Citation Nr: 20023093 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 17-09 924 DATE: April 3, 2020 ORDER New and material evidence having been received, reopening of service connection for a heart disorder is granted. Service connection for a heart disorder, to include congenital aortic root disease, a myxomatous aortic valve, and aortic regurgitation, is granted. FINDINGS OF FACT 1. An August 2009 rating decision denied service connection for a heart disorder, finding that in-service chest pain was non-cardiac in nature. The Veteran did not file a timely Notice of Disagreement (NOD) following the August 2009 rating decision, and new and material evidence was not received during the one year appeal period. 2. New evidence received since the August 2009 rating decision relates to an unestablished fact of a link between the in-service chest pain and a currently diagnosed heart disorder. 3. The Veteran is currently diagnosed with the heart disorders of congenital aortic root disease, a myxomatous aortic valve, and aortic regurgitation. 4. The myxomatous aortic valve and aortic regurgitation were caused by the congenital aortic root disease. 5. It is not clear and unmistakable that the congenital aortic root disease did not worsen in severity during service. 6. During service the Veteran was treated for chest pains. 7. The chest pains treated during service were a manifestation of the later diagnosed heart disorders. CONCLUSIONS OF LAW 1. The August 2009 rating decision denying service connection for a heart disorder became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. Evidence received since the August 2009 rating decision is new and material to reopen service connection for a heart disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. It is not clear and unmistakable that the congenital aortic root disease did not worsen in severity during service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (2018). 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a heart disorder to include to include congenital aortic root disease, a myxomatous aortic valve, and aortic regurgitation have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from July 2004 to February 2005, from February 2006 to May 2007, and from May 2010 to April 2012. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied reopening of service connection for a heart disorder. The Veteran testified from New York, New York, at a February 2020 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). As the instant decision reopens and grants service connection for a heart disorder, no further discussion of VA’s duties to notify and assist is necessary. 1. Reopening Service Connection for a Heart Disorder Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. An August 2009 RO rating decision denied service connection for a heart disorder, finding that the in-service chest pain was non-cardiac in nature. The Veteran did not file a timely NOD following the August 2009 rating decision, and new and material evidence was not received during the one year appeal period following that decision. As such, the August 2009 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the August 2009 rating decision, VA received a February 2020 letter from the a VA cardiologist who had treated the Veteran since 2009. Per the medical opinion letter, the VA cardiologist opined it at least as likely as not that the later diagnosed heart disorder of aortic valvular disease was related to the chest pain experienced by the Veteran during service in 2007. Such evidence could substantiate the claim for service connection for a heart disorder. As such, the Board finds that the additional evidence is new and material to reopen service connection for a heart disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service Connection for a Heart Disorder The Veteran seeks service connection for a heart disorder that was diagnosed soon after separation from the second period of active service. Due to the complicated medical history of this case, at the outset the Board will summarize the relevant evidence of record. Prior to entry into the first period of service, the Veteran received an entrance examination in May 2004. The heart was found to be normal at service entrance. Prior to the second period of active service, the Veteran underwent a pre-deployment health assessment in February 2006. At the conclusion of the assessment it was found that no referral for any health problems, including cardiac problems, was warranted, and the final medical disposition found the Veteran to be deployable. In February 2007, during the second period of active service, the Veteran was referred to a cardiologist for evaluation of a three-week history of chest pain. During the examination the Veteran received a resting electrocardiogram (ECG), which the Board notes differs from a stress or exercise ECG or cardiac imaging test. At the conclusion of the examination, the diagnosis was non cardiac atypical chest pain. Upon returning from deployment, at a post deployment health assessment in April 2007, the Veteran again conveyed having chest pain or pressure during the deployment. Despite this, there was no referral for cardiac evaluation. Per an April 2008 VA cardiology consultation record, after the second period of service the Veteran underwent a routine physical at a new job, where a heart murmur was found. A VA ECG, stress test, and echocardiogram in March 2008 revealed a sclerotic aortic valve with moderate aortic regurgitation In the years following, the Veteran was routinely monitored by VA for mild to severe aortic regurgitation. Per a January 2010 VA treatment record, the aortic regurgitation was mild to moderate and stable. The Veteran was to follow-up with the VA medical provider after returning from Afghanistan (the third period of active service). While the Veteran was able to work out and even be deployed after the 2008 heart disorder diagnosis, VA treatment records reflect that as of July 2013 the Veteran was being prepared for valve replacement surgery. The heart disorder continued to worsen and, in September 2014, the Veteran began complaining of increased fatigue. A heart valve replacement surgery was undertaken in October 2014. Per a July 2015 VA administrative note, a VA cardiologist reviewed the history of the Veteran’s heart disorder, noting that the Veteran had been followed by the VA cardiology clinic since April 2008 when initially diagnosed with aortic valve regurgitation. The Veteran was followed closely until 2014, when surgery became necessary. At surgery, the pathology was found to be a myxomatous valve and a congenitally abnormal aortic root. In January 2017, VA obtained an opinion from a doctor concerning whether the Veteran’s heart disorder was congenital in nature. Per the opinion report, the physician opined that the myxomatous aortic valve and aortic regurgitation were likely due to the congenital aortic root disease. In February 2020 VA received an opinion letter from a VA cardiologist who had treated the Veteran since 2009. Per the letter, the VA cardiologist opined it at least as likely as not that the Veteran was experiencing aortic regurgitation during in service treatment for chest pain in February 2007. In rendering this opinion, the VA cardiologist noted the closeness in time between the treatment for chest pain and the subsequent heart disorder diagnosis soon after service separation. As to why there was not a diagnosis of aortic regurgitation during the February 2002 in-service cardiac examination, the VA cardiologist indicated that the in-service examination cursory in nature and insufficient to identify such a heart disorder. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Service connection is available for congenital diseases, but not defects, that are aggravated by service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In this regard, the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term “disease” in 38 U.S.C. §§ 310, 331, and the term “defects” in 38 C.F.R. § 3.303(c), as being mutually exclusive. “Disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing Dorland’s Illustrated Medical Dictionary 385 (26th ed. 1974)). On the other hand, the term “defect,” viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between “disease” and “defect,” indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). Service connection is generally precluded by regulation for “defects” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). To establish service connection for a congenital defect, the evidence must show superimposed disease or injury during service. VAOPGCPREC 82-90. If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin at 396-97. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA’s Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. A veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness; rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin, 22 Vet. App. at 397 (citing Wagner, 370 F.3d at 1096). This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id. Per the above, the Veteran is currently diagnosed with the heart disorders of congenital aortic root disease, a myxomatous aortic valve, and aortic regurgitation. Further, there is some evidence of record reflecting that the myxomatous aortic valve and aortic regurgitation were caused by the congenital aortic root disease. As the evidence of record reflects that the Veteran’s congenital heart disorder is a congenital disease, as opposed to a defect, and as the Veteran was not diagnosed with a heart disorder prior to entry into the first or second periods of active service, the presumption of soundness applies. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. On the question of whether the congenital aortic root disease clearly and unmistakably preexisted service, the Board notes that, while there is evidence of record supporting that the congenital disease may have preexisted service, no opinion has been obtained on this question. Nonetheless, remand for such an opinion is not warranted because, even if the heart disability did clearly and unmistakably preexist service, the evidence does not clearly and unmistakably show that the congenital heart disease was not worsened in severity during service. The evidence of record reflects that 1) the Veteran’s congenital aortic root disease was asymptomatic at service entrance, and 2) the currently diagnosed aortic regurgitation was caused by the congenital aortic root disease. As discussed above, in a February 2020 opinion letter, the Veteran’s VA cardiologist of many years opined that the Veteran’s in service chest pains were a manifestation of the later diagnosed aortic regurgitation. As the evidence reflects that during the Veteran’s second period of service the previously asymptomatic heart disorder manifested as aortic regurgitation causing chest pains, it cannot be said that it is clear and unmistakable that the congenital heart disease was not worsened in severity during service. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner at 1096. Having reviewed all the evidence of record, lay and medical, the Board finds that the chest pains treated during service were a manifestation of the later diagnosed heart disorders. As discussed above, during the second period of active service the Veteran was treated for chest pains in February 2007. Soon after separating from service in May 2007, a heart murmur was detected during a routine physical at a new job. The Veteran was referred to VA cardiology, and in March 2008 VA cardiac testing revealed a sclerotic aortic valve with moderate aortic regurgitation. The Veteran’s heart disorders have continued to be treated from March 2008 to the present. Again, in February 2020, VA received a letter from a VA cardiologist who had treated the Veteran since 2009, opining that it was at least as likely as not that the Veteran was experiencing aortic regurgitation during in service treatment for chest pain in February 2007. In rendering this opinion, the VA cardiologist noted the closeness in time between the treatment for chest pain and the subsequent heart disorder diagnosis soon after service separation. As to why the Veteran was not diagnosed with aortic regurgitation during the February 2002 in-service cardiac examination, the VA cardiologist assessed that the in-service examination cursory in nature and overall was insufficient to identify such a heart disorder. In sum, the Board has found that the Veteran’s heart disorder, which is congenital in nature, is a congenital disease. As the heart disorder is a congenital disease, the Board has considered the presumption of soundness in the instant matter, which was not rebutted, and service connection for a heart disorder has been considered on a direct basis. Per the above, the Veteran is currently diagnosed with the heart disorders of congenital aortic root disease, a myxomatous aortic valve, and aortic regurgitation. The myxomatous aortic valve and aortic regurgitation were caused by the congenital aortic root disease. During the second period of service, the Veteran was treated for chest pains, which a VA cardiologist has opined were a manifestation of the currently diagnosed heart disorders (as the heart disorders all stem from the congenital aortic root disease). Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a heart disorder, to include congenital aortic root disease, a myxomatous aortic valve, and aortic regurgitation, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.