Citation Nr: 21032748 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-44 085 DATE: May 27, 2021 ORDER Entitlement to service connection for an enlarged heart is denied. REMANDED Entitlement to service connection for chronic low back pain, to include as due to service-connected S/P excision of pilonidal cyst, is remanded. FINDING OF FACT The weight of the evidence demonstrates that there is no current diagnosis of an enlarged heart during the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for an enlarged heart have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to March 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). Along with a claim for service connection for a foot disorder, these issues were previously before the Board in December 2018 when the request to reopen the claims was granted, and these issues were remanded for further development. That Board decision also granted service connection for a psychiatric disability. In an April 2020 rating decision, the RO effectuated the December 2018 grant for service connection for unspecified depressive disorder with anxious distress with an evaluation of 70 percent effective February 11, 2014, and also granted service connection for bilateral flat foot, metatarsalgia, hallux valgus, hallux rigidus and plantar fasciitis with an evaluation of 50 percent effective December 18, 2013. Development for the heart and back claims was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for an enlarged heart Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At a June 2019 VA examination, the Veteran asserted that they believe they have had an enlarged heart since active duty service. The Board finds that there is not a current disability for which service connection can be granted. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). During the June 2019 examination, the examiner found no current diagnosis, and noted that they were unable to find any evidence of a documented cardiomegaly or enlarged heart. The examiner stated that there is no objective evidence of any heart condition at this time. The examiner explained that chest x-rays have always shown the heart to be within normal limits. The examiner acknowledged findings obtained during acute illness in January 1994 when the Veteran did not take a deep breath which gave the impression of borderline enlargement but stated that this was an artifact finding. Artifact findings are misrepresentations of tissue structures produced by medical imaging. The examiner cited to other treatment records to support their finding. For instance, September 1979 service treatment records note that there were no heart problems, and that the heart was not enlarged; July 1985 VA treatment records note that the heart was borderline enlarged in generalized fashion; a December 1990 echocardiogram showed no results on form; August 1991 x-rays showed that the heart was in the upper normal limit in size with normal vasculature; March 1995 films found no cardiac enlargement; September 1995 records showed normal heart size and vasculature; and a June 2019 echocardiogram showed no enlargement. Without a showing of a current disability, the claim for service connection for an enlarged heart must be denied. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. Regarding the Veteran's statements that he has a current disorder manifested by an enlarged heart, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, while the Veteran is competent to provide his lay description of symptoms, he is not competent to diagnose or opine on medical etiology for complex medical questions requiring specific medical knowledge and training. See 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). This case involves complex medical matters and requires specific cardiovascular testing and imaging studies to confirm a diagnosis. The question of whether the Veteran has a current disorder manifested by an enlarged heart requires objective medical evidence, which, in this case, according to the most probative evidence of record (the June 2019 VA examination report), is absent. The Board acknowledges, as did the June 2019 VA examiner, that the record reflects several occasions on which it was indicated that the Veteran had or may have had an enlarged heart (e.g., November 1983 treatment note reflecting a chest x-ray noting that the heart "may" be enlarged; July 1985 chest x-ray study showing borderline cardiomegaly; April 1997 chest x-ray showing heart was borderline enlarged, etc.). However, the Board also notes multiple subsequent imaging studies which show a normal heart size, as also noted by the June 2019 VA examiner. Moreover, the Board has placed the highest probative value on the opinion of the June 2019 VA examiner that there is no current diagnosis of enlarged heart or cardiomegaly or any other heart condition. The examiner conducted a thorough physical examination and interview of the Veteran, reviewed the Veteran's claims file, including his service treatment records and post-service treatment records, and cited to specific treatment records in support of his opinion that there is no current heart condition that can be service-connected. Further, at the June 2019 VA examination, the Veteran denied experiencing any symptoms attributable to a heart condition with any level of physical activity, weighing against a finding of any functional impairment due to a heart condition. Accordingly, the first element of service connection the presence of a current disability is not met, and the claim of entitlement to service connection for heart enlargement is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for chronic low back pain, to include as due to service-connected S/P excision of pilonidal cyst, is remanded. Remand is required for substantial compliance with the December 2018 Board remand directives, to include an addendum VA medical opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The December 2018 Board remand instructed the examiner to determine the etiology of any current low back disorder, and to provide an opinion on the likelihood that each low back disability is related to the service-connected pilonidal cyst, to include whether it is aggravated beyond its natural progression by the service-connected disability. The examiner was also instructed to address the December 2012 examiner's statement that Reflex Sympathetic Dystrophy (RSD) like symptoms around the surgical site may contribute to the low back pain. Finally, the examiner was instructed to consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of the symptoms. The Veteran underwent a new VA examination in June 2019 wherein the examiner found diagnoses of lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and degenerative disc disease (DDD). During the examination, the Veteran asserted an alternate theory of entitlement. The Veteran reported that while in service they noticed back pain after falling off a truck while it was moving. The Veteran stated that they were on a 2.5-ton truck going out on field duty, that they were wearing their gear when this happened, and that the pain has gotten worse since. The examiner opined that there is no evidence of Complex Regional Pain Syndrome (CRPS), the new name for RSD, at the pilonidal scar site. The examiner stated that the scar is well-healed, with normal skin vascularity and temperature, and with no paleness, sweaty cool presentation, or thinning of the skin. The examiner noted that the scar is sensitive and tender to touch but was otherwise within normal limits. The examiner stated that they were unable to find any literature describing similar cases, with the closest being a post-operative syndrome involving spinal surgery and some overlap with CRPS, but that this would not apply in this case. The examiner stated that there is no evidence of complications from the surgical procedure to excise the pilonidal cyst. The examiner here appears to have focused solely on the portion of the December 2018 remand directives that instructed them to address the December 2012 examiner's findings of possible RSD. The examiner failed to address any of the diagnoses noted on examination, including lumbosacral strain, degenerative arthritis of the spine, IVDS, and DDD, as instructed by the December 2018 remand. Further, the conclusion that there were no complications from the surgical procedure to excise the cyst is not enough to address both causation and aggravation for each of the diagnosed disabilities. Finally, as noted above, the Veteran asserted a new theory of entitlement to service connection on a direct basis during the examination. The examiner failed to address either that statement, or whether the Veteran was entitled to service connection on a direct basis. Accordingly, remand is required for an addendum VA medical opinion. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the low back disorder from an appropriate specialist. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) For each current low back disability found to be diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disability had onset in, or is otherwise related to, active service. (b) For each current low back disability found to be diagnosed, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disability is caused by the service-connected S/P excision of pilonidal cyst. (c) For each current low back disability found to be diagnosed, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disability is aggravated by the service-connected S/P excision of pilonidal cyst. (d) In providing the above-requested opinions, the examiner must address the following: 1) the December 2012 examiner's statement that RSD-like symptoms around the surgical site may contribute to the low back pain; and 2) the Veteran's June 2019 statement that they experienced back pain from falling off a moving truck during service. T. SHERRARD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.