Citation Nr: 1743582	
Decision Date: 09/29/17    Archive Date: 10/10/17

DOCKET NO.  16-11 274A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been received to reopen service the claim for connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease.

2.  Entitlement to service connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease, to include as secondary to the service-connected depressive disorder not otherwise specified.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

C. Ferguson, Counsel
INTRODUCTION

The Veteran had active service in the U.S. Army from July 1979 to July 1982.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016) and 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  In a July 2011 rating decision, the RO denied service connection for a heart disability.  Although the Veteran initiated appeal of the July 2011 rating decision within one year of that notice, he later withdrew the appeal. 

2.  Evidence received since the July 2011 rating decision relates to a previously unestablished fact of a medical opinion linking the current heart disability to service.  

3.  The Veteran's heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease is at least as likely as not related to his service-connected depressive disorder NOS.  


CONCLUSIONS OF LAW

1.  The July 2011 rating decision denying service connection for a heart disability is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016).

2.  New and material evidence has been received to reopen the claim for service connection for a heart disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

3.  Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease have been met.  38 U.S.C.A. §§ 1101 , 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1. New and Material Evidence

Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103.  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; 38 C.F.R. § 3.156(a).  "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial.  38 C.F.R. § 3.156(a).  Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist.  Id., at 118.  

In the July 2011 rating decision, the RO denied service connection for hypertensive heart disease on the bases that there was no diagnosis of hypertensive cardiovascular disease during service, and post-service VA treatment records show no diagnosis of hypertensive cardiovascular disease within one year of service separation.  The RO also denied service connection for mild left ventricular hypertrophy and organic heart disease on the bases that, although service treatment records showed April 1980 complaints of a heart skipping a beat during and after exercise for one day duration, there were no further cardiac complaints during service, there was no diagnosis of a chronic heart disability during service, and post-service treatment records showed no treatment for mild left ventricular hypertrophy and/or organic heart disease until 2001.  In July 2011, the Veteran was notified of that rating decision and provided notice of procedural and appellate rights.  Although the Veteran initiated appeal of the July 2011 rating decision within one year of that notice, he later withdrew the appeal.  See May 2012 correspondence.  No additional evidence was received within one year of the July 2011 notice; therefore, the July 2011 rating decision became final.  38 U.S.C.A. 
§ 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.  

After reviewing the evidence received since the July 2011 rating decision, the Board finds that new and material evidence has been submitted sufficient to reopen the claim for service connection for a heart disability.  The Veteran submitted a May 2013 letter from a private physician specializing in family medicine that includes the medical opinion that the in-service April 1980 symptoms of the Veteran's heart skipping a beat during and after exercise of one day duration and pain on the right side of the neck and right arm were early manifestations of the current heart disability.  The Veteran also submitted a March 2017 independent medical opinion from Dr. E.G., which opined that based on his professional opinion and review of the Veteran's medical records it is at least as likely as not that the Veteran's cardiovascular disease and psychiatric disease were directly connected and caused by his experiences in the service.

The May 2013 and March 2017 opinions from the Veteran's treating physicians are new to the record, address the reason for the prior denial, are presumed credible for the limited purpose of reopening the claim, and raise a reasonable possibility of substantiating the claim.  For this reason, the Board finds that new and material evidence has been received to reopen the claim for service connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease.  See 38 C.F.R. § 3.156(a). 

2.  Merits

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) (2016). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448   (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102  (2016).

The Board finds that the evidence of record supports a grant of service connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease. 

First, there is evidence a current disability.  See, e.g., July 2013 VA Compensation and Pension examination; March 2017 independent medical evaluation.  Second, the record includes in-service symptoms of the Veteran's heart skipping beats during and after exercise of one day duration and pain on the right side of the neck and right arm.  Additionally, service connection is in effect for depressive disorder NOS.  

Third, the evidence is at least in equipoise as to whether the Veteran's current heart disability is related to his service-connected depressive disorder NOS.  In that regard, the law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "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.  38 U.S.C.A. § 5107(b) (West 2014).  In a March 2017 independent medical opinion, Dr. E.G. opined that based on his professional opinion and review of the Veteran's medical records it is at least as likely as not that the Veteran's cardiovascular disease and psychiatric disease were directly connected and caused by his experiences in the service.  Although there is a July 2013 negative VA medical opinion, the examiner did not explain his basis for finding that the in-service symptoms of the Veteran's heart skipping beats during and after exercise of one day duration and pain on the right side of the neck and right arm were not early manifestations of the Veteran's current heart disability.  Additionally, the examiner did not address the relationship between the Veteran's service-connected depressive disorder NOS and his current heart disability.  

Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current heart disability is related to his service-connected depressive disorder NOS.  The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease is warranted.  See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . .  the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").


ORDER

New and material evidence having been received, the appeal to reopen service connection for a heart disability is granted.

Service connection for a heart disability, to include mild left ventricular hypertrophy; organic heart disease, to include hypertensive cardiovascular disease is granted.  



____________________________________________
ANTHONY C. SCIRÉ, JR. 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs