Citation Nr: 1601579 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-19 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for ischemic heart disease, to include as secondary to herbicide exposure. 2. Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from July 1969 to July 1971, to include service in the Republic of Vietnam. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript of that hearing is of record. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. In an unappealed April 1994 rating decision, the Veteran's claim for service connection for a heart disorder was denied as the evidence failed to show that his heart disorder was due to his service; the Veteran failed to submit new and material evidence within a year of receiving notice of this rating decision. 2. The evidence received since the April 1994 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for ischemic heart disease, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims. 3. The Veteran is presumed to have been exposed to herbicides during his military service. 4. The Veteran's diagnosed ischemic heart disease is presumed to have been caused by his herbicide exposure in service. CONCLUSIONS OF LAW 1. The April 1994 rating decision denying service connection for ischemic heart disease is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1993). 2. New and material evidence has been received since the April 1994 rating decision that is sufficient to reopen the Veteran's claims of entitlement to service connection for ischemic heart disease. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception is that 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. 38 U.S.C.A. § 5108. New evidence means 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). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claim of entitlement to service connection for a heart disorder was denied in April 1994. The Veteran did not appeal the April 1994 decision, nor did he submit any new and material evidence within a year of the April 1994 rating decision. See 38 C.F.R. §3.156(b). The April 1994 decision thereby became final. At the time of the April 1994 rating decision, the record consisted of the Veteran's military personnel records, service treatment records (STRs), VA medical evidence, and private medical evidence. Evidence received since the April 1994 rating decision includes additional VA medical evidence, private medical evidence, and the Veteran's testimony at a November 2015 Board hearing. In his testimony, the Veteran provided additional details about his ischemic heart disease, which included information regarding various cardiac diagnostic testing. This information is both new and material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). As such, new and material evidence has been presented, and the claim of entitlement to service connection for a right knee disorder is reopened. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran is currently diagnosed with ischemic heart disease, which he believes resulted from herbicide exposure while in service. The Veteran's military service records show that he was in Vietnam from January 1970 to November 1970. As such, herbicide exposure is presumed. In September 1997, a thallium study showed small reversible ischemia. In August 2002, he was diagnosed with coronary artery disease quiescent. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including ischemic heart disease, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. As noted, when a veteran is diagnosed with ischemic heart disease and is presumed to have been exposed to herbicides during service, service connection will be granted unless there is clear evidence to the contrary, which is not present here. As such, the criteria for service connection for ischemic heart disease have been met, and the Veteran's claim is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER New and material evidence has been presented, and the claim of entitlement to service connection for ischemic heart disease is reopened. Service connection for ischemic heart disease is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs