Citation Nr: 18159539 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-10 679 DATE: December 20, 2018 ORDER As new and material evidence has been submitted regarding the claim for service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia), the Veteran’s claim is reopened. REMANDED Entitlement to service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia) is remanded. FINDINGS OF FACT 1. By an October 2004 rating decision, the Veteran’s claim for service connection for heart arrhythmia was denied in part since this diagnosis was not shown in service or on VA examination 5 months following discharge. 2. Evidence received since the October 2004 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating a claim for service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia). CONCLUSIONS OF LAW 1. The October 2004 rating decision denying the Veteran’s claim for service connection for heart arrhythmia is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim for service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia) has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to January 1995. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to VA’s duties to notify and assist, no conceivable prejudice to the Veteran could result from this decision, given the favorable outcome (reopening and remanding). See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Therefore, no further action is needed in this regard. New evidence means 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) (2017). 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). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia). This claim was denied in an October 2004 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). The Veteran’s heart arrhythmia was denied in October 2004 in part since this diagnosis was not shown in service or on VA examination 5 months following discharge. At the time of this denial, the Veteran’s service treatment records, post-service medical records, and statements were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran and additional post-service medical records. With regard to the newly submitted post-service medical records, the claims file contains an August 2011 discharge summary from Sentara Norfolk General Hospital documenting discharge diagnoses of permanent pacemaker elective replacement, sick sinus syndrome, and a history of atrial fibrillation. A September 2010 medical record from Sentara Norfolk General Hospital noted that the Veteran was being treated for symptomatic brady-arrhythmia. As the evidence of record now shows that a heart condition exists, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia). As such, the claim for service connection for heart arrhythmia (now claimed as atrial fibrillation and atrial tachycardia) is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. REASONS FOR REMAND Additional development is need prior to the adjudication of the Veteran’s service connection claim. The Veteran asserted in his October 2012 claim that he was claiming service connection for atrial fibrillation and atrial tachycardia secondary to hypertension. On his March 2015 substantive appeal, he asserted that his heart problems began during active service and that he was told upon his retirement physical examination that he was going to need a pacemaker soon. He asserted that he had bradycardia in service, which eventually required the implantation of a pacemaker. In the November 2018 brief, the representative asserted that the Veteran’s heart condition could also be related to his service-connected left nephrectomy. On his March 1994 retirement physical, the Veteran marked “YES” to the question of whether he had ever had or currently had heart problems or angina. His March 1994 Report of Medical Examination noted a diagnosis of bradycardia. A July 1995 echocardiogram was conducted due to indication of bradycardia which showed a normal echocardiogram and doppler. A July 1995 Thallium Stress test was conducted due to indication of abnormal echocardiogram and slow heart. However, findings revealed no diagnostic abnormality. Records from 1998 from Sentara Leigh Hospital show the Veteran as having paroxysmal atrial fibrillation, bradycardia, and mild cardiac enlargement; probable athletic heart. An August 2011 private medical record noted that the Veteran had symptomatic bradycardia requiring a permanent pacemaker in January 2003. In a September 2013 medical opinion, a VA examiner determined that the Veteran’s heart arrhythmia is less likely than not due to or the result of his service-connected hypertension and is less likely as not incurred in or caused by in-service illness. This opinion did not fully address the medical evidence, however, or the complexity of this case. While the examiner concluded the Veteran had primary sick sinus syndrome, one of the signs of this condition can be bradycardia, which the Veteran had during service. https://www.mayoclinic.org/diseases-conditions/sick-sinus-syndrome/symptoms-causes/syc-20377554. This raises the question of whether his sick sinus syndrome began during service. Furthermore, the medical evidence states the pacemaker was required due to symptomatic bradycardia, while the VA examiner stated bradycardia was unassociated with the events that led to the Veteran getting a pacemaker. Considering the complexity of this case, it seems appropriate for a specialist to provide an opinion. Additionally, all outstanding VA treatment records should be associated with the claims file. The matter is REMANDED for the following action: 1. Associate all outstanding treatment records from the Hampton VA Medical Center (VAMC) (and associated outpatient clinic) from December 2014 to the present. 2. DO NOT SCHEDULE THE FOLLOWING until the VA records have been obtained to the extent possible. 3. Send the Veteran’s claims file to an examiner for an opinion as to the etiology of his claimed heart condition. Due to the medical complexity of this case, this must be done by a cardiologist. After review of the claims file, the examiner should respond to the following: a. Opine as to whether it is at least as likely as not that any of the diagnosed heart conditions began during, or were caused by, his active duty service. In providing this opinion, please discuss his in-service bradycardia. b. Opine as to whether it is at least as likely as not that any of the diagnosed heart conditions were caused or aggravated by any of his service-connected disabilities, to specifically include his service-connected hypertension and his left nephrectomy. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Durham, Counsel