Citation Nr: 21001567 Decision Date: 01/09/21 Archive Date: 01/09/21 DOCKET NO. 17-47 586 DATE: January 9, 2021 ORDER The application to reopen the previously denied claim for entitlement to service connection for coarctation of aorta is granted.    REMANDED Entitlement to service connection for coarctation of aorta is remanded. Entitlement to service connection for arterial tear is remanded. Entitlement to service connection for bladder cancer is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. In a March 2004 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim of service connection for coarctation of the aorta.  Although the Veteran was notified of the AOJ’s decision and his appellate rights in a March 2004 letter, he did not perfect an appeal within the applicable time period in regard to that claim, nor was new and material evidence received within one year of issuance of that decision.   2. The evidence received since the March 2004 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for coarctation of the aorta. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying the claim of service connection for coarctation of the aorta is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.    2. New and material evidence has been received to warrant reopening the claim of service connection for coarctation of the aorta.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to November 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2011 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, confirmed and continued the previous denial of the claim of service connection for coarctation of the aorta and denied the claims of service connection for arterial tear, bladder cancer, and erectile dysfunction. In October 2020, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the October 2020 Board hearing, the Board received testimony on a 38 U.S.C. § 1151 claim regarding the Veteran’s bladder cancer. However, the Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2019). Whether new and material evidence has been received to reopen the claim for entitlement to service connection for coarctation of the aorta Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  An exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits.  The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).    New evidence means evidence not previously submitted to agency decision-makers.  Material evidence means 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).    To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally 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.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).    The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim).   In a March 2004 rating decision, the AOJ denied the Veteran’s claim of service connection for coarctation of the aorta as the Veteran had not submitted new and material evidence since the last prior final denial of the claim of service for coarctation of the aorta that found the Veteran’s heart condition was a constitutional and developmental condition preexisting military service. Therefore, the claim remained denied.  Although the Veteran was notified of the RO’s decision and his appellate rights in a March 2004 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of issuance of that decision.  38 C.F.R. § 20.1103. Thus, this decision became final. In a June 2011 rating decision, the AOJ found that the Veteran had not submitted new and material evidence in regard to the claim of service connection for coarctation of the aorta and denied the application to reopen the claim. Evidence received since the prior final March 2004 rating decision includes the Veteran’s October 2020 Board hearing testimony contending his coarctation of the aorta did not preexist service. Given the basis for the prior denial, this evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim.  Accordingly, reopening of the claim is warranted.   REASONS FOR REMAND Entitlement to service connection for coarctation of the aorta and arterial tear The Veteran was separated from service in November 1958 when he was diagnosed with a coarctation of the aorta after presenting to sick bay with chest pain symptoms. His coarctation of the aorta was not noted on his entrance examination in February 1958. The Veteran contends that his coarctation of the aorta was not congenital, or in the alternative, if it was congenital, it was aggravated by service, to include the weather during training in Texas and the training itself. Congenital and developmental defects are not “diseases or injuries” in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. § 3.303(c), 4.9. VA’s General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Additionally, every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The presumption of soundness applies to congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390 (2009). As discussed previously, coarctation of the aorta was not noted upon entry. Here, it is unclear from the evidence of record whether the Veteran’s coarctation of the aorta was a congenital disease or defect. Therefore, an evaluation of whether the coarctation of the aorta was a congenital disease or defect is better explained by a medical professional as it is a complex assessment, and a remand for a medical opinion is warranted. In addition, the Veteran testified during his October 2020 hearing that a coarctation grew back approximately 50 to 60 years after separation from service that weakened his pulse and led to an attempt to implant a stent in his heart. However, the attempt was unsuccessful and led to an arterial tear. As the Veteran contends his arterial tear is secondary to his coarctation of the aorta, and there is no opinion addressing this contention, on remand, an opinion addressing service connection on a secondary basis is warranted. Entitlement to service connection for bladder cancer and erectile dysfunction The Veteran contends that his bladder cancer is related to herbicide agent exposure in service and that his erectile dysfunction is related to his bladder cancer. In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold under McLendon is low. The Veteran was diagnosed with erectile dysfunction in 2004 and bladder cancer in 2015. Thus, he meets the current disability requirement. The Veteran alleged during his October 2020 Board hearing that his bladder cancer is related to in-service herbicide agent exposure. However, remand is warranted for further development to verify this contention. Furthermore, as the claim for service connection for bladder cancer is being remanded, remand of the claim for service connection for erectile dysfunction secondary to bladder cancer is warranted as the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate physician to address whether the Veteran’s coarctation of the aorta was or was not a congenital disease or defect. If a congenital disease, the physician should indicate whether such disease was aggravated by service. If not a congenital disease or defect, the physician should address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s coarctation of aorta was related to service. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided.      2. Obtain an opinion from an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s arterial tear was either (a) caused or (b) aggravated by coarctation of the aorta. If aggravation is found, the physician should identify to the extent possible the baseline level of the disability prior to the aggravation.  The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided.      3. Conduct any necessary development regarding the Veteran’s contention of exposure to herbicide agents in service. Once any additional development has been completed, obtain a medical opinion from an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bladder cancer is related to service, to include herbicide agent exposure. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided.      4. Obtain an opinion from an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction was either (a) caused or (b) aggravated by bladder cancer. If aggravation is found, the physician should identify to the extent possible the baseline level of the disability prior to the aggravation.  The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided.      Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.