Citation Nr: 21041675 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-28 756 DATE: July 9, 2021 REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for scar tissue surgery is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1969 to March 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2018 when it was remanded to the Agency of Original Jurisdiction (AOJ) to obtain Social Security Administration records. 1. Entitlement to service connection for a heart disability is remanded. The Veteran's service treatment records reflect a heart murmur in service. The Veteran received a VA examination for his heart disability in February 2013. The examiner provided a negative opinion. In her rationale, she stated that mitral valve prolapse was typically congenital and it was most likely that the Veteran had this condition prior to military service. The Board notes that the presumption of soundness attaches as the Veteran's entrance examination is normal. In order to rebut the presumption of soundness, it must be shown with clear and unmistakable evidence that the Veteran's heart disability both preexisted service and that his condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38U.S.C. §1111; 38C.F.R. §3.304 (b). The United States Court of Appeals for Veterans Claims has explained that clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). In the absence of clear and unmistakable evidence that a disability existed prior to service, the Veteran should be afforded a VA examination to assess the etiology of his heart disability and to determine whether there is clear and unmistakable evidence that the Veteran was not sound upon entrance into service. On remand, an opinion should be provided as to the presumption of soundness and should comply with the correct legal framework. 2. Entitlement to service connection for a lumbar spine disability is remanded. 3. Entitlement to service connection for a cervical spine disability is remanded. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for colon cancer is remanded. 6. Entitlement to service connection for scar tissue surgery is remanded. The Board finds that additional development is needed prior to adjudication to the issues on appeal. The record reflects that the Veteran has been diagnosed with or underwent treatment for a lumbar spine disability, a cervical spine disability, hypertension, colon cancer, and scar tissue surgery. He has contended these conditions were related to service. There is insufficient evidence, however, for the Board to render a determination on his claims, as the Veteran has not been afforded VA examinations for these conditions. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record, 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). McLendon, 20 Vet. App. at 83. As such, based on the record before the Board, a remand for VA examinations is necessary to determine the nature and etiology of the Veteran's disabilities. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding military personnel records, outstanding VA medical records, all outstanding private treatment records, and with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Provide the Veteran with a VA examination by an appropriate VA clinician to determine the etiology of the Veteran's heart disability. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether: (a.) It is clear and unmistakable (undebatable) that the currently diagnosed heart disability pre-existed the Veteran's active duty service. The examiner is advised that the Veteran's lay statements alone, including those in the service treatment records, are insufficient to rebut the presumption of soundness. (b.) If so, the examiner should opine as to whether it is clear and unmistakable that the pre-existing heart disability was not aggravated during the Veteran's active military service. (c.) If not, the examiner should state whether it is at least as likely as not (i.e., a 50 percent probability or more) that any heart disability currently diagnosed or diagnosed during the pendency of the appeal, was caused or incurred as a result of the Veteran's active duty service to include the heart murmur in his service treatment records. A complete rationale for all opinions must be provided. The Veteran is competent to report symptoms capable of lay observation both during and after active duty service. 3. Schedule an examination and obtain an opinion to determine the nature and etiology of the Veteran's lumbar spine disability, cervical spine disability, hypertension, colon cancer, and scar tissue surgery. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his lumbar spine disability, cervical spine disability, hypertension, colon cancer, and scar tissue surgery were incurred in, aggravated by, or etiologically related to his military service. (Continued on the next page) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.