Citation Nr: 18153054 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-18 070 DATE: November 27, 2018 ORDER The petition to reopen the claim of entitlement to service connection for atrial fibrillation is granted. Entitlement to service connection for atrial fibrillation as secondary to service-connected posttraumatic stress disorder is denied. FINDINGS OF FACT 1. The Veteran’s original claim for service connection for atrial fibrillation was denied by a November 2010 rating decision. The Veteran did not perfect an appeal of that decision. 2. Since the November 2010 rating decision, evidence was added to the record which was not previously considered by agency decisionmakers and which relates to a previously unestablished element of the claim. 3. A preponderance of the evidence of record establishes that the Veteran’s atrial fibrillation was neither caused nor aggravated beyond its normal progression by his service-connected posttraumatic stress disorder. CONCLUSIONS OF LAW 1. The November 2010 rating decision denying the Veteran’s original claim for service connection for atrial fibrillation is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence added to the record since the November 2010 rating decision is new and material, and therefore the claim for entitlement to service connection for atrial fibrillation is reopened. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). 3. The criteria for service connection for atrial fibrillation, including as secondary to posttraumatic stress disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from October 1969 to September 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, denying a claim the RO styled as entitlement to service connection for atrial fibrillation secondary to PTSD. The Veteran testified at a hearing before the Board in July 2018. A. Petition to Reopen 1. Character of the Claim The Veteran originally filed a claim for service connection for atrial fibrillation secondary to ischemic heart disease, which claim was denied by a November 2010 rating decision. The Veteran did not appeal this decision, and it therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As a general rule, when a claim is disallowed by an unappealed decision of an RO, the claim may not thereafter be reopened and allowed, nor may a claim based upon the same factual basis be considered. Boggs v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008); 38 U.S.C. §§ 7104(b), 7105(c). The factual basis of a veteran’s claim for service connection is the veteran’s underlying disease or injury rather than the symptoms of that disease or injury. Id. at 1334, 1335. A new theory of entitlement is not a new claim. Id. at 1336 (“A new theory of causation for the same disease or injury that was subject of a previously denied claim cannot be the basis of a new claim.”); Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (“The presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence.”); Roebuck v. Nicholson, 20 Vet. App 307, 313 (2006) (“[A]lthough there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim.”). The Veteran’s previous claim denied by the November 2010 rating decision was predicated on a theory that the Veteran’s atrial fibrillation was secondary to non-service-connected ischemic heart disease. In December 2013, the Veteran styled the claim underlying this appeal as entitlement to service connection for a heart condition secondary to service-connected post-traumatic stress disorder (PTSD). Though the Veteran presently offers a different theory of causation that the atrial fibrillation is secondary to PTSD, the Board concludes that the evidence shows that the present claim is merely a new theory of entitlement and therefore is based upon the same factual basis as the claim denied by the November 2010 rating decision. Boggs, 520 F.3d at 1336; Untalan, 20 Vet. App. at 470; Roebuck, 20 Vet. App. at 313. 2. New and Material Evidence Though generally a claim based upon the same factual basis as a claim previously disallowed by an unappealed rating decision may not be reopened, an exception exists if a veteran submits new and material evidence regarding the claim. 38 U.S.C. § 5108(a). “New” evidence means evidence not previously submitted to agency decisionmakers, and “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 phrase “raises a reasonable possibility of substantiating the claim” is a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Thus, for the Veteran’s current claim to be reopened, he must have submitted new and material evidence to the record which raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). The November 2010 rating decision denied the claim for insufficient evidence that the disability was related to service. In making its decision the RO considered service treatment records (STRs) from the entirety of the Veteran’s service, a November 2002 treatment record from the Veteran’s private cardiologists, VA Medical Center treatment records from 2008 to 2010, and an August 2010 VA examination. Since the November 2010 rating decision, the Veteran attached to his January 2014 statement in support of the claim a Q&A article published by Mayo Clinic suggesting that atrial fibrillation and PTSD may be related. This evidence is competent and presumed credible, Justus v. Principi, 3 Vet. App. 510, 513 (1992); it was not previously considered by agency decisionmakers; and, it relates to the unestablished fact of a causal link between atrial fibrillation and PTSD, proof of which relates to an unestablished fact necessary to substantiate the service connection claim. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a); see 38 C.F.R. 3.304. The Board finds that the evidence raises a reasonable possibility of substantiating the claim, and therefore finds that this is new and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for atrial fibrillation. Shade, 24 Vet. App. at 121. B. Entitlement to Service Connection The Veteran contends that his atrial fibrillation is caused by his service-connected PTSD. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be disability resulting from that injury or disease. 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 granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995). To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under certain circumstances, service connection for specific diseases may be presumed if a veteran was exposed during service to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). While ischemic heart disease is enumerated among the qualifying diseases, atrial fibrillation is cardiac arrhythmia, not ischemic heart disease, and atrial fibrillation therefore is not contemplated within 38 C.F.R. § 3.309(e). Presumptive service connection based on exposure to an herbicide agent therefore is unavailable for a disability of atrial fibrillation. Having reopened the claim, the Board must evaluate the merits of the Veteran’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Veteran’s service treatment records (STRs) are silent regarding any complaints of or treatment sought for symptomology associated with atrial fibrillation. Private treatment records from November 2002 evidence that the Veteran has a diagnosis of atrial fibrillation and receives treatment for it. A January 2003 physician’s report also shows a diagnosis of atrial fibrillation after diagnostic testing. Also noted is a November 2002 hospital report written by Dr. J.C. that listed the atrial fibrillation diagnosis but did not opine on its etiology. An August 2010 VA examination found atrial fibrillation and opined that it was not a result of ischemic heart disease, as the Veteran had no diagnosis of ischemic heart disease. A May 2014 VA examination, after taking the Veteran’s history and reviewing his records, opined that it is less likely than not that the Veteran’s atrial fibrillation was caused by PTSD or aggravated beyond its natural progression by PTSD. The examiner explained that atrial fibrillation is not caused by stress but is rather due to a malfunction of the heart’s natural pacemaker. The Veteran submitted a Q&A article published online by the Mayo Clinic in which it is asserted that posttraumatic stress disorder, high blood pressure, and cardiovascular disease “can be related.” After this bare conclusion, the article proceeded to discuss PTSD in more detail. No other reasoning accompanied the article’s assertion of a causal link between PTSD and cardiovascular disease. Turning to the merits of entitlement, the Board first finds that treatment records establish that the Veteran has a diagnosed current disability of atrial fibrillation for which he continues to receive treatment. Regarding the potential of service connection on a direct basis, the Board finds that there is insufficient evidence to establish the existence of the disease or of injury during service. Service records do not show that the Veteran experienced any symptomatology in service, and indeed the Veteran’s own theory of the case is not that the atrial fibrillation was caused by service but rather is caused secondarily by the PTSD. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Regarding service connection on a secondary basis, the Board notes that the Veteran is presently service connected for PTSD. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The crux of this matter thus is whether there is sufficient evidence to establish a connection between the service-connected PTSD and the atrial fibrillation. Id. The Board concludes that the evidence establishes that it is less likely than not that the Veteran’s atrial fibrillation was caused or aggravated beyond its natural progression by the service-connected PTSD. The May 2014 VA examiner explained that atrial fibrillation is a condition caused by malfunction in the heart’s natural pacemaker, and that it cannot be caused or aggravated by stress. The Mayo Clinic article, though asserting a possible link between atrial fibrillation and PTSD, included no reasoning regarding why or how such a link might exist, whether it is a causal link or only correlative, or the magnitude of each disability’s causal influence on the other disabilities. For this reason, the Board finds the May 2014 VA examination more probative than the Mayo Clinic article. E.g., Nieves-Rodriguez. v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s statements that he believes his atrial fibrillation is caused by his service-connected PTSD, but notes that while a veteran is competent to report observable symptoms that he experiences, he is not competent to ascertain the etiology of his symptoms, as the causative factors for such are not readily subject to lay observation, and no evidence of record establishes a competence on the matter through education, training, or experience. 38 C.F.R. § 3.159; see Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Having considered the totality of both the new and the previously considered evidence of record, the Board finds that the preponderance of the evidence is against the existence of a nexus between the Veteran’s atrial fibrillation and the service-connected PTSD. 38 U.S.C. § 1110; 38 C.F.R. § 3.304, § 3.310. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, and finds that because the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable in the instant appeal. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel