Citation Nr: 21025020 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-33 623 DATE: April 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, including anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1992 to March 1994. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for an acquired psychiatric disorder, including anxiety, is remanded. The Board previously remanded this claim in July 2019 to obtain all outstanding treatment records, to provide the Veteran appropriate notice regarding his reported personal assault stressor, and so he could then undergo a VA examination to identify all current acquired psychiatric disorders, or, if not determined that he presently has one, to reconcile that finding with earlier diagnoses in the record in terms of whey they have resolved, and to determine the likelihood any disorder confirmed to exist is related or attributable to his service – especially to his documented personal assault in service. To this end, the Veteran had this requested VA examination in February 2020. The examiner diagnosed bipolar disorder and indicated it was less likely than not caused by or incurred during the Veteran’s service. The examiner explained that the Veteran’s bipolar disorder, instead, is a biological condition and most likely due to his family history of it. If a condition is not "noted" upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran's service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Congenital or developmental "defects" automatically rebut the presumption of soundness and, therefore, are considered to necessarily have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such "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). However, VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested during or was aggravated by service). See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. 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.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry, 340 F.3d at 1385-86 (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"). Notably, however, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. If it is determined 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, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA's Office of General Counsel also has 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 that either first manifest themselves during service or that preexisted service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; 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. Thus, additional medical comment is needed clearly addressing the nature of the Veteran’s bipolar disorder – including especially in terms of whether a congenital disease versus defect since this determination governs the method of analysis. Additionally, since the February 2020 examination, the Veteran has been granted service connection for a traumatic brain injury (TBI). So, supplemental comment also is needed regarding whether his bipolar disorder is implicated – including caused or aggravated by his TBI. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain supplemental comment (an addendum opinion) concerning the nature and etiology of the Veteran’s bipolar disorder. Specifically, more comment is needed in response to the February 2020 VA examiner’s indication that the Veteran’s bipolar disorder is a biological condition most likely due to his family history of it. So, the examiner should clarify whether: a) the Veteran’s bipolar disorder is a congenital “defect” or instead a congenital “disease”? b) If it is determined the Veteran’s bipolar disorder is a congenital “defect”, then is it at least as likely as not (a probability of 50 percent or greater) there was a superimposed disease or injury in service that resulted in worsening of his bipolar disorder? c) If it is determined instead that the Veteran’s bipolar disorder is a congenital “disease”, then is there clear and unmistakable evidence that it preexisted his service? d) If the answer to c) is yes, then is there also clear and unmistakable evidence that the preexisting congenital disease was not aggravated during or by the Veteran’s service, including by his service connected TBI? e) If the answer to d) is no, then is it at least as likely as not the Veteran’s bipolar disorder is directly related to an in-service injury, event, disease, including to his service connected TBI? In providing responses to these questions, the examiner must address the Veteran’s lay statements regarding the history of his condition (regardless of whether characterized as a congenital defect or disease). Rationale for the opinion is essential, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. (Continued on the next page)   If the commenting clinician cannot provide the requested opinion without resorting to mere speculation, it must be so stated, but the clinician also must provide the reasons why an opinion would require speculation. As examples, the clinician must indicate whether there is any further need for information or testing to make a determination, whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.