Citation Nr: 21004792 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-14 645 DATE: January 28, 2021 ORDER Application to reopen a claim of entitlement to service connection for a heart disorder including bradycardia and Ischemic Heart Disease is granted. REMANDED Entitlement to service connection for a heart disorder including bradycardia and Ischemic Heart Disease is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. An August 2016 rating decision earlier denied the Veteran’s application to reopen the claim of service connection for a heart disorder including bradycardia and Ischemic Heart Disease, he did not appeal that decision, he did not thereafter submit new and material evidence within the one-year appeal period, and VA did not subsequently obtain and associate with the claim’s file VA treatment records generated within the one-year appeal period. 2. Evidence received since the August 2016 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for a heart disorder including bradycardia and Ischemic Heart Disease, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2016 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for a heart disorder including bradycardia and Ischemic Heart Disease is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1960 to August 1964 and the United States Air Force from June 1965 to May 1972 which service included service in the Republic of Vietnam. In a February 2020 decision the Board of Veterans’ Appeal (Board), among other things, denied the Veteran’s claims of service connection for bradycardia, headaches, and tinnitus. The Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the February 2020 Board decision to the extent that it denied the Veteran’s claims of service connection for bradycardia, headaches, and tinnitus. Initially, given the JMPR as well as the statements from the Veteran and his representative found in the record, the Board has recharacterized the appellant’s claim for bradycardia as a claim for any heart disorder including bradycardia and Ischemic Heart Disease. Next, and as will be explained in more detail below, given the finality of the August 2016 rating decision, the Board finds that the issues on appeal now includes an application to reopen the claim of service connection for any heart disorder including bradycardia and Ischemic Heart Disease. Lastly the Board notes that, while in November 2020 it Remanded the Veteran’s claim for a total rating based on individual unemployability (TDIU), the current decision will not address this issue because the development required in the Remand has not been completed and this issue has not again been certified to the Board. It appears that the RO may be waiting for the actions from the Court, cited above, but this is not clear. The Application to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. In Lang v. Wilkie, 971 F.3d 1348 (2020) the United States Court of Appeals for the Federal Circuit overruled, in pertinent part, Turner v. Shulkin, 29 Vet. App. 207 (2018), by holding that a VA adjudicator does not need actual knowledge of VA-generated medical records created within one year following a VA decision to establish constructive receipt for the purposes of applying 38 C.F.R. § 3.156(b) because VA has constructive knowledge of these records. With the above criteria in mind, the record shows that an August 2016 rating decision earlier denied the Veteran’s application to reopen his claim of service connection for a heart disorder including bradycardia and Ischemic Heart Disease. The decision denied his claim because, in substance, there was no link between the Veteran’s current heart disorder and his military service. The Veteran did not appeal the August 2016 rating decision. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of the August 2016 rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the August 2016 rating decision that were new and material evidence. See Lang, supra; Turner, super. Accordingly, the Board finds that the August 2016 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final August 2016 rating decision, the Veteran and/or his representative has filed with VA statements in support of the claim and arguments which for the first time provided evidence that a current heart disorder could be due to the appellant’s military service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Therefore, because a link to service is a condition precedent for establish service connection (see 38 C.F.R. § 3.303) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that these statements and arguments are new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a heart disorder including bradycardia and Ischemic Heart Disease is remanded. As to the claim of service connection for a heart disorder including bradycardia and Ischemic Heart Disease, the JMPR vacated and remanded the February 2020 Board decision, in part, because the July 2016 VA examiner reported that he did not have the needed medical records in his possession (i.e., two recent stress tests (one nuclear and one treadmill)) to provide an opinion as to whether the Veteran had Ischemic Heart Disease. The Board also does not find the July 2016 VA examination adequate because, while the examiner diagnosed the Veteran with bradycardia, he did not provide an etiology opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Board finds that a Remand is required to provide the Veteran with a new VA examination to obtain needed medical opinions as to the diagnoses of the Veteran’s heart disorders including bradycardia and Ischemic Heart Disease as well as to obtain etiology opinions as to these heart disorders. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Next, the Board notes that while the July 2016 VA examiner specifically noted that the Veteran had medical evidence which would help in ascertaining if he had Ischemic Heart Disease (i.e., two recent stress tests (one nuclear and one treadmill)) and the record contains an April 2016 Lexiscan Stress Test from Advanced Heart Care Group and a May 2016 Stress Test from St. Elizabeth Hospital it is unclear if these are the two stress tests referenced by the July 2016 VA examiner. Therefore, while the appeal is in Remand status clarification as to this point should be obtained from the Veteran and, if the stress tests are not part of the record, action should be taken to obtain and associate them with the record. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 19.9. The Board also finds that a Remand is required to obtain other outstanding medical records. Specifically, while the record shows that the Veteran has been in receipt of Social Security Administration (SSA) disability since August 2008 and in January 2021 the RO requested his records from Joslin Diabetes Center and Dr. Steven Taylor, these records also do not appear in the claims file. Therefore, the Board finds that while the appeal is in Remand status the RO should attempt to obtain and associate with the claims file the above missing records as well as any other outstanding and pertinent VA and private medical records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that medical records upon which an award of Social Security disability benefits has been predicated are relevant to VA claims for service connection and an increased rating). Entitlement to service connection for headaches and tinnitus are remanded. As to the claims of service connection for headaches and tinnitus, the Board notes that the JMPR reported that these claims were inextricably intertwined with the above claim for a heart disorder because the Veteran and/or his representative claim they are due to his heart disorder. Therefore, while the JMPR does not include any rational as to how the claimed heart disorder could cause or aggravate the Veteran’s headaches and tinnitus, the Board is nonetheless obligated to Remand these issues to await the RO’s development and readjudication of the above heart disorder claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). These issues are REMANDED for the following actions: 1. Associate with the record the Veteran’s records held by the SSA. All efforts to obtain these records should be fully documented in the record. 2. Associate with the record any outstanding VA treatment records. 3. Contact the Veteran and ask him if the April 2016 Lexiscan Stress Test from Advanced Heart Care Group and the May 2016 Stress Test from St. Elizabeth Hospital are the stress tests he talked about with the July 2016 VA examiner. If they are, no further action is required. If they are not, the Veteran should be asked to submit this evidence or authorizations for VA to obtain these two stress tests. All efforts to obtain these records should be fully documented in the record. 4. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records including from Joslin Diabetes Center and Dr. Steven Taylor. If possible, the Veteran (or his representative) should submit the records cited above himself to expedite action on this case. Any help would be of great assistance to the Board. 5. After undertaking the above development to the extent possible and associating the medical records with the claims file, provide the Veteran with a VA examination to obtain medical opinions as to diagnoses and origins of his heart disorders. In order to comply with the JMPR the claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for all heart disorders diagnosed during the pendency of the appeal including at the current VA examination. If the Veteran’s heart diagnoses do not ever include Ischemic Heart Disease, the examiner must say so. b. Provide an opinion as to whether it is at least as likely as not that any of the Veteran’s heart disorders had its onset directly during his service or is otherwise related to any event or injury during his service to include his presumptive exposure to herbicides due to his documented service in the Republic of Vietnam during the Vietnam War. c. Provide an opinion as to whether any heart disorder manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records and post-service records. In order to comply with the JMPR, the examiner should consider and discuss the significance, if any, of the April 2016 Lexiscan Stress Test from Advanced Heart Care Group and May 2016 Stress Test from St. Elizabeth Hospital already found in the record as well as any other stress tests that are obtained due to the above development. In providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology. In providing the etiology opinion the examiner cannot rely on the fact that any diagnosed heart disorder is not a presumptive disorder. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. If, and only if, the heart examiner opines that any of the Veteran’s heart disorders are due to his military service, provide the appellant with a VA examination to ascertain the origins of his headaches and tinnitus. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not that headaches and/or tinnitus had its onset directly during his service or is otherwise related to any event or injury during his service to include his presumptive exposure to herbicides due to his documented service in the Republic of Vietnam during the Vietnam War. b. Provide an opinion as to whether it is at least as likely as not that headaches and/or tinnitus were caused by the heart disorder. c. Provide an opinion as to whether it is at least as likely as not that headaches and/or tinnitus were aggravated by the heart disorder. In providing answers to the above questions the examiner should consider and discuss the service treatment records and post-service records. In providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.