Citation Nr: 1815339 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-37 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a cardiac condition. 2. Entitlement to service connection for a cardiac condition. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served in the United States Army from April 1984 to June 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (Agency of Original Jurisdiction (AOJ)). The Veteran provided testimony before the undersigned Veterans Law Judge at a June 2017 Travel Board hearing in San Antonio, Texas. A transcript of the hearing has been associated with the claims folder. FINDINGS OF FACT 1. In an unappealed April 2003 rating decision, the AOJ denied the Veteran's claim of entitlement of service connection for a cardiac condition on the basis that medical evidence did not show the condition was incurred in or aggravated by military service. 2. The evidence associated with the claims file subsequent to the AOJ's previous denial of the Veteran's service connection claim is new and material as it raises a reasonable possibility of substantiating the claim for service connection for a cardiac condition. 3. The Veteran's cardiac condition did not result from undiagnosed illness that was shown during active service; the evidence is against a finding that the currently diagnosed ischemic heart disease had its onset in service or is otherwise related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The April 2003 rating decision denying service connection for a cardiac condition is final. 38 U.S.C. §§ 5108, 7105 (2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002). 2. New and material evidence has been received to reopen the claim for service connection for a cardiac condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a cardiac condition are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained. The Veteran was provided with a VA examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes. Additionally, the VA examiner had a full and accurate knowledge of the Veteran's claimed disability and contentions, and grounded the findings on objective testing and the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA. New and Material Evidence The Veteran seeks to establish service connection for a cardiac condition. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under the applicable provisions, a claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. "Material" evidence is evidence which 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 and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been received, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. The Board must presume the credibility of evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Veteran claimed service connection for a cardiac condition in January 2003. In April 2003, upon consideration of the Veteran's service treatment records and post-service treatment records, the AOJ denied the Veteran's claim, reasoning that the claims file did not contain evidence showing a chronic cardiac condition was incurred in or aggravated by military service. The Veteran did not submit a notice of disagreement, or new and material evidence, within one year of notice of the denial. The decision, therefore, is final. See 38 U.S.C. §§ 5108, 7105 (2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002). Service treatment records, as well as a June 2014 VA examination report, associated with the Veteran's claims file indicate that he has received treatment for chest pain while in service. Additionally, the claims file contains lay statements of the Veteran concerning in-service incidents of potential cardiac-related symptoms, including shortness of breath and chest pain. The evidence is new, as it was not of record at the time of the prior denial. It is also material in that it concerns the previously missing element of service connection: evidence of incurrence of a disease or injury in service. The claim for service connection for a cardiac condition is reopened. See 38 C.F.R. §§ 3.156(a), 3.304(f); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted 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's duty to assist or through consideration of an alternative theory of entitlement). The Board observes that the AOJ has readjudicated this claim on the merits in the most recent supplemental statement of the case. Therefore, there is no prejudice to the Veteran in deciding the case at this time. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection As noted above, establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden, 381 F.3d at 1167. Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may also be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a). The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue; (2) Signs or symptoms involving skin; (3) Headache; (4) Muscle pain; (5) Joint pain; (6) Neurologic signs and symptoms; (7) Neuropsychological signs or symptoms; (8) Signs or symptoms involving the respiratory system (upper or lower); (9) Sleep disturbances; (10) Gastrointestinal signs or symptoms; (11) Cardiovascular signs or symptoms; (12) Abnormal weight loss; and (13) Menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran seeks to establish service connection for a cardiac condition. The Veteran attributes his current cardiac issues to duties performed in service. Specifically, the Veteran contends that the condition is related to a series of in-service incidents in which he experienced shortness of breath and chest pain. He also contends that the condition may be linked to an undiagnosed illness stemming from in-service exposure to sandstorms and burning pits during deployment to Saudi Arabia. Finally, the Veteran raises the possibility that his cardiac condition is linked on a secondary basis to service-connected bronchitis. Service treatment records show that the Veteran was seen in service several times for complaints of chest pain and tenderness. January 1985 health records attributed chest pain to resolving costochondritis; several other health records noted the Veteran's smoking habit, but did not provide a diagnosis. An April 1992 separation examination report noted occasional chest pain that the Veteran attributed to smoking. The examination report included normal clinical evaluations of the heart. A May 1992 radiological consultation report of the chest was normal and showed no active cardiopulmonary disease. Initially, the Board notes that the Veteran's cardiac symptoms have been medically ascribed known clinical diagnoses; specifically, post-service treatment records and VA examination reports reflect current heart-related diagnoses that qualify within the definition of ischemic heart disease. In particular, the claims file reflects diagnoses of acute, subacute, or old myocardial infarction; coronary artery disease; and stable angina. See, e.g., June 2014 and February 2015 VA Examination Reports. As such, service connection pursuant to 38 C.F.R. § 3.317 is not warranted. Moreover, the claims file does not include any competent opinion linking the Veteran's current heart condition to service or any service-connected disability; and neither the Veteran nor his representative has presented any such opinion. Rather, a June 2014 VA examiner opined that the claimed condition was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner considered the Veteran's in-service chest pain issues, but noted that they were found to be related to chest wall conditions and/or costochondritis rather than any heart condition. The examiner further noted that the Veteran was not diagnosed with a heart condition until 2003, more than 10 years after discharge. The examiner also noted that service records did not document persistent elevation of blood pressure consistent with heart disease-related hypertension. With regards to the issue of secondary service connection and aggravation, the examiner opined that it was less likely than not that the Veteran's cardiac condition was related to service-connected bronchitis. In support of this opinion, the examiner cited medical literature indicating that bronchitis is not an established risk factor for atherosclerotic cardiovascular disease and it is not a coronary artery risk equivalent. In February 2015, based upon review of the record, another VA examiner opined that it was less likely than not that the Veteran's current cardiac condition was attributable to in-service exposure events involving environmental hazards such as burn pits, inhalation of fine grain sand, fuel or solvent fumes, insecticides, pesticides, or multiple vaccines. With regards to the issue of any undiagnosed illness or medically unexplained chronic multisymptom illness, the examiner noted that the Veteran's cardiac diagnoses represented diagnoses with clear and specific etiology. The Board finds that the medical opinions rendered by the VA examiners are persuasive and assigns them greater probative weight than the lay statements of record. The opinions of the VA examiners were rendered by medical professionals with the expertise to opine on the matter at issue in this case. The examiners addressed the Veteran's contentions and based the opinions on a review of the claims folder to include consideration of the in-service history and the nature of the Veteran's current cardiac condition. The opinions are consistent with the historical record to include the Veteran's service and post-service treatment records. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. For the reasons detailed above, the Board must find against the Veteran's claim for service connection. In making this decision, the Board notes that the Veteran is competent to report chest pain and the circumstances surrounding such symptoms. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the etiology of his cardiac condition falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the opinions of the VA examiners are far more probative and persuasive as to the etiology of the Veteran's disability. In sum, the most probative evidence of record preponderates against finding that the Veteran's cardiac condition is related to service. While the service treatment records show complaints of chest pain, such appears to be acute and a chronic disability resulting therefrom is not shown by the record. The Board has considered the applicability of establishing service connection on the basis of continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis under 38 C.F.R. § 3.309(a), but finds that the competent medical examiner assessments in service and after service have found that his complaints of chest pain and shortness of breath were not medically attributable to an underlying cardiac condition. Accordingly, the claim is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. ORDER New and material evidence was received sufficient to reopen the claim for a cardiac condition. Entitlement to service connection for a cardiac condition is denied. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs