Citation Nr: 1306386 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 11-30 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves. 2. Entitlement to service connection for a heart disability, including atrial fibrillation and ischemic heart disease, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from September 1954 to September 1956 and from May 1963 to June 1966. These matters come before the Board of Veterans' Appeals (BVA or Board) from two rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO). A January 2011 rating decision issued by the RO in Nashville, Tennessee denied service connection for atrial fibrillation, claimed as ischemic heart disease. Also on appeal is an April 2009 rating decision issued by the RO in Cleveland, Ohio which denied reopening the claim for service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves. In September 2009 the Veteran requested reconsideration. While the decision was pending, new VA treatment records were received and the RO issued a January 2010 rating decision which reopened and denied the claim. In February 2010 the Veteran filed a timely notice of disagreement. The RO did not issue a statement of the case (SOC). In March 2011 the Veteran filed another claim for service connection for anxiety. In response the RO issued a March 2011 SOC which denied reopening the claim. In April 2011 the RO also sent the Veteran a development letter informing him of the evidence needed to reopen the claim for psychoneurosis, anxiety and conversion disorder, claimed as nerves, even though the appeal period for the March 2011 SOC was still pending. The RO then issued a July 2011 rating decision denying the claim to reopen. Construing the Veteran's correspondence liberally, the Board finds that the Veteran filed a timely notice of disagreement with April 2009 rating decision, the rating decision on appeal. Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Additional evidence was received by the Board after the appeal, however as the evidence is not relevant to the matters on appeal, a waiver of RO consideration is not required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an October 2005 rating decision, the RO denied reopening a claim for service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves. The Veteran did not appeal the decision, no evidence was received within one year of the rating decision, and the determination is now final. 2. Evidence submitted since the RO's January 2005 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves. 3. A heart disability was not first manifest during service, or within a year after discharge from service, and the medical evidence of record does not show that a heart condition is related to any disease or injury incurred in or aggravated by service. 4. There is no diagnosis of ischemic heart disease. CONCLUSIONS OF LAW 1. The October 2005 rating decision that denied service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the October 2005 rating decision is not new and material and the criteria to reopen the previously denied claim for entitlement to service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves are not met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection of a heart disability, to include atrial fibrillation and ischemic heart disease, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). December 2008 and February 2010 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The December 2008 letter informed the Veteran of the evidence and information necessary to reopen the claim for service connection, including the basis on which the prior claim was denied in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In March 2010 the Veteran identified private treatment providers. Two of the treatment providers, AS and AL, already submitted evidence in 1983. Treatment records from Great Lakes Heart and Vascular Institute are not relevant to the central issue here, as a thorough VA examination and associated testing determined that the Veteran does not have ischemic heart disease. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA heart examination was conducted in December 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and opined that the Veteran did not have ischemic heart disease. A VA psychiatric examination was not provided as the claim for service connection for a psychiatric disorder is not being reopened, and an examination is not required. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence The Veteran contends that his anxiety condition began in service and has continued ever since. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The last final rating decision was issued in October 2005. The Veteran did not appeal the decision and no evidence was received within one year of the rating decision. The decision is now final. In the October 2005 rating decision, the RO denied reopening the claim for service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Federal Circuit has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. At the time of the prior denial, there was no evidence of a nexus relating the Veteran's current psychiatric disability, anxiety, with any injury or disease, or evidence of incurrence in service. The basis of the denial was that new and material evidence had not been submitted to establish that an anxiety neurosis was incurred or aggravated by active service. The evidence of record at the time of the October 2005 rating decision included private and VA treatment records for anxiety and nerves, but only for treatment after service. Evidence received since the October 2005 RO decision includes VA treatment records which show ongoing prescriptions to treat anxiety. While the additional evidence received is new, it is not material. It does not include any evidence which relates to an unestablished fact necessary to substantiate the claim, specifically any evidence suggesting a nexus between the Veteran's current psychiatric disability and service, or any evidence suggesting continuity of symptomatology. Although the Veteran and his wife did submit statements attesting to his continuity of symptomatology since leaving service, these June 2005 statements were already of record at the time of the October 2005 rating decision, and unfortunately therefore cannot be considered when determining whether new and material evidence has been submitted since the October 2005 rating decision. The Veteran genuinely believes that his current psychiatric disorder began in service and has continued ever since. Although the Veteran is competent to report symptomatology that he experiences, for example feeling sad or tearful, however as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology of a psychiatric disability and his views are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In sum, the evidence received since the RO's October 2005 decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. New and material evidence has not been received since the RO's October 2005 decision and reopening the claim is not warranted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Some diseases of the heart are listed as chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). However as the Veteran was not treated for, or diagnosed with any heart disorders in service or within one year of service, service connection under 38 C.F.R. § 3.309 is not warranted. Ischemic heart disease is subject to presumptive service connection for herbicide exposed Veterans. Exposure to herbicides, including Agent Orange, is presumed for Veterans who served in Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran was present in-country during this time, and is therefore presumed exposed. If the Veteran manifests ischemic heart disease, it will be presumptively service connected. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, 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. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The service treatment records contain no complaints of or treatment for any heart problems in service. Post-service, a June 1970 medical evaluation found the Veteran to have sinus rhythm with fairly frequent right ventricular premature contractions but no definite evidence of myocardial damage. A June 1970 chest x-ray was normal. In a June 1983 note Dr. AS reported that he had treated the Veteran in the past from 1968 to 1979 for a nervous condition but that the Veteran had some symptoms suggestive of heart disease which he attributed to his state of tension. The Veteran has given a history of an irregular heartbeat, cardiac arrhythmia. A November 2005 VA treatment record noted the Veteran's report of congestive heart failure in his chart, but found there to be no findings to suggest such on an exam or echocardiogram and therefore doubted the diagnosis. In December 2010 a VA examination for ischemic heart disease was conducted. The Veteran reported a history of irregular heart beat while enlisted. Upon physical examination the doctor found there to be a heart murmur but no evidence of congestive heart failure or pulmonary hypertension. All necessary tests were conducted, to include an echo and an echocardiogram (ECG). The examiner diagnosed congestive heart failure with history of atrial fibrillation. The examiner found that the Veteran did not have ischemic heart disease or any other diagnosis associated with ischemic heart disease. The examiner opined that the Veteran's heart condition was less likely than not related to ischemic heart disease. The Veteran has a history of chest pain and diagnoses of atrial fibrillation and congestive heart failure but no documentation of coronary artery disease to support ischemic component to congestive heart failure. The examiner noted that private records mention that the Veteran has atherosclerotic heart disease but no record of cardiac catheterization to confirm findings or EKG/ECHO to support. The Veteran has hypertension and a history of atrial fibrillation but neither are part of the ischemic heart disease clinical picture. The examiner also noted no myocardial infarctions (heart attack). As the Veteran does not have ischemic heart disease or any diagnosis related to ischemic heart disease, service connection on a presumptive basis is not warranted. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran contends he has a current heart disability related to service, and that he had an irregular heart beat which began during service. While the Veteran is competent to report symptomatology that he experiences, for example heart palpitations, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology of a heart disability and his views are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). There is no evidence that a heart disability manifested during service or shortly thereafter. A heart disability has not been found to be related to any injury or disease in service. The competent evidence of record is against a finding that a heart disability is related to service. Service connection for a heart disability is not warranted. ORDER New and material evidence has not been received and the petition to reopen a claim for service connection for service connection for psychoneurosis, anxiety and conversion disorder, claimed as nerves, is denied. Entitlement to service connection for a heart disability, including atrial fibrillation and ischemic heart disease, to include as secondary to herbicide exposure is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs