Citation Nr: 21042125 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-09 874 DATE: July 12, 2021 REMANDED Entitlement to service connection for a heart disability, to include atrial septal defect (ASD) status post-surgical repair, is remanded. REASONS FOR REMAND The Veteran served on active duty from March to August 2002 and from May 2004 to October 2005. He also had additional inactive service. He testified before the undersigned Veterans Law Judge (VLJ) during a May 2019 videoconference hearing and a transcript is of record. This appeal was initially before the Board in August 2019, wherein the Board granted service connection for the back disability; denied service connection for a right hip disability; and remanded service connection for a heart disability and left hip disability. Subsequent to the 2019 Board remand development, in a November 2020 rating decision, the Veteran's claim for service connection for left hip disability was granted with a 10 percent rating, effective December 24, 2014. As such, this issue is no longer on appeal before the Board. Unfortunately, although the Board regrets the additional delay, another remand is necessary to ensure due process and proper development regarding the Veteran's claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the Board notes that a veteran will be considered in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran's records document that the Veteran's heart disability pre-existed his entry to active service. Therefore, the presumption of soundness does not apply to this condition. Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. That notwithstanding, VA's General Counsel has held that service connection may be granted for diseases (though not also defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. See 38 C.F.R. §§ 3.303(c), 3.306. According to the General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability (emphasis added). Thus, an opinion is required as to whether the Veteran's heart disability was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). In this case, the 2015 VA examiner failed to address the aggravation issue in terms of whether a disease or injury had been superimposed on the congenital defect, ASD, during active service. As such, the 2019 Board remand requested another medical opinion addressing this. The 2020 VA examiner opined that "deterioration of the right ventricular function is part of the natural history of ASD with high flows as was the case in this Veteran and is not caused by or permanently aggravated by the Veteran's service." The 2020 examiner further stated "the natural history of the Veteran's non-repaired ASD would have caused continued deterioration of the function of the right ventricle from the increased volume work that the right ventricle had to perform over time regardless of whether he was in the military or not." However, the examiner discounted the fact that the Veteran began having heart issues and his ASD required repair in service subsequent to being hit by a car in June 2004. The Veteran argued that "given the medical science, it is probable that the hole increased in size due to the rigorous physical demands placed on the heart. The substantial number of mentions of heart and lung issues of record show the worsening of the condition. Per the above, it is evident the condition, which was acceptable upon entry, became exercised beyond its allowance, leading to a condition requiring bypass surgery." The Veteran also testified that before entrance to service, the hole was 2.5 centimeters, but right before he had his surgery to repair in 2005, the hole had grown to 4.3 centimeters within a seven-month timeframe (following the car accident). He also testified that it was after the car accident when he had been hit by a vehicle when in a crosswalk that he began going to the doctor with heartbeat irregularity and chest pains and they ran tests and discovered the hole in his heart had grown. The Veteran's testimony is corroborated with his STRs, which indicated he was hit by a vehicle in June 2004; and in July 2004, he first began to have issues and complained of his chest pain and shortness of breath during field training. No medical doctor has discussed or provided an opinion as to whether this accident was a superimposed injury. Additionally, the 2020 examiner stating the Veteran did not have any shortness of breath or chest pain post-service is incorrect. The examiner did not consider the private medical letter from Dr. P.R. in August 2005, who noted that since the surgery, the Veteran has had shortness of breath with mild activity, even walking. Private medical records in October 2011 diagnosed ostium secundum type atrial septal defect; abnormal heart sounds; tricuspid valve disorders; and syncope and collapse with history of syncope. In January 2015, he arrived at the ER complaining of chest pain and stated that it hurts when he breaths. The pain was noted to be in the anterior aspect of the right upper chest and right breast, and he rated the severity of the pain to be 10/10. A 2015 chest X-ray revealed atelectasis/collapse of the right lower lobe and suspected pulmonary nodules in the right mid lung field. An October 2019 cardiologist diagnosed the Veteran with nonrheumatic tricuspid valve disorders; syncope; ostium secundum type atrial septal defect; and history of repair of congenital anomaly of heart. As such, a medical opinion is needed to discuss whether the Veteran's pre-existing heart disorder was aggravated by service and must adequately consider the potential of a superimposed injury and the service medical records showing reported chest pains and shortness of breath which began only after the motor vehicle accident when he was hit by a car during service. Therefore, upon remand, the AOJ should obtain an addendum opinion as to whether the Veteran's active service resulted in a superimposed injury on his congenital heart defect. The matter is REMANDED for the following action: Return the record to the VA examiner who provided the 2020 medical opinion. The record and a copy of this Remand must be made available to the examiner. If the 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following: Whether the Veteran's pre-existing heart disability was aggravated by the superimposed injury during service (i.e. the June 2004 pedestrian/vehicle hit-and-run accident in which he was the pedestrian). In other words, did this injury result in additional disability with respect to the heart condition? The examiner is advised that for purposes of VA compensation, a congenital defect is defined as a condition that is more or less stationary in nature, whereas a congenital disease is defined as a condition capable of improving or deteriorating. The examiner is asked to consider the following: Entrance examination, he was deemed fit for service despite pre-existing heart disability; The June 2004 STRs showing he was struck by a vehicle in a hit-and-run accident when he was in the crosswalk and was flipped and thrown onto nearby sidewalk; July 2004 Statement of Medical Examination and Duty Status noted a temporary disability of systolic murmur with symptoms of chest pain; July 2004 memorandum noted that the Veteran was not fit for duty long term and was not expected to return to duty. The diagnosis was chest pain, systolic murmur, palpitations, and syncope; July 2004 statement that the Veteran had a three-week history of chest pain and complaints of diaphoresis and syncope and later that month noted he would sweat, bilateral lower extremities would shake, and he had tightness in his chest with shortness of breath and at times lost consciousness; August 2004 echocardiographic study was abnormal and letter from cardiologist stated the Veteran had a history of moderate to severe tricuspid regurgitation and a history of an atrial septal defect; February 2005, ASD repaired; February 2006 sworn statement that following the hit and run in June 2004, he started experiencing chest pains and went to the clinic where he had an echo which detected a systolic murmur and ASD and his surgery was scheduled; and The Veteran's sworn testimony that before service, his hole was 2.5 centimeters, but right before he had his surgery to repair, the hole had grown to 4.3 centimeters following the car accident. He also testified that it after the car accident he began going to the doctor with heartbeat irregularity and chest pains and they ran tests and discovered the hole in his heart had grown. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.