Citation Nr: A24029748 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 220616-254944 DATE: June 6, 2024 REMANDED Entitlement to service connection for a heart disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2022 Higher-Level Review rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2022 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for a heart disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for a heart disability. The Veteran contends his heart disability is related to service, specifically, as a result of his intense and physically demanding training as a Special Forces soldier. See December 2021 VA Form 21-4138. The Veteran's DD 214 reflects his military occupational specialty as Combat Engineer and that he was assigned to the 10th Special Forces Group (SFG). As an initial matter, the April 2022 rating decision made favorable findings that the Veteran has been diagnosed with a disability: right axis deviation secondary to pectus excavatum; and that the claimed issue was treated during military service in February 1970. See also STR - Medical. The Veteran's November 1968 enlistment examination is normal except for noted pes cavus. The accompanying report of medical history is normal. Service treatment records (STRs) reflect the Veteran was referred to cardiology in February 1970 to evaluate "split second sound and decreased pulmonary space." A cardiology evaluation was performed in March 1970 which revealed marked pectus excavatum. Upon examination, the Veteran's lungs were clear and his heart was not enlarged. The first sound is split slightly and the second is widely split. There is a grade II/VI basal systolic murmur. An echocardiogram was performed and revealed right axis deviation that was entirely compatible with pectus excavatum and does not necessarily indicate heart disease. Cardiac series x-rays demonstrated a heart size that was normal but there was a marked decrease in the AP diameter of the chest due to pectus excavatum deformity. The cardiologist concluded the Veteran did not have an organic heart disease and he was cleared for upcoming special forces training. The Veteran's November 1971 separation examination marked his chest as normal but noted the Veteran had pectus excavatum and widely split S-2 with inspiration. The accompanying report of medical history is normal and does not note any complaints related to the chest or heart. The Veteran was afforded a VA heart conditions examination in February 2022. The examiner diagnosed right axis deviation secondary to pectus excavatum. The examiner opined that the Veteran's right axis deviation secondary to pectus excavatum is less likely than not incurred in or caused by service. In doing so, the examiner highlighted that the disability is congenital and studies show no link to heart disease. The examiner clarified that the right axis deviation is due to the pectus excavatum which is congenital. The Board finds this opinion inadequate because it does not specify whether pectus excavatum is a congenital defect or a congenital disease. If the disability is a disease, findings must be made as to whether it was aggravated by the Veteran's period of active service. If it's a defect, findings must be made as to whether there are any superimposed diseases or injuries in connection with the congenital defect which resulted in additional disability. When the VA undertakes to provide an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the failure to obtain an adequate medical opinion constitutes a pre-decisional duty to assist error, and therefore a remand is warranted so that an addendum medical opinion may be obtained. 38 C.F.R. §§ 3.159(c), 20.802(a). The matter is REMANDED for the following action: Provide the claims file to a qualified clinician other than the clinician who provided the February 2022 medical opinion. Schedule the Veteran for an examination only if deemed necessary by the clinician. The claims file must be reviewed. The examiner should address the following: (a.) Is any currently diagnosed disability, to include right axis deviation and pectus excavatum, a congenital defect or disease? The clinician is advised that for purposes of VA compensation, a congenital "disease" is a congenital condition capable of improving or deteriorating. A congenital "defect" is a congenital condition that is static in nature. (b.) If any currently diagnosed heart disability, to include right axis deviation and pectus excavatum, is a congenital defect, is it least as likely as not that there was a superimposed disease or injury during the Veteran's active service which resulted in an additional disability? (c.) If any currently diagnosed heart disability, to include right axis deviation and pectus excavatum, is a congenital disease, did this condition which existed prior to service at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? (d) If any currently diagnosed heart disability, to include right axis deviation and pectus excavatum, did not pre-exist the Veteran's service, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability had its onset during or is otherwise related to his active service? The examiner must address all relevant service treatment records and the Veteran's lay statement that his heart disability is the result of his intense and physically demanding training as a Special Forces soldier. See December 2021 VA Form 21-4138. The Board notes that no disability associated with the Veteran's heart was noted at the time of enlistment. The examiner must provide a complete rationale for his or her opinion(s). If the requested opinion cannot be provided without resorting to mere speculation, the examiner should explain why. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Gary, 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.