Citation Nr: 1805851 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 15-02 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for ischemic heart disease (IHD). 2. Entitlement to service connection for IHD. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Ralph J. Branch, Esq. ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to December 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. 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) (2012). The Veteran's claims for service connection for IHD and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT Evidence associated with the claims file since December 2007 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for IHD. CONCLUSION OF LAW Evidence received since the December 2007 BVA decision that denied service connection for IHD which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.1100, 20.1104 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the veteran. New and Material Evidence In a January 2006 rating decision, the RO denied the Veteran's claim for service connection for a heart condition. In December 2007, a BVA decision denied the Veteran's claim for service connection for IHD on the basis that the Veteran did not have a current heart condition. The Veteran did not appeal the Board decision. When a rating decision issued by the RO is affirmed by the Board, that determination is considered final. See 38 U.S.C.A. § 7104 (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2017). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). At present, the Veteran has submitted numerous medical records that show recent medical treatment for transient ischemic attacks and chest pains. Specifically, medical records from the Kansas City VA Medical Center (VAMC) indicate transient ischemic attack and chest pains as an active problem for the Veteran. Private medical treatment records note that Veteran was treated for chest pain in August 2016. These medical records indicate the Veteran is experiencing symptoms that could be associated with IHD. Presuming the credibility of this evidence, this evidence is new and material. Reopening of the Veteran's claim for service connection for IHP based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011). ORDER New and material evidence having been received, the claim for service connection for IHD is reopened. REMAND As noted above, the Veteran has submitted credible medical evidence of symptoms that could be associated with IHD. In an earlier rating decision, the RO found that the Veteran in this case had qualifying service during the Vietnam Era to be presumed to have been exposed to herbicides. IHD is one of the diseases presumptively associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). In addition, the Veteran is currently service connected for diabetes mellitus type II, a disease closely associated with numerous cardiovascular diseases. The Veteran has not yet been afforded a VA examination to determine if he has a current diagnosis of IHD. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81(2006). With respect to the above factors, the Veteran has submitted competent evidence of a current disability. At present, without a current VA examination, the record lacks sufficient evidence to determine the Veteran's claim. The appeal seeking TDIU is inextricably intertwined with the service connection claim being remanded at this time, as development of the evidence and the outcome of the pending service connection claim may impact the outcome of the TDIU claim. A grant of service connection, and recognition of the Veteran's disabilities as related to his IHD, may be pertinent to the intertwined TDIU claim on appeal. Thus, the Board must defer final adjudication of the TDIU issue until the directed development necessary for determining the Veteran's service connection for IHD claim has been accomplished. The Court has held that two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for an examination with an appropriate clinician for his heart condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must determine whether the Veteran has IHD. If the Veteran does NOT have IHD, the examiner must provide all relevant diagnoses for the Veteran's heart. For each diagnosis rendered, the examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart condition began during active service, or is related to an incident of service, or began one year after discharge from active service. b. Whether it is at least as likely as not that the Veteran's heart condition was proximately due to or the result of his service-connected diabetes mellitus. c. Whether it is at least as likely as not that the Veteran's heart condition was aggravated by his service-connected diabetes mellitus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet App 268 (1998). 3. Thereafter the AOJ should re-adjudicate the Veteran's claims for service connection for a heart condition and entitlement to a TDIU on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. Thereafter, the Veteran and his representative should be given opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).