Citation Nr: 1316571 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-37 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for coronary artery disease, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from November 1974 to July 1983. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The claim for coronary artery disease was previously denied by the RO in a rating decision dated in April 2008. The appellant did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. New evidence received since the time of the final April 2008 rating decision relates to an unestablished fact necessary to grant and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for coronary artery disease. 3. The Veteran's current coronary artery disease had its onset during service. CONCLUSIONS OF LAW 1. The April 2008 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for coronary artery disease is new and material. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for coronary artery disease have been met. 38 U.S.C.A. §§ 1101 , 1110, 1111, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). Therefore, even though the RO has reopened the claim and adjudicated it on the merits, the Board must first determine if the claim was properly reopened (i.e., if new and material evidence was received), and only thereafter review the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f) (West 2002). Reopening a claim for service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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) (2012). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied service connection for a heart condition as secondary to the service-connected bilateral knee disability in April 1996, stating that the evidence did not show that the Veteran's heart disease was incurred in service or was caused by his bilateral knee disability. A September 10, 1998 rating decision found that new and material evidence had not been submitted to reopen the claim. The RO did reopen the claim in April 2007 and April 2008, both times denying the claim on the basis that the Veteran's heart condition neither occurred in nor was caused by service. The Veteran did not appeal any of the decisions within one year, thus each became final. In a September 2009 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim. The Veteran filed a statement disagreeing with the decision in September 2009, attaching evidence. In a November 2009 statement, the Veteran requested that his September 2009 filing be treated as a request for reconsideration or to reopen his claim, not as a notice of disagreement of the September 2009 rating decision. The RO treated it as such, and the Veteran did not within a year subsequently file a notice of disagreement with the September 2009 rating decision. Thus, that rating decision became final. The RO issued a rating decision in January 2010 finding that the Veteran had not submitted new and material evidence to reopen the claim. A Decision Review Officer conducted a de novo review of the claim in August 2010, adjudicating the case on the merits and denying service connection. Evidence added to the file since the September 2009 rating decision, including evidence submitted September 3, 2009 and not considered in the September 2009 rating decision, includes: a treatment record dated April 15, 2009 from Cardiology Care Consultants stating that "given that heart catheterization was not done in 1983, one cannot determine exactly when cad developed;" an August 18, 2009 hospital admission record from the William Beaumont Army Medical Center where the Veteran was treated for angina; a medical opinion from the chief of cardiology services at the William Beaumont Army Medical Center opining that the Veteran "clearly had coronary artery disease while on active duty which may have been misconstrued as a hiatal hernia;" and treatment records from the El Paso Veterans Medical Clinic from September to October 2009. The Veteran also submitted evidence that had already been submitted or was in the file prior to September 2009, which thus does not qualify as new evidence as defined by 38 C.F.R. § 156(a), including service treatment records from 1983; his April 2008 VA examination; VA treatment records from 1988, October 2005, and September 2008; hospital discharge records from November 1994; and an October 2007 medical opinion from Dr. Belbel. As the Veteran's claim has previously been denied based on the evidence not showing that his heart condition occurred in or was caused by service, to reopen, new evidence must have been submitted related to that unestablished fact. The September 2009 medical opinion by the chief of cardiology services at the William Beaumont Army Medical Center does address that issue. Specifically, the opinion suggests that the Veteran's heart condition occurred in service. The Board thus finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for coronary artery disease. II. 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). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. 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). 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 Veteran's heart was found normal on examination upon his entrance into service in October 1974 and he reported no history of heart problems. Service treatment records reflect that the Veteran sought treatment for chest pain in August 1978 and January 1983. In August 1978 the Veteran reported having chest pain in the past, with the last episode about a year prior. Records from January 4, 1983 note that the Veteran complained of chest pain for two days, he got relief with nitrogylceride, had a negative chest x-ray, and had no acute changes on an EKG. A January 10, 1983 discharge note states that the Veteran had a graded exercise test within normal limits, his enzymes were within normal limits, and his EKG was without acute ischemic changes. A request for a consultation with the GI clinic on January 10, 1983 stated that the Veteran's EKGs were within normal limits, his enzymes were not elevated, and he had a graded exercise test with no exercise response and not indicative of ischemia. In November 1994 the Veteran was admitted to the hospital with an acute myocardial infarction. In December 1997 he underwent coronary artery bypass surgery. In October 2006 the Veteran was diagnosed at the VA with acute coronary syndrome after he presented with chest discomfort. In August 2009 the Veteran was again admitted to the hospital and diagnosed with angina. The Veteran's current diagnosis of coronary artery disease is not in dispute. The remaining question is whether the condition is related to his service. An April 2009 private medical treatment record states that "given that heart catheterization was not done in 1983, one cannot determine exactly when [coronary artery disease] developed." The Veteran underwent a VA examination in July 2010. The examiner stated that after the Veteran reported chest pain in service he was properly evaluated for cardiac disease and found to have normal cardiac enzyme levels and a normal stress test. He was diagnosed with having a hiatal hernia, explaining his chest discomfort. The examiner noted the Veteran's coronary heart disease diagnosis came 11 years later. The examiner opined that the Veteran's chest pain was not misdiagnosed in 1983 since proper testing done at that time was normal. The examiner noted that the Veteran continued to perform at high levels of physical activity in service without documented heart problems. The examiner further noted that the Veteran's risk factors including obesity and smoking could have led to the natural progression that resulted in his heart disease. Although the examiner recognized that other doctors had opined that the Veteran's chest pains in 1983 were manifestations of underlying heart problems, the examiner opined that it was less likely than not that the Veteran's current heart condition was due to preexisting heart disease in service. He also noted that an earlier VA examiner had opined that the Veteran was correctly not diagnosed with a heart condition in 1983 given the normal cardiac enzymes, EKG, and stress test done at the time. At the Veteran's VA examination in March 2007, the examiner opined that the Veteran' s coronary artery disease was less likely than not related to his service. The examiner explained that the Veteran's service treatment records at the time he was seen for chest pain in 1983 were not significant for ischemia and his cardiac enzymes were normal. He stated that if the Veteran had had a heart attack or ischemia the Veteran's cardiac enzymes would have been abnormal. The hiatal hernia he was diagnosed with explained his symptoms. The examiner also stated that chest pain caused by a gastric condition can also be relieved by nitroglycerin. The examiner also stated that if the Veteran had had ischemia or a heart attack in 1983 without treatment, he would have expected him to have had another heart attack sooner than 1994. The examiner opined that the Veteran's present heart condition was due to hypertensive cardiovascular disease, obesity, persistent and heavy smoking, and hypercholesterolemia. In September 2009 Dr. Hainer, who had treated the Veteran at the William Beaumont Army Medical Center, recounted that the Veteran had presented with chest pain and shortness of breath in January 1983. He had hypercholesterolemia and a normal exercise stress test at that time. Thirteen years later he was diagnosed with obstructive coronary disease requiring coronary angioplasty and three years after that he required multi-vessel coronary artery bypass graft surgery. Dr. Hainer concluded the Veteran "clearly had coronary artery disease while on active duty which may have been misconstrued as a hiatal hernia." Dr. Bebel saw the Veteran in October 25, 2006. At that time he noted the Veteran's history of coronary artery disease dated back to his time in service. He stated that service treatment records showed that the Veteran probably did have some ischemia at that time, but it was not addressed properly at that point. He stated that the Veteran had an abnormal EKG and chest pain at the time. He noted "there is no conclusive evidence that was worked up." In October 2007, Dr. Belbel authored a medical opinion stating that review of the Veteran's service treatment records showed he had significant EKG abnormalities suggestive of coronary artery disease and symptoms of chest pain. He opined that "it is likely that his current coronary ischemic heart disease is related to his previous active duty military service." In this case there are two medical opinions by Dr. Hainer and Dr. Belbel finding a nexus between the Veteran's service and his current coronary artery disease and two medical opinions by the VA examiners finding there is no nexus. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Dr. Belbel cited the Veteran's "abnormal" EKG and chest pain in 1983 as signs that he had ischemia that was incorrectly diagnosed as a hiatal hernia at that time. However, the Veteran's service treatment records reflect that his EKG was normal and do not mention any abnormalities. As this fact is a basis of Dr. Belbel's opinion and it is incorrect, the Board gives his opinion less weight. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion based upon an inaccurate factual premise had no probative value.). Dr. Hainer recognizes the Veteran's normal exercise stress test in January 1983, but still opines, without discussing the Veteran's EKG or cardiac enzymes, that the Veteran had coronary artery disease in service that may have been misconstrued as a hiatal hernia. Both VA examiners point to the Veteran's normal testing in 1983 as support for their opinion that he did not have cardiac disease at that time and was correctly diagnose with a hiatal hernia, explaining his chest pain. However, the Board still has evidence in this case which arguably supports the Veteran's claim contained within the treatment records. Further, the fact that the Veteran had active military service from November 1974 to July 1983 and was treated in January 1983 with chest pains, then got relief with nitrogylceride, supports this claim, notwithstanding the negative chest x-ray and EKG. In this case, the Board gives the Veteran the benefit of the doubt as statutorily required. 38 U.S.C.A. § 5107(b). Thus, the Board finds the Veteran is entitled to service connection for his coronary artery disease. III. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. ORDER Service connection for coronary artery disease is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs