Citation Nr: 21023534 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-01 133 DATE: April 20, 2021 REMANDED Entitlement to service connection for a stroke disorder, to include as secondary to service-connected migraine headaches, is remanded. Entitlement to service connection for seizures, to include as secondary to a stroke disorder is remanded. Entitlement to service connection for a kidney disorder, to include as secondary to a stroke disorder is remanded. Entitlement to service connection for a bladder disorder, to include as secondary to a stroke disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1991 to September 1997. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2020 and December 2020, the Board remanded the appeal for further development. Regrettably, additional development is still necessary.   1. Entitlement to service connection for a stroke disorder, to include as secondary to service-connected migraine headaches, is remanded. In January 2020, the Board remanded Veteran’s appeal in order to obtain a medical opinion as to whether the Veteran’s claimed stroke disorder was related to service. In so doing, the Board noted that the Veteran’s service treatment records demonstrated severe headaches, memory loss and incidents of blurred vision. The Board further noted that the Veteran was service connected for migraine headaches. Following the Board’s remand, the Veteran underwent VA examinations by a neurologist as requested in the January 2019 remand, however, the examiner did not adequately discuss whether the Veteran’s in-service symptoms described above indicated that the Veteran’s stroke disorder had begun in service. Instead, the examiner found that the Veteran had a cardiovascular accident due to atriovenous malformation (AVM). The examiner stated that because cerebral AVMs were typically congenital, the Veteran’s stroke was therefore unrelated to his service. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2019); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA's General Counsel has opined that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). Further, controlling law dictates that a congenital defect is distinguished from a congenital disease in that "the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). 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. Quirin, supra, at 395. As the Board is unable to make such medical determinations, the case was again remanded for additional VA examinations and medical opinions. The Veteran was afforded additional VA examinations in January 2021. With regard to the Veteran’s claimed stroke disorder, the VA examiner did not indicate whether the claimed condition “clearly and unmistakably existed prior to service,” as directed in the December 2020 remand. Rather, the examiner stated that cerebral AVMs are considered to be congenital defects in the intracranial vasculature, and “[i]t can be assumed that the [V]eteran’s cerebral [AVM] was present at birth and existed prior to the [V]eteran’s entry into the military.” In addition, in response to the question of whether the claimed condition was a developmental defect or disease, the examiner stated that “[b]ecause the brain and its blood vessels are formed together during embryological development, abnormal blood vessel formation can also be associated with abnormal brain tissue. In some cases, cerebral AVM’s can result in hemorrhage causing stroke (as in the Veteran’s case). In that case, the AVM congenital defect led to neurological injury/complications, and therefore, could be considered a congenital ‘disease’ for adjudication purposes.” The Board finds that the language used by the January 2021 VA examiner in his opinion is speculative and inconclusive, and therefore, inadequate for evaluation purposes. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's stroke disorder is necessary. 38 C.F.R. § 4.2 (2019). On remand, the claims file should be, if possible, returned to the January 2021 VA examiner to provide more thorough findings as to whether the Veteran’s stroke disorder is related to his in-service headaches, memory loss and blurred vision symptoms, as to whether the Veteran’s cerebral arteriovenous malformation was a congenital disease or defect, whether the presumption of soundness is rebutted, and whether his condition was aggravated during service. 2. Entitlement to service connection for seizures, to include as secondary to a stroke disorder is remanded. 3. Entitlement to service connection for a kidney disorder, to include as secondary to a stroke disorder is remanded. 4. Entitlement to service connection for a bladder disorder, to include as secondary to a stroke disorder is remanded. Finally, because a decision on the remanded issue above could significantly impact a decision on the issues of service connection for seizures, a bladder disorder and a kidney disorder, the issues are inextricably intertwined. A remand of the claims for these issues is required, and the VA examiner is asked to address service connection for these disorders in the examination requested below. The Board, by 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. Return the claims file, if possible, to the January 2021 VA examiner, or provide a neurologist with the claims file for review to determine the etiology of the Veteran’s stroke disorder, seizures, kidney disorder, and bladder disorder, including whether the Veteran’s stroke disorder is related to his military service or his service-connected migraine headaches. The examiner must review the relevant evidence in the claims file, including a complete copy of this REMAND. The examiner should specifically answer the following questions: (a) Is there clear and unmistakable (i.e. undebatable) evidence that a congenital arterial condition, described by the VA examiner as cerebral arteriovenous malformations, existed prior to the Veteran's entry into military service? (b) If a pre-existing arterial condition is identified by evidence, is the condition a congenital "defect" or a congenital "disease"? To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a static condition not considered capable of improving or deteriorating. (c) If such is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (d) If such is a disease, was it aggravated beyond the natural progression during his military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. (e) If so, was the increase in disability clearly and unmistakably (i.e. undebatable) due to the natural progress of the disease? (f) For any stroke condition that is not a congenital defect or disease, is it at least as likely as not (50 percent or greater probability) that the condition was incurred during the Veteran's service or is otherwise causally related to his service, including the headaches, memory loss, and blurriness of vision that the Veteran experienced in service? (g) If service connection is warranted for the Veteran’s stroke disorder, is it at least as likely as not that the Veteran’s seizures are proximately due to or aggravated beyond their natural progression by the Veteran’s stroke disorder? (h) If service connection is warranted for the Veteran’s stroke disorder, is it at least as likely as not that the Veteran’s kidney disorder is proximately due to or aggravated beyond its natural progression by the Veteran’s stroke disorder? (i) If service connection is warranted for the Veteran’s stroke disorder, is it at least as likely as not that the Veteran’s bladder disorder is proximately due to or aggravated beyond its natural progression by the Veteran’s stroke disorder? In providing these opinions, the examiner must adequately consider and address the pertinent evidence of record, to include: the Veteran's lay statements and hearing testimony; the Service Treatment Records, specifically, an April 1996 medical history report in which the Veteran reported blurriness in the left eye, and a history of headaches, a November 1966 service treatment record wherein the Veteran reported headaches for three weeks, and a July 1997 report of medical history which showed a history of headaches, short term memory loss and frequent trouble sleeping. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After the development described above, and any additionally indicated development has been completed, review the expanded record and readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.