Citation Nr: 22011129 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 16-09 874 DATE: February 25, 2022 ORDER Entitlement to service connection for a heart disability, to include atrial septal defect (ASD) status post-surgical repair, is denied. FINDING OF FACT The evidence is not nearly equal but clearly against the Veteran's pre-existing heart disability being aggravated beyond natural progression during service, to include the car accident or physical demands of service, as these circumstances were not considered superimposed injures that resulted in significant cardiac trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION 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 a 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 a 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. The claim for service connection for a heart disability was remanded again in a July 2021 Board decision for an addendum opinion. That development having been completed to the extent possible, the matter is again before the Board. The 2021 addendum opinion is adequate, as it was predicated on a substantial review of the record and in consideration of the Veteran's complaints, symptoms, and medical history. As such, VA has substantially complied with the remand directives. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The Veteran contends he is entitled to service connection for his heart disability; specifically that his condition of atrial septal defect (ASD) pre-existed service and he claims the condition worsened/was aggravated due to his military service. First, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Second, 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). Here, 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. As such, any in-service aggravation of the pre-existing condition is considered as sufficient basis for service connection, unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. Specifically, once the evidence has established the presence of a pre-existing condition, the Board must first determine whether there was a worsening of the disability during service, and if so, it must also determine whether any worsening of this disability constitutes an increase in the disability, which must be permanent in nature. Browder v. Brown, 5 Vet. App. 268, 271 (1993). However, 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. In this case, by way of history, the Board determined that 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 point. 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." While the Board finds the 2020 opinion persuasive, the examiner did not consider that the Veteran had heart issues and his ASD required repair in service subsequent to being hit by a car in June 2004. The Veteran specifically 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." He also testified in the 2019 hearing testimony 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 indicate he was hit by a vehicle in June 2004, and he complained of his chest pain and shortness of breath during field training. As such, the 2021 Board remand requested an opinion to consider and discuss whether the Veteran's pre-existing heart disorder was aggravated by service and consider the potential of a superimposed injury and the records showing reported chest pains and shortness of breath after he was hit by a car. In July 2021, an examiner provided an extensive review of the Veteran's service and post-service medical records. The examiner noted the Veteran's condition pre-existed service, but ultimately opined that the Veteran's "ASD cardiac condition was improved during military service as the ASD was not present and cardiac function was normal at time of separation." The examiner further discussed the Veteran's contentions that he began having heart problems following the June 2004 car accident but opined that "it is not probable the...ASD was aggravated by military service, including [motor vehicle] collision." The examiner also noted that while the Veteran "developed symptoms of exercise chest pain, palpitations, [headaches], syncope, dyspnea and diaphoresis... [this] is consistent with natural history of symptoms arising in the 3rd to 4th decade." As part of the rationale, the examiner cited to medical literature that "defects diagnosed later than childhood seldom decrease in size and many significantly increase in size. This is consistent with the Veteran's history evidenced." The examiner considered the car accident and the Veteran's statements that the rigorous physical demands of service caused the ASD to increase in size, but the examiner stated that the MRI in August 2004, following the June 2004 accident, "showed no evidence of any structural abnormality from [the] hit and run injury to cause the ASD to increase in size and symptoms from trauma as the Veteran suggests. The development of exercise-induced symptoms is well within the normal progression for the ASD condition as literature reports and would not increase in severity without significant cardiac trauma, which the evidence does not show." (emphasis added). The examiner, after consideration of the arguments that the ASD increased between entrance of service to the surgery to repair, cited to medical literature that: the size of the ASD is variable when measured by echocardiogram. Much like a chest X-ray can change dimensions during the inspiratory [and] expiratory respiratory cycle, so to the size of the ASD can appear to change depending where in the stroke cycle the measurement is taken. That is, the ASD at end of heart contraction will appear smaller than just before the heart contraction begins when the cardiac tissue is being stretched by being filled with blood. Finally, the examiner discussed the Veteran's arguments, but found that "etiology is a complex medical question and not determinable by lay observation." The examiner found the Veteran competent to attest to his experience in service and describe symptoms and thus gave them consideration, but opined that the medical records and medical literature show to the contrary of the Veteran's contentions. As noted above, the examiner found that the totality of the evidence shows that "the ASD cardiac condition was improved during military service as the ASD was not present and cardiac function was normal at time of separation." In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, cited to medical literature, considered the Veteran's contentions and all possible factors as requested, and furnished a reasoned analysis for his conclusions. The Board therefore attaches significant probative value to this opinion. There is no other competent medical opinion to the contrary. While the Board recognizes the Veteran's assertions that his heart defect was aggravated by service and is competent to testify as to events that occurred in military service, the Veteran is not competent to conclude that any pre-existing heart condition was aggravated by his service. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, cardiac issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The cardiac issue in this case is complex and an opinion on the course of the condition requires medical expertise and interpretation of diagnostic testing; it is not susceptible to lay opinions. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for his heart condition. Further, the Veteran has not submitted, nor does the evidence provide any medical evidence or opinion that is controverting or contrary to this 2021 VA opinion. As this opinion is supported by a clear, detailed rationale, which is responsive to and in substantial compliance with the July 2021 Board remand directives, the Board finds that this is the most probative medical opinion of record and is dispositive of this claim. Finally, the Board notes there are two representative arguments. First, the 2021 argument stated that "it is evident the condition, which was acceptable upon entry, became exercised beyond its allowance, leading to a condition requiring bypass surgery. Simply stated, the appellant went through an extensive exam upon entry and was deemed fit for service. The entirety of his life pre-service, the condition was palatable and managed." The representative also argued that there is no concrete evidence that the surgery would be needed but for the Veteran enlisting in service. However, as discussed above, the VA examiner cited to medical literature that "while the Veteran developed symptoms of exercise chest pain, palpitations, [headaches], syncope, dyspnea and diaphoresis...[this] is consistent with natural history of symptoms arising in the 3rd to 4th decade." The examiner also cited to medical literature that heart defects "diagnosed later than childhood seldom decrease in size and many significantly increase in size" and noted that the Veteran's history indicates a normal progression of his pre-existing ASD and that he did not have a significant cardiac trauma. The Board also considered the Veteran's representatives argument in the January 2022 brief. However, the arguments therein were not entirely accurate for this Veteran's history. For example, the representative argued VA "fails to show clear and unmistakable evidence of a heart disability that pre-existed active-duty military service." This is wholly incorrect, and even the prior representative brief conceded this point. In addition, the representative then argued that "the VA examination fails to show no permanent aggravation of the claimed heart disability during active-duty military service. As a matter of fact, the examination reports drew (sic) direct correlation (whether consequential or coincidental is not clear) between a pedestrian [versus] vehicle motor vehicle accident during active-duty military service." This is also not accurate; as discussed above, the examiner opined the opposite: that the medical evidence did not show the accident caused a significant cardiac trauma to permanently aggravate or worsen the heart disability. Accordingly, the Board finds the opinion of the VA examiner who looked at the Veteran's specific medical history carries far more evidentiary weight and is significantly probative. Thus, the evidence is quite clearly against the Veteran and not in approximate balance and not 'nearly equal'; therefore, the benefit of the doubt rule has no application. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, No. 2020-2067 (Fed. Cir. December 2021). As such, service connection for a heart disability on any basis is not warranted. 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.