Citation Nr: 1805242 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-02 768 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for status-post surgical repair of the aorta. 2. Whether new and material evidence has been received to reopen service connection for a left fifth rib removal. 3. Entitlement to an increased disability rating in excess of 20 percent for status-post thoracotomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1981 to July 1981, and from November 1981 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the RO in Indianapolis, Indiana. The Veteran testified before the undersigned Veterans Law Judge at an April 2017 Travel Board hearing in Indianapolis, Indiana. The hearing transcript has been associated with the record. The issue of an increased rating for thoracotomy residuals is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed March 1988 Board decision, in pertinent part, denied service connection for a heart disorder on the basis that the congenital defect existed prior to service and there was no evidence that the condition worsened as a result of service. 2. The evidence received since the March 1988 Board decision does not relate to an unestablished fact of superimposed injury that is necessary to substantiate the claim for service connection for a heart disorder. 3. An unappealed October 1987 rating decision, in pertinent part, denied service connection for left fifth rib removal on the basis that the removal was ameliorative, without residuals beyond the usual effects of surgical treatment. 4. The evidence received since the October 1987 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim for service connection for left fifth rib removal. CONCLUSIONS OF LAW 1. The March 1988 Board decision denying service connection for a heart disorder was final when issued. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. Evidence received since March 1988 Board decision is not new and material to reopen service connection for a heart disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The October 1987 rating decision denying service connection for left fifth rib removal became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. Evidence received since the October 1987 rating decision is not new and material to reopen service connection for left fifth rib removal. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). With respect to the issues to reopen service connection, the Veteran was provided notice in February 2010, prior to the initial adjudication in July 2010. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. The notice letters satisfied the requirements under Kent. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, service personnel records, VA treatment records, VA examination reports, a copy of the April 2017 Board hearing transcript, and lay statements. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Reopening Service Connection for Heart Disorder and Rib Removal Generally, when a claim is disallowed, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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). 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). A congenital "defect" is not a disability for VA compensation purposes. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90. Service connection is available for congenital defects only if a superimposed injury occurred during service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). For purposes of determining whether a disorder is a congenital defect or a familial disease, VA interprets the term "disease" in 38 U.S.C. § 1131, and the term "defects" in 38 C.F.R. § 3.303(c), as being mutually exclusive. Service connection is available for a congenital disease that begins during service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). "Disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed. 1974)). Heart Disorder A March 1988 Board decision, in pertinent part, denied service connection for heart disorder on the basis that the congenital defect existed prior to service and that the condition did not worsen during service. The pertinent evidence of record at the time of March 1988 Board decision includes service treatment records and the Veteran's lay statements. The Board has reviewed the evidence of record received since the March 1988 Board decision and finds that it does not qualify as new and material evidence to warrant reopening service connection for a heart disorder. While the Veteran, in a December 2009 claim, again requested service connection for a "heart surgery done in 1984" and, in an August 2010 notice of disagreement and at the April 2017 Board hearing, disputed the denial of the claim to reopen service connection for a heart disorder, he has not submitted any additional evidence tending to establish that the claimed heart disorder, as a congenital defect, either did not preexist entrance into service or that any preexisting heart disorder was worsened beyond a natural progression during active service (the basis of the March 1988 Board denial) because of a superimposed injury during service. At the April 2017 Board hearing, the Veteran testified to in-service heart surgery. The Board finds that this lay evidence is not "new" because it is redundant of evidence already considered by VA in the final March 1988 Board denial of the claim. VA considered the Veteran's general contentions that a heart disorder was related to active service in the original denial of service connection as detailed in the March 1988 Board decision. Based on the above, the evidence received since the March 1988 Board decision does not constitute new and material evidence tending to show that the preexisting heart disorder, as a congenital defect, was aggravated by active service, that is, was subjected to a superimposed injury during service. Moreover, as the heart surgery was ameliorative to repair a preexisting congenital defect, and there is no evidence of residuals beyond the usual effects of surgical treatment, the additional evidence is also not material to reopen service connection. See 38 C.F.R. § 3.306 (2017) (providing that the "usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including . . . poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service"). The Board also finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are not applicable. As a result, the newly received evidence does not raise a reasonable possibility of substantiating a claim for service connection for a heart disorder. Accordingly, the evidence received since the most recent final denial of the issue for service connection for a heart disorder in March 1988 is not new and material, and reopening the claim for service connection is not warranted. Until the evidence meets the threshold burden of being new and material to reopen the claim, reopening of the claim must be denied, and the merits-based standard of benefit of the doubt does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Fifth Rib Removal An October 1987 rating decision, in pertinent part, denied service connection for left fifth rib removal on the basis that the removal was ameliorative, without residuals beyond the usual effects of surgical treatment. The pertinent evidence of record at the time of the October 1987 rating decision includes service treatment records and the Veteran's lay statements. The Board has reviewed the evidence of record received since the October 1987 rating decision and finds that it does not qualify as new and material evidence to warrant reopening of service connection for left fifth rib removal. The Veteran, in the December 2009 claim, again requested service connection for a "missing left rib" and, in an August 2010 notice of disagreement and at the April 2017 Board hearing, disputed the denial of the claim to reopen service connection for a left fifth rib removal. Updated VA treatment records reflect that approximately one to three inches of the left rib was removed during service. See March 2010 VA treatment record. While this evidence is new, it is not material to the claim. This claim was previously denied in October 1987 because the underlying heart disorder repaired in service was congenital in nature, so necessarily pre-existed service and is not considered a disability, and the evidence did not show that the preexisting congenital heart disorder was subjected to a superimposed injury during service, that is, the evidence did not show that the preexisting congenital heart disorder was aggravated during service. The ameliorative surgery conducted during service to repair the congenital and preexisting heart disorder by definition is not a disability, and cannot constitute worsening of (aggravation by) the disability during service. By regulation, 38 C.F.R. § 3.306 specifically provides that "[t]he usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service." Thus, for the new evidence to be considered material, it must tend to show either that the heart disorder was not congenital, that the in-service surgery was not ameliorative for the pre-existing heart disability, that there was a superimposed heart injury that occurred during service, or that the surgery in service produced residuals beyond the "usual effects" of surgery. As such, the Board finds that the new evidence received is cumulative and redundant of evidence previously of record, and does not tend to show that the heart disorder was not congenital in nature, that there was a superimposed heart injury during service (aggravation by service), or that there were symptomatic residuals of the in-service surgery that were beyond the usual effects of heart surgery, to include rib removal. The evidence of records does not suggest any of these findings, including that the left fifth rib removal is beyond "the usual effects of surgery." 38 C.F.R. § 3.306. Consequently, even under the low threshold for reopening endorsed in Shade, the new evidence does not relate to a previously unestablished fact necessary to substantiate the service connection for left fifth rib removal, and reopening the claim for service connection is not warranted. See Annoni at 467. ORDER As new and material evidence has not been received, the appeal to reopen service connection for a heart disorder is denied. As new and material evidence has not been received, the appeal to reopen service connection for a left fifth rib removal is denied. REMAND Increased Rating for Thoracotomy Residuals Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95; Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The evidence suggests that the service-connected thoracotomy residuals may have worsened. At the April 2017 Travel Board hearing before the undersigned, the Veteran testified that the thoracotomy residuals had worsened in severity since the last VA examination. See April 2017 hearing transcript. As such, a new examination is needed to help determine the severity of the service-connected thoracotomy residuals, which have been rated as a muscle injury. Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issue. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The record reflects that the Veteran has received VA treatment for the service-connected thoracotomy residuals. On remand the AOJ should attempt to obtain any outstanding VA treatment records concerning the remanded issue that is not already of record. Accordingly, the issue of an increased rating for thoracotomy residuals is REMANDED for the following action: 1. Obtain any outstanding VA treatment records pertaining to the thoracotomy residuals and associate them with the record. Any negative responses should be properly documented in the record, to include following the procedures outlined in 38 C.F.R. § 3.159(e) (2017). 2. Schedule the appropriate VA examination in order to assist in determining the current severity of thoracotomy residuals, to include a scar, protruding budge, and left fifth rib removal. The relevant documents from the record should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. The examiner should confirm review of the record in the examination report. 3. The RO should readjudicate the increased rating issue in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a Supplemental Statement of the Case. The Veteran 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs