Citation Nr: 1807400 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 15-03 632A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the Veteran's claim for service connection for heart disease, to include as secondary to herbicide exposure. 2. Entitlement to service connection for heart disease, to include as secondary to herbicide exposure, on a de novo basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from March 1953 to March 1955; September 1970 to January 1971; January 1972 to April 1972; and February 1973 to October 1979. He also had additional periods of Active Duty for Training and Inactive Duty Training. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony relevant to his claim at a November 2017 video conference hearing before the undersigned Veterans Law Judge. A transcript is in the record. The February 2011 rating decision denied the Veteran's claim for service connection for a heart disability on the basis that new and material evidence had not been submitted to reopen a previously denied claim for the same disability. Subsequent communications to the Veteran such as the Statement of the Case suggest that the claim was reopened and then denied. Regardless of RO's actions, a determination on whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383(Fed. Cir. 1996). Therefore, regardless of the RO's action, the Board must initially address the question of whether new and material evidence has been presented to reopen the claim of service connection for a heart disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). The issues have been characterized accordingly. The record indicates that the Veteran may have a second appeal for entitlement to special monthly compensation based on the need for regular aid and attendance. However, the record also suggests that development continues for that issue, and the matter has not yet been certified to the Board. Therefore, if the matter is not resolved at the RO, any appeal will eventually be the subject of a separate Board decision. 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) (2014). The issue of entitlement to service connection for heart disease, to include as secondary to herbicide exposure, on a de novo basis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Entitlement to service connection for a heart disability was initially denied in a November 2002 rating decision; the Veteran submitted a notice of disagreement with this decision and was issued a statement of the case, but did not submit a timely substantive appeal. 2. The basis for the November 2002 denial was the absence of evidence of a heart disability until many years after service, and absence of evidence relating the post-service heart disability to active service. 3. Evidence received since the most recent denial in April 2006 includes VA treatment records and the Veteran's testimony at a November 2017 hearing, which contains competent evidence that he has signs and symptoms of a current disability and indications that the signs and symptoms of the disability may be associated with herbicide exposure during active service, but insufficient evidence to make a decision. CONCLUSIONS OF LAW 1. The November 2002 rating decision that denied service connection for a heart disability is final, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.105(a), 3.156(b)(c) (2017). 2. New and material evidence has been received, and the Veteran's claim of service connection for heart disease to include as secondary to herbicide exposure is reopened. 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In this case, the Board will reopen the Veteran's claim and then remand for further development. Therefore, any deficiency in the duty to notify or assist that may have occurred was harmless error. New and Material The Veteran contends that new and material evidence has been received to reopen his previously denied claim of service connection for a heart disability. He argues that the evidence is sufficient to support a finding of a current diagnosis of a heart disability. Entitlement to service connection for a heart disability was first denied in a November 2002 rating decision. The Veteran submitted a December 2002 notice of disagreement with this decision and he was issued a statement of the case in October 2003. However, his VA Form 9 Substantive Appeal was not timely as it was not received until July 2004. New and material evidence was not received prior to the expiration of the appeal period. Therefore, the November 2002 rating decision was final, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b)(c); 20.200, 20.202, 20.302(b). A veteran may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to the VA, and 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) (2017). New and material evidence is not required as to each previously unproven element of a claim. Furthermore, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79(2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 117-20 (2010). Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83(2006). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004); 38 C.F.R. § 3.303. The Court has stated that for the purpose of determining whether or not new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis, and not only since the last time it was disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the last final decision is an April 2006 rating decision that found the Veteran had not submitted new and material evidence. Evidence considered at the time of the last final rating decision included the Veteran's service treatment records, as well as both private and VA treatment records. However, the April 2006 decision states that no evidence had been submitted to link any current heart disease to some event or occurrence in service. The Veteran's claim to have developed heart disease due to exposure to herbicides such as Agent Orange was considered but denied on the basis that the evidence did not show any in-country visits to Vietnam. Evidence received since April 2006 includes statements and testimony from the Veteran indicating he was exposed to herbicides at locations other than Vietnam, including at Diego Garcia, and at a Navy Sea Bee Installation in Gulfport, Mississippi. In fact, he states that he handled and moved barrels of herbicides at these locations. Furthermore, the Veteran testified that he landed flew into Vietnam in March or April 1973, landed, and got off the airplane in order to help unload various materials. 6/13/2008 VA 21-4138 Statement in Support of Claim, p. 1; 11/29/2017 Hearing Transcript, pp. 5-6. He has also submitted material regarding DOD Tactical Herbicide Sites which purportedly show herbicides such as Agent Orange were stored in Gulfport. 3/28/2016 Correspondence, pp. 14, 30. Finally, the Board notes that the February 2011 rating decision on appeal denied the Veteran's claim at least in part based on lack of evidence of a current disability. However, VA treatment records dated January 2016 and September 2016 state it is likely he has underlying coronary artery disease. 1/20/2017 Capri, pp. 57, 153. The Board observes that although the Veteran submitted some of his material pertaining to herbicides storage and use in conjunction with previous claims for other disabilities, he had not previously offered testimony in this regard, nor had he previously claimed to have handled the material. Therefore, the testimony is new. The doctor statements that the Veteran likely has coronary artery disease are also new, in that there are no previous diagnoses of that disability. In regards to the Veteran's testimony and statements about having landed in Vietnam and handled herbicides in Gulfport, this evidence is presumed to be credible for purposes of determining whether or not it is new and material. If there is competent evidence that a claimant has a current disability or signs and symptoms of a current disability and the record indicates that the disability or signs and symptoms of the disability may be associated with active service, then the McLendon standards have been met, and VA is obligated to reopen a claim and obtain an examination. Although there is no medical opinion that associates the Veteran's coronary artery disease to herbicides, this is a disease that by regulation is associated with herbicide exposure. 38 C.F.R. § 3.309(e). In fact, for veterans who have Vietnam service, it is presumed to be due to herbicide exposure. 38 C.F.R. § 3.307(a)(6). In other words, the very diagnosis of coronary artery disease in a claim that involves potential exposure to herbicides in service is sufficient to associate this disability with active service to the extent that it meets the "low threshold" required by McLendon. Therefore, given that evidence which is both new and material has been submitted and the McLendon standards have been met, the claim is reopened. The matter of entitlement to service connection for a heart disability on a de novo basis will be addressed in the remand section at the end of this decision. ORDER New and material evidence has been submitted to reopen the Veteran's claim for service connection for heart disease, to include as secondary to herbicide exposure; the petition to reopen is granted and the appeal is allowed to this extent only. REMAND The Veteran contends that he was exposed to herbicides such as Agent Orange while stationed in Diego Garcia and while training with his Naval Reserve Sea Bee Unit in Gulfport, Mississippi. Finally, he states that he also left his airplane while in Vietnam in order to help unload supplies, which can qualify him for service connection for herbicide related disabilities such as coronary artery disease on a presumptive basis. The Veteran's in-service exposure to herbicides has not yet been confirmed. Although his personnel records have been obtained, his presence in Vietnam has not been confirmed, and action has not been taken to verify whether or not he was exposed to herbicides at any locations outside of Vietnam. Coronary artery disease is presumed service connected for Veterans who had in-service herbicide exposure in Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. However, even if the Veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, VA must also consider the claim on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); 38 U.S.C. § 1113 (b) (2012); 38 C.F.R. § 3.304(d). The VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii.1.H.7.a addresses the verification of exposure to herbicide agents in locations other than Vietnam or Korea. In this regard, the RO is required to request VA Compensation and Pension Service (C&P Service) to verify herbicide exposure through the Department of Defense (DOD) for the timeframe delineated by a claimant. In this case, the RO did not request DOD herbicide exposure verification. Furthermore, it is the policy of the VA C&P Service for cases to be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) where the claimed herbicide exposure location or dates were not on the DOD list. In the instant case, the Board finds that the RO should attempt to verify the Veteran's alleged herbicide exposure at Diego Garcia and Gulfport, Mississippi, following the procedures provided by the C&P Service in Manual M21-1. Steps should also be taken to verify the Veteran's claimed exposure within Vietnam when he left an airplane to unload supplies following the procedures of M21-1, Part IV, Subpart ii.1.H.1.h. As described, the McLendon standards have been met. The Veteran should be afforded a VA examination in order to verify whether or not he has a current heart disability, whether or not any current heart disability is considered ischemic heart disease (so that if the Veteran's presence in Vietnam is verified, it can be presumed to have been due to herbicide exposure), and to obtain an opinion as to whether any currently diagnosed heart disability is due to active service, to include herbicide exposure in service but outside Vietnam if such exposure is verified. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Review the Veteran's personnel records to identify the dates of his service in Gulfport, Mississippi, and Diego Garcia. 2. After completing the above, follow M21-1, Part IV, Subpart ii.1.H.7.a, or its appropriate equivalent, and request verification of herbicide exposure. The provisions of M21-1, Part IV, Subpart ii.1.H.1.h or appropriate equivalent must also be followed in order to determine whether it is as likely as not that the Veteran landed in Vietnam via airplane. All findings and required memorandums must be placed in the claims file. 3. After completing #1 and #2, schedule the Veteran for a VA examination of his claimed heart disability. All indicated tests and studies should be conducted. The claims file is to be reviewed by the examiner. The RO should inform the examiner whether or not exposure to herbicides such as Agent Orange has been verified, as well as the location of this exposure. The examiner should answer the following: a) Does the Veteran have a current diagnosis of a heart disability? If yes, does the current diagnosis include a form of ischemic heart disease, such as but not limited too old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease; or Prinzmetal's angina? Please identify any form of ischemic heart disease by its diagnosis or diagnoses. b) For any and all currently diagnosed heart diseases (ischemic or not ischemic) is it as likely as not that this disability was incurred during or due to active service on any basis? c) If exposure to herbicides at a location other than Vietnam has been verified, for any and all currently diagnosed heart diseases (ischemic or not ischemic) is it as likely as not that the disability was incurred due to this herbicide exposure? The examiner should provide reasons for these opinions. If the examiner is unable to provide any requested opinion without resort to speculation, the examiner should state whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided. 4. If the benefit sought on appeal, remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order 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). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs