Citation Nr: 1757536 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 16-28 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disability (claimed as AV block and wandering pacemaker). 2. Entitlement to service connection for a heart disability (claimed as AV block and wandering pacemaker). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107(a) (2) (West 2014). The Veteran had active service from October 1953 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2017, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. In a May 2008 rating decision, the Indianapolis, Indiana, RO denied reopening the claim for service connection for a heart disability. Although notified of the denial in a May 2008 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year. 2. Evidence associated with the file since May 2008, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a heart disability. 3. The Veteran's heart disability pre-existed his military service, and probative medical evidence indicates his military service did not aggravate his heart disability beyond the normal progression of the disability. CONCLUSIONS OF LAW 1. The May 2008 rating decision denying service connection for a heart disability is final. 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103 (2017). 2. As pertinent evidence received since the May 2008 denial is new and material, the criteria for reopening the claim for service connection for a heart disability are met. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Petition to reopen previously denied claim Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence means existing 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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting 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 the claim). The claim of service connection for a heart disability was previously denied in an un-appealed May 2008 rating decision. Because new and material evidence has since been submitted, this claim will be reopened. In a December 1964 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a heart disability because the Veteran's heart disability pre-existed his military service and was not aggravated during service. Although notified of this decision by a December 1964 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In September 2005, the Veteran petitioned to reopen the service connection claim. In a May 2006 decision, the RO denied reopening because the evidence submitted was not material. The Veteran did not initiate a timely appeal, and the May 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2007, the Veteran again petitioned to reopen his claim for service connection for a heart disability. In a May 2008 decision, the RO denied reopening because the evidence submitted was not material. The Veteran did not initiate a timely appeal, and the May 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2011, the Veteran petitioned to reopen the service connection claim. In a July 2012 rating decision, the RO denied service connection because the evidence did not demonstrate that the disability was incurred in or aggravated by service. The Veteran filed a timely notice of disagreement (NOD), and perfected the appeal following the June 2016 statement of the case (SOC). Evidence submitted since the final May 2008 rating decision consists of private and VA treatment records, and the Veteran's statements. Private treatment records include a statement by the Veteran's private cardiologist that his current heart disability is not related to his pre-existing rheumatic fever disability. VA treatment records show continuous treatment for several heart conditions simultaneously. The Veteran's statements reiterate his contention that at least one of his heart conditions had its onset during service. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the May 2008 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the service connection claim and raises a reasonable possibility of substantiating the claim. Thus, the claim of service connection for a heart disability is reopened and will be discussed on the merits below. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection is also available for a preexisting condition, provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Under VA regulations, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. However, aggravation may not be conceded where, on the basis of all of the evidence of record, the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board has considered the Veteran's contention that he was informed in December 1964 that his heart disability was service-connected but was found to be less than 10 percent disabling. A review of the electronic record shows that the December 1964 letter noted that in order to establish a disability compensation claim, the Veteran's disability must have been incurred or aggravated in service, and must be more than 10 percent disabling. The Veteran's rheumatic heart disease was noted on the letter as having not been incurred or aggravated by service. The Veteran's contention is therefore not substantiated. VA and private treatment records indicate the Veteran has a multi-faceted cardiac disability picture. He has been diagnosed with coronary artery disease, congestive heart failure, supraventricular arrhythmia, heart block, cardiomyopathy, and rheumatic heart disease, and has an implanted cardiac pacemaker (ICP) and an automatic implantable cardioverter defibrillator (AICD), in addition to three STENTs. With regards to his current claim, the Veteran's contends his heart block disability, which resulted in a permanent pacemaker implant in 1996 and for which he has undergone several surgeries since then to repair or replace, was not a pre-existing disability but a condition that had its onset in service. The Veteran's March 1953 report of medical examination pre-induction indicated a cardiac abnormality. The Veteran reported having a bout of rheumatic fever and rheumatic heart disease as a teenager. In December 1953, during basic training, the Veteran reported to sick call for a routine checkup and was admitted to the base hospital for further tests. His physical examination was negative except for a systolic murmur with marked sinus arrhythmia. An echocardiogram revealed a first degree heart block with wandering pacemaker. He did not demonstrate symptoms of a cardiac disability while in the hospital. Upon discharge from the hospital, the examiner noted the Veteran did not have active rheumatic fever, but that "in all probability" the Veteran had minor residual cardiac changes. The Veteran was found fit to return to duty and was given a diagnosis of "rheumatic heart disease, inactive, n.e.c., heart block, second degree, wandering pacemaker AV block." His permanent PUHLES profile was amended to "3." His October 1955 separation examination noted a diagnosis of "rheumatic heart disease, inactive, n.e.c., with second degree heart block, intermittent." There were no complaints, additional diagnoses or treatments for a heart block disability in service. The Veteran's rheumatic fever and related heart disease were noted on his pre-induction entrance examination. Therefore, these conditions are considered pre-existing conditions, and only an aggravation of these conditions can be service-connected. See 38 C.F.R. § 3.306. While the Veteran contends that his AV block diagnosis had its onset in service, as noted by the December 1953 diagnosis, the December 1953 notation of a "heart block" or "wandering pacemaker AV block" is a reiteration of his pre-existing condition and not a diagnosis of a new cardiac condition. As noted above, the Veteran was admitted to the hospital to conduct further tests prior to assignment after only six weeks in the military. His permanent profile was amended and he was recommended for sedentary assignments after basic training. Therefore, the diagnosis of "heart block" and "wandering pacemaker AV block" are not diagnoses of a new heart condition that had its onset in service. At the June 2016 VA medical examination, the Veteran reported several cardiac diagnoses, including heart block and rheumatic heart disease. The examiner opined the Veteran's heart block disability was not caused by his military service because the diagnosis of a heart block in service was "a complication of the rheumatic fever." In an addendum opinion, the examiner noted that the Veteran's current heart block disability "was not aggravated beyond its natural progression by the AV block during service." The preponderance of the evidence is against service connection for a heart disability, claimed as AV block and wandering pacemaker. The probative medical evidence indicates the Veteran's current heart block disability, diagnosed in 1996 after more than 40 years from service, was not incurred in service nor aggravated beyond its natural progression during service. The Board has considered the October 2011 medical opinion of the Veteran's private cardiologist, in which he states that several of the Veteran's heart conditions, to include conduction abnormality requiring a permanent pacemaker, were "completely separate" from the Veteran's history of rheumatic fever. This opinion is conclusory; is not explained and does not provide the Board with sufficient analysis to consider and weigh his opinion. It does not provide a fact-based explanation for his conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The opinion is also not probative to the question of whether the Veteran's claimed heart diagnoses were incurred in or aggravated by service. In comparison, the June 2016 VA medical opinions are highly probative. The examiner reviewed the record for any fact-based objective evidence of symptoms related to a heart disability during and after service, to include aggravation, and acknowledged the Veteran's medical history of rheumatic fever and heart disease, as well as the Veteran's complex cardiac condition. The Veteran has continuously indicated throughout the appeal that his current heart disability, claimed as AV block and wandering pacemaker, is a result of his military service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current heart disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran has a multi-faceted cardiac disability picture, to include heart block, which requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to service. Since the Veteran's current heart disability was not related to service, the claim for service connection is denied. VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a heart disability is granted. Service connection for a heart disability, claimed as AV block and wandering pacemaker, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs