Citation Nr: 0810984 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-25 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen the claim of service connection for arteriosclerotic heart disease, (claimed as a heart condition), secondary to the veteran's service-connected post-traumatic stress disorder (PTSD), including whether service connection may be granted. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from August 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which found that new and material evidence had not been submitted to reopen the claim for arteriosclerotic heart disease secondary to the veteran's service-connected PTSD. The veteran is in receipt of a total disability evaluation based on individual unemployabillity, effective May 12, 1995. FINDINGS OF FACT 1. Service connection for a heart condition was denied by rating decision of January 1987. The veteran was notified of that decision and of his appellate rights in a February 1987 letter, and he did not file a timely appeal. 2. Evidence received since the January 1987 decision raises a reasonable possibility of substantiating the claim for service connection for a heart condition, as aggravated by the veteran's service-connected PTSD. 3. There is an approximate balance of evidence for and against a finding that the veteran's heart disability is aggravated by the veteran's service-connected PTSD. CONCLUSIONS OF LAW 1. The January 1987 rating decision which denied service connection for a heart condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302(b), 20.1103, 3.104(a) (2007). 2. Evidence submitted subsequent to the January 1987 rating decision denying service connection for a heart condition, as aggravated by the veteran's service-connected PTSD is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2007). 3. Resolving all reasonable doubt in favor of the veteran, a heart condition was aggravated by the veteran's service- connected PTSD. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In view of the favorable decision in this case, it is unnecessary to enter any discussion regarding whether there has been full compliance by VA with respect to its duty to notify and duty to assist the veteran in connection with this claim of service connection. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302(a) (2007). However, if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002). The Board notes that the regulations define "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Wakeford v. Brown, 8 Vet. App. 237 (1995). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, the new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection for a heart condition was denied by rating decision of January 1987. The evidence of record did not show that the veteran had heart disease in service, within the statutory period following discharge, or that cardiovascular disease was due to the veteran's service-connected PTSD - the latter disorder also being sought by the veteran to be service connected at that time. However, and significantly for purposes of the granting of the claim as below, in June 1985, the veteran reported that he had episodes of chest pain and headaches while on active duty in Vietnam during periods of stress. He also submitted a statement from an in-service colleague to that effect. The evidence showed that the veteran had a myocardial infarction (MI) in October 1982 after service. The veteran was sent notice of the denial in a letter dated in February 1987. The veteran filed a notice of disagreement (NOD) in July 1987. A statement of the case (SOC) was issued in August 1987. However, the veteran did not timely appeal this decision. The Board has reviewed the evidence received into the record since the January 1987 RO denial and finds that new and material evidence has been submitted sufficient to reopen the claim for service connection for a heart condition, as aggravated by the veteran's service-connected PTSD. Further, having reopened the claim, the Board finds that the evidence is in approximate balance as to that both for and against a finding that service-connected PTSD aggravated the heart disorder. The benefit of the doubt in this regard will be applied in the veteran's favor. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Reopening of the Claim Evidence submitted since the January 1987 denial of service connection for a heart condition includes statements of February 1989 and July 1989 from Andrew Jensen, Ph.D.; a December 1992 VA examination report; a July 1995 VA examination report; private cardiology records dated from 1982 to 2003; a private medical statement from Andreas Pavlides, MD; a November 2004 VA examination report; medical literature submitted by the veteran on behalf of his claim; copies of medical records in support of another appellant's claim; a Board decision in favor of another veteran's claim; and testimony at a RO hearing before a hearing officer in May 2007. Private cardiology records dated from 1982 to 2003, are not new and material evidence. Those records show that the veteran has received ongoing treatment for cardiac care. They do not show a connection between the veteran's PTSD and his heart condition, such that there is an aggravation of his heart condition by his service-connected PTSD. Those records do not show an unestablished fact necessary to substantiate the claim. Since the records only show evidence of ongoing treatment for cardiac care and no connection between the veteran's PTSD and his heart condition, the evidence is not new and material evidence. The November 2004 VA examination report is not new and material to reopen the veteran's claim. That report indicates, in pertinent part, that the veteran has several cardiac risk factors to include hypertension, hyperlipidemia, and a 20 pack history of smoking. The examiner states that medical literature does not support that PTSD causes coronary disease or aggravates or worsens coronary disease. It was this VA examiner's opinion that because the veteran has well- established risk factors for the development of coronary disease, it is unlikely that PTSD caused, aggravated, or worsened the veteran's heart condition. The veteran has also submitted medical literature that indicates the risk factors for coronary disease, which includes stress. Other medical literature submitted by the veteran relates other physical manifestations of stress, including that to the heart. He also submitted a Board decision granted on behalf of another veteran, supporting service connection for hypertension, secondary to that veteran's service-connected PTSD; and a medical statement in support of that veteran's claim. The examiner in that case submitted an extensive opinion linking the veteran's service- connected psychiatric disorder and the veteran's cardiac disease, and his eventual death. This evidence is both new and material within the meaning of the law. Essentially, these submissions were not previously of record, and provide competent medical information indicating at least a generic linkage, thus tending towards a finding an unestablished fact that the veteran's PTSD worsened his heart condition. Finally, and most importantly, an August 2004 medical statement by Andreas C. Pavlides, MD, is also new and material evidence. That statement indicates that the veteran has a medical history of PTSD which more likely than not is contributing to the veteran's hypertension. Hypertension, according to Dr. Pavlides, is a risk factor for coronary disease. This statement is new, as it has not been presented before. It is material, because it raises the possibility that the veteran's heart disease is secondary to his service- connected PTSD. Based on the foregoing, new and material evidence has been presented and the veteran's claim of service connection for a heart condition is reopened. The evidence of record is sufficient to evaluate the veteran's claim for service connection for a heart condition on the merits. Merits of the Claim Under applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is available for disabilities that are proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310. When aggravation of a non-service-connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Allen Court held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen at 448. VA amended 38 C.F.R. § 3.310, to conform the regulation to Allen v. Brown. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." The current paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Throughout the veteran's claims file, there is substantial medical evidence of numerous treatments for heart complaints. The medical evidence indicates that the veteran had a myocardial infarction in October 1982. It also indicates that the veteran has significant risk factors related to a heart condition to include hypertension, cigarette smoking, and hyperlipidimia. None of these risk factors have been determined to be the cause of his heart condition. However, as early as 1989, Andrew Jensen, Ph.D., the veteran's treating physician, indicated that the veteran had a heart disorder, which had been determined to be severe. He stated that the stress and inner emotional conflicts suffered by the veteran may have contributed to this medical problem and certainly his PTSD symptoms could very well have aggravated this condition. Another letter from Dr. Jensen received in July 1995 amplified his earlier observations. He then reported that he had treated the veteran since 1985. The sum of both letters is that the veteran's PTSD and heart disorder essentially aggravated each other. In December 1992, a VA examiner made a statement in support of the veteran's PTSD claim. At that time, he indicated that the veteran had PTSD, hypertension and coronary artery disease. He related that the anxiety and stress that the veteran experienced from his PTSD often brought on angina attacks and tended to elevate the veteran's blood pressure. In July 1995, a VA examiner stated that the veteran had experienced a heart condition in recent years and whenever he experienced stress, PTSD symptoms created problems for him. There appeared to be a reciprocal effect in his life, that is, the pain and difficulty with his heart aggravated his emotional condition and emotional condition tended to aggravate his physical pain. The examiner also stated that the first diagnosis was PTSD. Dr. Pavlides indicted in August 2004 that the veteran's PTSD was more likely than not contributing to his hypertension and that his hypertension was a risk factor for his coronary disease, so this (his PTSD) may play a role in his current heart condition. Alternatively, private medical records of January 2005, stated that the veteran's blood pressure was controlled by current medical regimen. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). While there is competent evidence indicating no connection between the veteran's PTSD and his cardiac disorder, there also evidence for the countervailing proposition. The critical factor is that the veteran has long reported that stress worsens his cardiac symptoms - a report of worsening symptoms that he is competent to report as a layperson. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 470 (1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Dr. Pavlides' report corroborates the essential opinion of Dr. Jensen - the latter having long-term experience in treating the veteran and being clearly more aware of the varying effects of service-connected PTSD on the cardiac symptoms. While the law provides that the observations and opinions of treating physicians are not determinative, it is clear that Dr. Jensen provides a highly informed opinion. Van Slack v. Brown, 5 Vet. App. 499 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). ORDER New and material evidence to reopen a claim of service connection for a heart condition has been submitted, and the claim is reopened. Service connection for a heart condition, as aggravated by the veteran's service-connected PTSD, is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs