Citation Nr: 1506814 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 13-05 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for a heart disability, to include aortic valve disease, as secondary to hypertension. 2. Entitlement to service connection for a heart disability, to include aortic valve disease, as secondary to hypertension. 3. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Roggenkamp, Associate Counsel INTRODUCTION The Veteran had active service from October 1985 to April 1990, and from June 1992 to September 1993. This matter is on appeal to the Board of Veterans' Appeals (Board) on appeal from May 2011 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The rating decision from May 2011 denied service connection for the Veteran's back disability, and the October 2012 rating decision addressed the claim for a heart disability. In March 2014, the RO reopened and denied service connection for a heart disability. The Veteran testified at a videoconference hearing in July 2014 before the undersigned. The Veteran and his wife appeared from St. Paul, Minnesota, with the Veteran's representative appearing electronically from Wisconsin. A copy of the transcript has been associated with the Veteran's electronic claims file. The issues of service connection for a heart disability and a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed August 2003 RO decision, service connection for a heart disability as secondary to hypertension was denied. 2. New evidence received since the August 2003 decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim of service connection for a heart disability. CONCLUSIONS OF LAW 1. The August 2003 RO decision denying service connection for a heart disability as secondary to hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2014). 2. New and material evidence has been received since the RO's August 2003 decision, and the claim of service connection for a heart disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 2003 rating decision, the RO denied the Veteran's claim for service connection for a heart disability as secondary to hypertension on the basis that the Veteran's hypertension "was not the direct cause of," "nor did it aggravate," the Veteran's heart disability. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the August 2003 rating decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2014). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C.A. § 7104(b) (West 2014); King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2014). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The Veteran submitted several letters from his private physician, W.Y., M.D. In an October 2012 letter, Dr. W.Y. suggests that untreated hypertension could be related to the Veteran's multiple cardiac problems, and alleges that, based on a review of the Veteran's service treatment records, the Veteran's hypertension may not have been treated as early as it should have been. In a letter from May 2014, Dr. W.Y. stated that in his opinion, the Veteran's "heart damage and renal failure [are] as a result of non-treatment during his distinguished military career." Presuming the credibility of the doctor's statements, the letters put forth a new theory of the Veteran's service connection, and the letters relate to an unestablished fact necessary to substantiate the claim. Because of this, Dr. W.Y.'s letters constitute new and material evidence to reopen the claim. Given the granting of benefits, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2013). ORDER New and material evidence has been presented to reopen the claim of service connection for a heart disability, to include aortic valve disease, as secondary to hypertension. REMAND Remand is warranted in this case in order to obtain adequate, recent medical examinations. Given Dr. W.Y.'s advancement of a new theory of service connection, the Board remands the Veteran's heart disability claim for an updated medical opinion. The Veteran and his representative also argued at his hearing that the Veteran's January 2011 VA examination and opinion were in adequate because the opinion, which found that the Veteran's back disability was less likely than not related to service, stated "the lack of documentation within the first few years after that injury of any ongoing treatment or care" as its only reason for the denial. At his hearing, the Veteran testified that after his in-service injury, he had pain that would get better or worsen, depending on the day, and that he would take Aleve to help with the pain when necessary. The Veteran's representative stated that the Veteran did not seek formal treatment for his back pain and chose to self-medicate instead because he feared being discharged from the military for medical reasons. Given the Veteran's assertion that he did not seek formal treatment but self-medicated instead, the Board agrees that the rationale of the January 2011 examination is inadequate, and remands for an examination that accounts for the Veteran's lay assertions. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician. The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b) Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i) The letters from Dr. W.Y., dated from October 2012 and May 2014, advancing a theory that the Veteran may have shown signs of hypertension significantly prior to his diagnosis, and that the period of undiagnosed hypertension during service may have exacerbated the Veteran's current heart disability in a way it would not have been had the Veteran been receiving treatment for hypertension. c) The examiner must provide an opinion including specific findings on the following issues: Was the Veteran's diagnosed bicuspid aortic valve, described as a congenital defect, subject to a super-imposed disease or injury that began during or is otherwise the result of the Veteran's military service? Is it at least as likely as not that any identified heart disability had onset within one year of service separation? The examiner must consider the argument that hypertension and/or untreated hypertension in service caused additional heart disability. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. d) As part of the opinion, the examiner must address the Veteran's competent lay statements regarding onset in his or her rationale, as well as any relevant statements from treatment records. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. Return the Veteran's claims file to the examiner who conducted the January 2011 back examination so a supplemental opinion may be provided regarding whether the Veteran's back condition is directly related to service. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a) If a new examination is conducted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b) Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i) The Veteran's 2014 hearing transcript, in which he and his representative allege that he self-medicated immediately after the in-service incident because he feared for his job. ii) A March 2014 lay statement in which the Veteran describes self-medicating with Aleve during service. c) The examiner must provide an opinion including specific findings as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability began during active service or is related to any incident of service or if arthritis is diagnosed, whether it began within one year of separation from active duty. d) As part of the opinion, the examiner must address the Veteran's competent lay statements regarding onset in his or her rationale, as well as any relevant statements from treatment records. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After the above has been completed, the RO must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs