Citation Nr: 22012275 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-30 534 DATE: March 3, 2022 ORDER Entitlement to service connection for sickle cell trait anemia is denied. REMANDED Entitlement to service connection for premature ventricular contraction (PVC) is remanded. FINDING OF FACT The competent and credible evidence of record persuasively establishes a finding that the sickle cell anemia is a congenital defect; the defect was not subject to a superimposed disease or injury during active service. CONCLUSION OF LAW The criteria for service connection for sickle cell trait have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). These issues were previously before the Board in February 2019 and June 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that in a June 2021 statement, the Veteran withdrew their former representation in regard to any VA matters. In a January 2022 statement, their former representative also wrote that they are withdrawing their representation of the Veteran. Service Connection Entitlement to service connection for sickle cell trait anemia 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). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is available for preexisting conditions aggravated during service beyond the course of their natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The law provides that Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such disorders that are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). History of pre-service existence of disorders recorded at the time of examination does not constitute a notation of such disorders but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); see also Miller v. West, 11 Vet. App. 345, 348 (1998) the presumption of soundness upon entry may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record). When no preexisting condition is noted upon entry into service, a veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Secretary must rebut the presumption of soundness with "clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). If the presumption of soundness is rebutted, and the claimed disability is therefore found to have preexisted service, the Veteran can only bring a claim for aggravation of that disability, not for service connection for the disability itself. A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). For VA compensation purposes, a congenital or developmental defect cannot be the basis for an award of service connection absent a superimposed disease or injury. See 38 C.F.R. §§ 3.303(c), 4.9. Analysis The Veteran alleges that sickle cell anemia began during service and has existed since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A February 2020 VA examination indicates a diagnosis of sickle cell trait anemia. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 1988 service treatment records (STRs) include a notation of anemia. December 1991 STRs note sickle cell. September 2000 service treatment records indicate a reported history of anemia. April 2015 private treatment records (PTRs) note that the Veteran reported always having been anemic. In a December 2016 statement, the Veteran's mother asserted that the Veteran was diagnosed with sickle cell while in service, and that everybody in the family was shocked. In a January 2017 statement, the Veteran reported that they were informed they had sickle cell in December 1991. The Board finds these statements competent as they are capable of lay observation. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds these statements to be credible as they are corroborated by the STRs. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Third, the Board finds that the evidence of record does not support a finding that the sickle cell is related to active service. The Veteran underwent a VA examination in February 2020 where the examiner provided a negative nexus opinion. The examiner stated that the records do not report any signs of sickle cell trait nor sickle cell anemia. They indicated that 1993 STRs did note that the Veteran was taking iron for anemia, but there were no supporting lab results. The examiner also stated that that there was no mention of anemia at separation. They further noted that 2015 PTRs indicate anemia, but that there were no lab results included with the report. On the examination report, the examiner stated that the cause of the anemia was genetic. The Veteran underwent a VA examination in November 2021 where the examiner provided a negative nexus opinion. They noted the STRs indicating sickle cell, and explained that sickle cell trait is an inherited disorder, and is not something that can be acquired in service. The examiner stated that it has been established in medicine that sickle cell is a congenital condition. They explained that sickle cell trait is diagnosed through genetic testing and will remain constant. Here, the examiner found that the sickle cell is clinically asymptomatic. In sum, the examiner opined that the sickle cell clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by disease or injury during service, and was not subject to a superimposed disease or injury. The Board affords the November 2021 VA medical opinion great probative value as it reflects a thorough review of the record and the Veteran's lay statements, and is supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board affords less probative value to the February 2020 VA medical opinion. While the examiner made the same finding as the November 2021 examiner that the sickle cell is congenital, the examiner incorrectly stated that sickle cell was not found during service, and anemia was not mentioned at separation. As found above, however, the STRs do include a notation of sickle cell, and anemia was indeed mentioned at separation. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, the Board notes the contradictory aspect of this opinion, given that the examiner stated that the sickle cell is congenital, but also that it did not exist during service. Significantly, the Department of Veteran Affairs considers sickle cell anemia to be a congenital disease. See VAOPGCPREC 82-90 (July 18, 1990). VA regulations note that sickle cell trait alone, without a history of directly attributable pathological findings, is not a ratable disability. 38 C.F.R. § 4.117, Diagnostic Code 7714. As such, it is a congenital defect, and the presumption of soundness at service entrance is automatically rebutted. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. A defect considered by medical authorities to be of congenital origin must by its very nature have preexisted a claimant's military service. See VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. The Board has also considered the Veteran's statements in support of their claim. While the Veteran is competent to report on their symptoms, the Board finds the Veteran not competent to offer an opinion as to whether the sickle cell is related to any instance of their service since the record does not indicate that they possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of the sickle cell, and, consequently, their opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board has also considered whether presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. §3.309. However, as sickle cell is a congenital trait, consideration based on presumptive service connection for continuity of symptomatology is not warranted. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND Entitlement to service connection for PVC is remanded. Remand is required for 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). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. The Veteran underwent a VA examination in November 2021 where the examiner provided a negative nexus opinion. They explained that while STRs indicated heart trouble a separation, that there is no evidence that of it persisting, or it being PVCs. The examiner stated that PVCs were diagnosed after separation from service. While STRs did indicate a systolic ejection murmur, they explained that it is not a sign of PVCs, and that PVCs are electrical conduction abnormalities that do not produce murmurs clinically. Regarding the Veteran's assertion that that the PVCs are result of a murmur that occurred during childbirth, the examiner stated that women often have a murmur during pregnancy due to increased cardiac output during pregnancy to support the growing fetus. They explained that this is not a pathological abnormality, and that there was no evidence of a current murmur disorder on examination. Regarding the Veteran's assertion that the PVCs were caused by an in-service motor vehicle accident, the examiner stated that there is no evidence to suggest this in the claims file. When asked to address the etiology of the PVCs, the examiner stated that it is unknown, and that it would be speculative to determine. However, this statement regarding the actual etiology of the disorder is lacking supporting rationale. It is unclear whether the examiner meant that the etiology is unknown based on a lack of evidence in the claims file, or whether it is unknown to the medical community as a whole. The September 2021 Board remand directives specifically instructed the examiner to provide an etiology if it was found that the disorder is not related to service. 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 actions: Obtain an addendum opinion regarding the etiology of the erectile dysfunction from a VA examiner. 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 diagnosed heart disability including PVC, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that such heart disability is related to service, to include the Veteran's systolic ejection murmur noted in November 1992. (b) The examiner should address the Veteran's contention that the heart condition was discovered while giving birth in November 1997 and may be related to a car accident they were involved in at that time. (c) Address whether the Veteran's contention of how the heart condition began is medically feasible or congruent with how such heart conditions develop. The examiner should provide the basis for their opinion. (d) If the examiner opines that the Veteran's current heart disability is not related to active service, the examiner should provide an etiology for the current heart disability. If speculation is required in the examiner's opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KELLI A. KORDICH 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.