Citation Nr: 20051696 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 10-15 886 DATE: August 4, 2020 ORDER New and material evidence has not been received, and the petition to reopen the claim of service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a heart disorder, to include as secondary to an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder was denied in an October 1996 Board decision. 2. The evidence received since the October 1996 Board decision is not new and material and does not raise the possibility of substantiating the claim. 3. The Veteran does not have a heart disorder that was manifest in service, within one year following separation from service, or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen a claim for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a heart disorder to include as secondary to an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to September 1985. The issues arise from a July 2009 rating decision that declined to reopen a claim for service connection for an acquired psychiatric disorder and entitlement to service connection for a heart disorder. In response to a travel Board hearing request the Veteran was scheduled to appear in February 2012. In a January 2012 report of contact, the Veteran withdrew his hearing request. Thus, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). The Board remanded the issues in November 2013 and September 2018 for further development to include obtaining a complete copy of the Veteran’s personnel records and any outstanding VA treatment records. New and Material Evidence A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (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 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. The AOJ initially denied the Veteran’s service connection claim for an acquired psychiatric disorder (claimed as personality disorder with depression) in a June 1991 rating decision. At that time, the relevant evidence of record consisted of the Veteran’s service treatment records (STRs), a VA psychiatric examination, and VA treatment records. Upon review of this evidence, the AOJ denied the claim based on no evidence of a chronic psychiatric disability in service that had continued to the present. The Veteran was notified of this decision and of his appellate rights and filed a timely notice of disagreement (NOD) and substantive appeal. A July 1993 Board of Veterans’ Appeals decision recharacterized the appeal as entitlement to service connection for an acquired psychiatric disorder and remanded the issue for all available treatment records not already of record and a new VA examination. After several attempts to locate the Veteran and notify him of his scheduled VA examinations, the Board, in an October 1996 decision determined all reasonable efforts had been made and no further assistance to the Veteran was required. The Board denied the claim for service connection for an acquired psychiatric disorder based on the evidence showing the Veteran’s one time psychiatric treatment in service was not chronic and any current psychiatric symptoms were not linked to the in-service event. The Veteran was notified of this decision and did not file an appeal and therefore the Board decision is final. 38 C.F.R. § 20.1100. Evidence received since the October 1996 Board decision includes VA treatment records that show a diagnosis of an acquired psychiatric disorder. While new in the sense that the records were created after the last prior denial of the claim, the records document essentially the same complaints that were already considered in that last decision; the records are cumulative of those already considered, and do not establish that the current acquired psychiatric disorder is related to service. Consequently, as no new and material evidence has been presented, this claim is not reopened. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 2. Entitlement to service connection for a heart disorder to include as secondary to an acquired psychiatric disorder The Veteran asserts that his currently diagnosed atrial fibrillation had its onset in service. Specifically, the Veteran has asserts that in 1981, after leg surgery for removal of a bone tumor, he experienced rapid and erratic heart rate, erratic pulse, and erratic blood pressure and was sent to the intensive care unit until it resolved. Alternatively, the Veteran asserts that his atrial fibrillation is secondary to his acquired psychiatric disorder. A review of the Veteran’s STRs shows that there were no complaints of, or treatment for, a heart condition. The October 1981 narrative summary of the excision of the osteochondroma, left distal medial femur reflects the Veteran was taken to the operating room where the osteochondroma was excised without difficulty. The post-op course was noted as uneventful and the patient was able to do straight leg raising immediately post-op. He was sent to physical therapy for rehabilitation and on October 21, 1981 he was discharged to limited duty. He was to return to the clinic in one week to have the sutures removed. As stated, post-service treatment records reflect that the Veteran has a current diagnosis of a heart condition, however, there is no evidence of a heart condition in service. In fact, post-service treatment records show that June 1989 was the first documented evidence of a heart condition when he was diagnosed with sudden onset of atrial fibrillation with rapid ventricular response, almost four years after his discharge from service. In July 1989, after another incident of chest pain and rapid heartrate, the Veteran was diagnosed with recurrent atrial fibrillation. Here, there is no evidence of an in-service incurrence of a disease or injury and there is no competent medical evidence linking the Veteran's current heart condition to the Veteran's military service. The Board has considered the Veteran's statements that he has a current heart disability that is related to service; however, the medical evidence does not show that the Veteran has a current atrial fibrillation disability that had its onset in service or is otherwise related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of atrial fibrillation falls outside the realm of common knowledge of a lay person. The Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on a complex medical question. Additionally, presumptive service connection on the basis of a chronic condition is not available for atrial fibrillation because there is no evidence it manifested within one year after service. (Continued on the next page)   As previously discussed herein, the Board is denying entitlement to service connection for an acquired psychiatric condition. Thus, as a matter of law, the Veteran cannot be awarded service connection for a heart condition as secondary to an acquired psychiatric condition. Thus, service connection must be denied on a secondary basis. See Allen v. Brown, 7 Vet. App. 446 (1995); 38 C.F.R. § 3.310. Accordingly, the preponderance of the evidence is against the claim for service connection for atrial fibrillation. The benefit of the doubt rule does not apply, and the Veteran's claim for service connection for a heart condition is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 54-56. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, Associate 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.