Citation Nr: 1642556	
Decision Date: 11/04/16    Archive Date: 11/18/16

DOCKET NO.  13-21 765A	)	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 service connection for coronary artery disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A. Santiago, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1972 to August 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2016, the Veteran testified at a Board hearing conducted at the Board's Central Office in Washington, D.C., before the undersigned Veterans Law Judge.

In October 2016, the Veteran confirmed that he wishes to have Disabled American Veterans represent him in this case.

The reopened issue of service connection for coronary artery disease is addressed in the REMAND portion of the decision below.


FINDINGS OF FACT

1.  An October 2005 rating decision denied service connection for coronary artery disease; the Veteran did not appeal that decision, and no new and material evidence was received within one year of the decision. 

2.  The evidence submitted since the October 2005 decision is not cumulative, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for coronary artery disease.


CONCLUSIONS OF LAW

1.  The October 2005 RO decision that denied service connection for coronary artery disease is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015).

2.  New and material evidence has been submitted, and the criteria for reopening the Veteran's claim for entitlement to service connection for coronary artery disease have been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection for coronary artery disease was last denied by a rating decision in October 2005.  New and material evidence was not received within one year of notification of that decision.  See 38 C.F.R. § 3.156(b).  The Veteran did not appeal the decision; thus, the decision became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

If a claim of entitlement to service connection has been previously denied, and the decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence is defined as 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 a 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 it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The threshold to reopen a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence is presumed credible.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In the October 2005 rating decision, the RO denied the Veteran's claim of service connection for coronary artery disease because it found no evidence that the Veteran had a current diagnosis of coronary artery disease that was related to service or that occurred within one year of his separation from service.  The evidence considered included the Veteran's service treatment records and post-service VA treatment records.

Evidence received since that decision includes the Veteran's June 2016 Board hearing testimony, during which he contended that he has coronary artery disease due to in-service Agent Orange exposure from working on Air Force bases in California and Hawaii.  This new evidence, which is presumed credible solely for purposes of reopening the claim, relates to an unestablished fact and raises a reasonable possibility of substantiating the previously denied service connection claim for coronary artery disease.  Thus, new and material evidence has been received, and the matter is reopened.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  The reopened claim is further addressed in the remand section.


ORDER

New and material evidence having been presented, the claim of service connection for coronary artery disease is reopened, and the appeal is granted to this extent only.


REMAND

At the June 2016 Board hearing, the Veteran asserted that he experienced in-service herbicide exposure because of his duties as a pavement maintenance specialist and that he currently has heart disease as a result.  The Board notes that the evidence shows that the Veteran has been treated for coronary artery disease.  See, e.g., December 1996 VA treatment record.

VA has a duty to assist veterans in verifying exposure to herbicides.  The VBA Manual M21-1, IV.ii.1.H.7.a, describes the procedure for verifying exposure to herbicides in locations other than the Republic of Vietnam, the demilitarized zone in Korea, or Thailand.  The procedure involves: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran's detailed description of exposure to the Compensation Service for confirmation; and (3) requesting a review of the Department of Defense (DoD) inventory of herbicide operations to determine whether herbicides were used as alleged.  If the Compensation Service's review confirms that herbicides were used as alleged, then a determination must be made as to whether service connection is in order.  If the Compensation Service's review does not confirm that herbicides were used as alleged, then a request should be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides.  Although some information was gathered regarding JSRRC, the Veteran's Board hearing testimony includes statements detailing how he was exposed to herbicides in service.  Specifically, the Veteran testified that he sprayed railroad tracks and around missile silos with chemicals, to include Agent Orange, without protection.  See Board hearing transcript at 5.  Additionally, the Veteran submitted a buddy statement, received in January 2012, that also details how the Veteran experienced in-service herbicide exposure.  Accordingly, remand is required for additional development consistent with the directives in the VBA Manual M21-1.

Furthermore, in a March 2005 statement, the Veteran contends that he had high cholesterol that was treated in service and which caused his current heart disease.  The Veteran has not yet been afforded a VA examination for this claim.  In view of the evidence, the Board finds it necessary to remand the claim for a VA examination and medical opinion.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Also, in the March 2005 statement, the Veteran indicated that he was treated for heart disease since 1975, and he listed several hospitals at which he sought treatment.  While the Veteran also stated that he could only get his records back to 1991, the Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to coronary artery disease claim, while on remand.

Finally, the evidence indicates that records from the Social Security Administration (SSA) exist (see correspondence dated October 30, 2009), but SSA records do not appear to be currently associated with the claims file.  Because SSA records could be relevant to the Veteran's claim concerning the instant appeal, such records should be requested on remand.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

Accordingly, this issue is REMANDED for the following actions:

1.  The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his coronary artery disease claim.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained.

For private treatment records, make at least two (2) attempts to obtain records from any identified sources.  If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.

For federal records, all reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2.  Develop the Veteran's allegation of exposure to herbicides pursuant to the VA Adjudication Procedure Manual M21-1, IV.ii.1.H.7.a, Verifying Herbicide Exposure on a Factual Basis in Other Locations.

This development should include sending the Veteran's detailed description of exposure, to include his June 2016 Board testimony and January 2012 buddy statement, to the Compensation Service and requesting a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed.  If necessary, send a request for verification of herbicide exposure to the JSRRC.

All steps taken in developing the allegation of herbicide exposure must be clearly documented in the claims file.

3.  Request all documents pertaining to the application of disability benefits from SSA, including the records relied upon in determining whether benefits were warranted.

4.  After the above requested records, if any, have been associated with the claims file, schedule the Veteran for a VA examination in connection with his coronary artery disease claim.  The claims file must be provided to and be reviewed by the examiner in conjunction with the examination.  Any tests or studies deemed necessary should be conducted, and the results, including a diagnosis, should be reported in detail.

The examiner should also provide an opinion as to whether the Veteran's heart disease at least as likely as not (50 percent probability or greater) arose during the Veteran's military service or is otherwise etiologically related to service, to include consideration of the Veteran's contentions that he had high cholesterol that was treated in service and caused his current heart disease, and that his current heart disease is related to in-service herbicide exposure.

The examiner should explain the medical basis for the conclusions reached.

5.  Finally, readjudicate the reopened claim on the merits.  If the benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative.  A reasonable period of time should be allowed for response.  The case should then be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter 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 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.




______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs