Citation Nr: 19123722 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 15-22 865A DATE: March 29, 2019 ORDER New and material evidence having been received, the previously, finally denied service connection claim for mitral valve regurgitation status post mitral valve repair (claimed as a heart condition) (“heart disability”), to include as due to exposure to herbicide agents, is reopened. REMANDED Service connection for a heart disability, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In a February 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for mitral valve regurgitation status post mitral valve repair (claimed as a heart condition). The AOJ notified him accordingly on March 3, 2011. Neither a notice of disagreement (NOD) nor new and material evidence was received within one year of the March 2011 notice. 2. New and material evidence that raises a reasonable possibility of substantiating the service connection claim for mitral valve regurgitation status post mitral valve repair has been received since the February 2011 rating decision. CONCLUSIONS OF LAW 1. The February 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. The criteria for reopening the service connection claim for a heart disability have been met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1970, to include verified “in-country” Vietnam service from January 1968 to August 1969. See DD Form 214. He testified before the undersigned Veterans Law Judge during a December 2018 video conference hearing and the transcript is of record. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations were provided in the July 2015 Statement of the Case (SOC) and will not be repeated here in full. The Veteran seeks service connection for a heart disability, which he contends is related to his conceded exposure to herbicide agents during active service. The appeal is reopened and remanded for development. Petition to Reopen In a February 2011 rating decision, the AOJ denied service connection for mitral valve regurgitation status post mitral valve repair. The AOJ denied presumptive service connection based on his conceded exposure to herbicide agents during active service because he had no current diagnosis of ischemic heart disease (IHD), a specific heart condition presumptively related to such exposure. See 38 C.F.R. § 3.309(e). The AOJ also found there was no evidence showing his mitral valve regurgitation status post mitral valve repair was incurred in or aggravated by service, or that it manifested to a compensable degree within one year of service. The AOJ notified him of that decision on March 3, 2011. VA did not receive either a NOD or new and material evidence within one year of the March 2011 notice. Although additional medical evidence was received during that period, it did not raise a reasonable possibility of substantiating the claim. See VA treatment records received in September 2011; see also December 2011 VA cardiac examination. Specifically, this evidence did not show either a current IHD diagnosis or suggest that the Veteran’s non-ischemic heart condition may be directly related to service in any way (including his conceded herbicide agent exposure). Therefore, the February 2011 rating decision became final. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the AOJ characterized the issue. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). Here, since the February 2011 rating decision, VA treatment records have been received showing coronary artery disease (CAD) listed among the Veteran’s active medical problems. See, e.g., multiple primary care notes by Dr. D.R.N. received in January 2016, dated May 2013, September 2013, January 2014, October 2014, October 2015, November 2015, and December 2015. This evidence raises a reasonable possibility of substantiating the service connection claim for a heart condition. As this additional evidence was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, the evidence is new and material. See 38 C.F.R. § 3.156. Therefore, the claim is reopened. As discussed further below, the claim must be remanded for further development prior to adjudication. REASONS FOR REMAND The appeal is remanded for the following development. The Veteran identified relevant, outstanding private treatment records in his 2018 Board hearing testimony and other statements of record. A remand is required to allow VA to obtain authorization and request them. If they are unavailable, then the AOJ must advise him accordingly and give him an opportunity to submit the records. Moreover, as discussed above, various VA problem lists in primary care notes reference a CAD diagnosis. However, no diagnostic reports or other specific clinical findings in support of that diagnosis appear to be of record. The AOJ must attempt to obtain all outstanding, pertinent VA treatment records, including any relating to this diagnosis. Finally, if any newly obtained medical records suggest the Veteran’s non-ischemic heart condition may be directly related to service, to include his conceded exposure to herbicide agents, then the AOJ must request a VA nexus opinion.   The matter is REMANDED for the following action: 1. Obtain all VA treatment records from the Tampa, FL VA Healthcare System and the Northport, NY VA Medical Center (VAMC), and all outpatient clinics associated with those facilities, that reference cardiac complaints, treatment, or diagnoses, including specifically coronary artery disease (CAD) and/or ischemic heart disease (IHD), from February 2005 through the present. See multiple Pasco Outpatient Clinic primary care notes by Dr. D.R.N. listing CAD among active problems, e.g.: May 2013, September 2013, January 2014, October 2014, October 2015, November 2015, December 2015. Note: In this context, “ischemic heart disease” for VA purposes includes, but is not limited to: acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). If any obtained VA treatment records reference cardiac diagnostic tests or other cardiac records in records systems other than CAPRI, to include Vista, then the AOJ also must obtain those records. 2. After obtaining the necessary releases from the Veteran, request all outstanding medical records from all unspecified private / non-VA provider(s) whom the Veteran referenced during the 2018 Board hearing, including but not limited to all providers who conducted cardiac diagnostic testing as recently as 2017 to 2018. Document any negative responses. If any private treatment records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records. If additional, relevant care is referenced in these private treatment records, then attempt to obtain records of that care as well. For the Veteran’s reference, below is a summary of the pertinent non-VA treatment records that are currently in the claims file: - Private cardiology treatment records, Dr. M.K., dated approximately 2001 through 2008 (received by VA in January to February 2006 and October 2010); - Private primary care treatment records, Dr. L.P.S., dated approximately early to mid-2000s. 3. If any newly obtained evidence confirms a current diagnosis of IHD (to include CAD), then DO NOT schedule a VA medical opinion. 4. If and only if any newly obtained medical evidence suggests the Veteran’s current, non-ischemic heart condition (mitral valve regurgitation status post mitral valve repair) may be related to active service, then schedule a VA medical opinion to address the following: Is it at least as likely as not that the Veteran’s current non-ischemic heart condition is related to active service, to include his conceded exposure to herbicide agents? The examiner must answer this question without regard to whether the Veteran’s non-ischemic heart condition is presumptively associated with exposure to certain herbicide agents under applicable regulations. The examiner must provide a full supporting rationale and note his or her review of the complete claims file, including this remand. If any finding is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel