or high or low blood pressure. See June 1977 Report of Medical History. The military medical examiner found that the heart and vascular systems were in normal condition. See June 1977 Service Separation Examination. (Continued on the next page)   Based on the foregoing, the Board finds that the weight of the evidence is against a finding of service connection for ostium secundum atrial septal defect. The weight of the evidence shows no superimposed injury to this preexisting congenital defect. As the preponderance of the evidence is against the claim, the appeal must be denied. 38 U.S.C.§ 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.