Citation Nr: 21066864 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-26 352 DATE: November 2, 2021 ORDER Service connection for heart disease is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative disk disease of the lumbar spine is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a nerve disability is remanded. FINDING OF FACT Heart disease was not manifest during active service or within one year of service, nor is it etiologically related to service. CONCLUSION OF LAW The criteria for service connection for heart disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty for training from April 1, 1975 to September 26, 1975and served on active duty from August 1978to March 1979. In April 2019, the Board denied reopening claims of entitlement to service connection for a back disability and left knee disability, and denied claims of entitlement to service connection for heart disease, a nerve disability and an acquired psychiatric disability. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In an Order dated in February 2020, and pursuant to a January 2020 Joint Motion for Remand (Joint Motion), the Court vacated the Board's April 2019 decision and remanded the issues to the Board for development as stipulated in the Joint Motion. These matters were before the Board in June 2020 when they were remanded for additional development. A May 2021 rating decision awarded service connection an acquired psychiatric disability (characterized as chronic adjustment disorder with depressed mood). As this claim has been granted in full, it is no longer before the Board for appellate consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In July 2021, the issues of entitlement to service connection for heart disease and a nerve disability were remanded by the Board for additional development. Service Connection for Heart Disease Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cardiovascular-renal disease, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) show the Veteran was seen in service for complaints of chest pain; the diagnoses were Tietze syndrome and chest wall syndrome. See September and October 1978 STRs. STRs are, however, silent for any diagnoses or treatment for a heart disability. Notably, a February 1979 report of medical history notes no history of heart trouble and a February 1979 separation examination report notes that a clinical evaluation of the heart was normal. Following service, private outpatient treatment records date the Veteran's diagnosis of coronary artery disease in August 2015. The Veteran submitted his service connection claim that same month. The Veteran underwent a VA examination in August 2021; the diagnoses were coronary artery disease and stable angina. The Veteran reported he began experiencing chest pain around 2012. He also reported being treated with aspirin for chest pain associated with physical training exercises in service. After reviewing the evidence of record, the examiner opined that the Veteran's heart disabilities, diagnosed in 2015, were less likely than not incurred in or caused by his military service. In this regard, the examiner stated: The [V]eteran reports that his chest pains were associated with physical activities. Chest pain can be result of many conditions to include chest pains associated with artery blockage, however after reviewing the [V]eteran's service treatment records it [is] unlikely that the [V]eteran's chest pains were associated with coronary artery disease. The [V]eteran's separation exam in 1979 [did] not indicate that the [V]eteran had an ongoing issue with chest pains during service. It would be reasonable to say that chest pains related to coronary artery disease would [have] required medical attention soon after separation from service. The [V]eteran had a cardiac catherization in 2015 with the impression of non obstructive coronary artery disease. This examiner have consider [sic] the [V]eteran's history of his condition and reviewed the evidence in the service treatment records and it is this examiner [sic] opinion that the chest pains that the [V]eteran experienced during service was not proximate to a coronary artery disease. Based upon the evidence of record, the Board finds that a heart disability was not manifest during active service or within one year of service, and that the evidence does not support a finding that that this disability is etiologically related to service. As to direct service connection, the Board finds that the most probative evidence of record supports a finding that current heart disability is not related to service. See 38 C.F.R. § 3.303. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis related to heart disability, which supports an inference that heart disease was not present at that time. This finding is also supported by the August 2021 VA examiner who reviewed the Veteran's service records and found that there was no evidence of heart disability at that time. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection). As noted above, no complaints or findings related to a heart disability were noted until 2012 (by the Veteran's account), more than 30 years after service. Moreover, the 2021 VA medical opinion is persuasive and based upon adequate rationale. The examiner specifically found that there was no evidence the Veteran's heart disease had its onset in service or was proximately due to service. The examiner reviewed the evidence of record and adequately considered the credible lay statements and reported symptom manifestation history of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no medical opinion or other competent evidence to the contrary. The Board recognizes and appreciates the lay evidence offered by the Veteran regarding the observable symptoms he has displayed over the years. He is competent to provide evidence of his objective symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, a medically competent diagnosis for the claimed disability and initial onset dates for this diagnosis are conclusions that must be rendered by a medical professional that has the requisite training and expertise to deliver a competent deduction. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n.4 (Fed. Cir. 2007). Even if the Veteran were competent to make such nexus opinions, they are outweighed by the VA medical examiner's opinion, which was based not only upon review of the claims file and medical expertise, but also on an examination of the Veteran. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As such, the claim is denied. REASONS FOR REMAND Claims to Reopen In the January 2020 Joint Motion, the parties agreed that the Board erred in its April 2019 decision when it declined to reopen the two previously denied service connection claims without first remanding for the Agency of Original Jurisdiction (AOJ) to adjudicate the Veteran's disagreement with the AOJ's determination that he submitted an untimely Notice of Disagreement to a September 2011 rating decision that denied service connection for a back disability and a left knee disability. Therefore, the parties found that remand was required to allow the AOJ to issue a Statement of the Case (SOC) as to the timeliness issue, to include consideration as to whether the Veteran submitted a request for an extension of time to file an NOD. Following the issuance of the Court's February 2020 Order, the AOJ issued an SOC that found the NOD received in response to the September 2011 rating decision was not timely. Although the Veteran was notified he had 60 days to appeal this determination, he did not do so. This matter is now final. Additionally, pertinent VA medical records were added to the claims file in 2020 and 2021. Regarding this relevant evidence, 38 C.F.R. § 19.37 states that a Supplemental SOC (SSOC) will be furnished to an appellant and his representative when additional pertinent evidence is received after a previous SOC has been issued, unless the additional evidence received duplicates evidence previously of record which was discussed in the prior SOC. Although recent statutory provisions allow for an automatic waiver of initial AOJ review of post-substantive appeal evidence, that type of evidence must be submitted by the Veteran. See 38 U.S.C. § 7105(e). Here, the post-substantive appeal evidence was not submitted by the Veteran. Thus, the automatic waiver does not apply. Rather, this evidence was developed by VA in connection with these and other claims. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). As such, in order to afford the Veteran his full procedural rights, on remand, the AOJ must consider and address all of the evidence of record including the updated treatment records in an appropriate SSOC. See 38 C.F.R. § 19.31. Service Connection for a Nerve Disability The Veteran's nerve disability claim includes a secondary service connection argument. See August 2021 VA peripheral nerves conditions Disability Benefits Questionnaire (DBQ) and August 2021 VA medical opinion DBQ. Therefore, this claim will be remanded as intertwined with the low back claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (Continued on the next page) The matters are REMANDED for the following action: Readjudicate the issues on appeal. If any of the benefits sought on appeal are not granted to the Veteran's satisfaction, issue an SSOC that includes a review of all evidence received since the October 2017 SSOC and provide the Veteran and his representative with an opportunity to respond. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.