Citation Nr: 21066954 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-02 614 DATE: November 3, 2021 ORDER The claim to reopen service connection for congestive heart failure is granted. REMANDED Entitlement to service connection for congestive heart failure to include as secondary to service-connected posttraumatic stress disorder (PTSD) and degenerative disc disease of the lumbar spine is remanded. FINDINGS OF FACT 1. In an unappealed July 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for congestive heart failure. 2. The evidence received since the July 2012 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for congestive heart failure. CONCLUSIONS OF LAW 1. The July 2012 rating decision denying service connection for congestive heart failure is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Since the July 2012 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for congestive heart failure; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in July 2021. A transcript of the hearing has been associated with the claims folder. New and Material In general, rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "Material" evidence means 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. See 38 C.F.R. § 3.156(a). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied service connection for congestive heart failure in a July 2012 rating decision. In essence, there was no evidence of a current congestive heart failure disability as well as no evidence that congestive heart failure manifested in service. The Veteran did not file a notice of disagreement (NOD) to the July 2012 rating decision and new and material evidence was not received within one year of issuance of the rating decision. The July 2012 rating decision therefore became final. At the time of the prior final rating decision in July 2012, the record in pertinent part included the Veteran's service treatment records as well as post-service medical treatment records which were absent complaints of or treatment for congestive heart failure. As the July 2012 rating decision is final, new and material evidence is therefore required to reopen the claim. In reviewing the evidence added to the claims folder since the July 2012 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim. Specifically, during the July 2021 Board hearing, the Veteran testified that he has received current treatment for congestive heart failure and further contends that his congestive heart failure manifested in service when he took medication for his service-connected back disability and he also contended that nightmares from his service-connected PTSD caused his current congestive heart failure. See the July 2012 Board hearing transcript, pgs. 3-5. As indicated above, the Veteran's previous claim was denied because there was no evidence of a current congestive heart failure disability and no evidence that such disability manifested in service. As the new evidence potentially indicates such, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for congestive heart failure is reopened. REASONS FOR REMAND The Veteran contends he has congestive heart failure that is related to service or is alternatively secondary to medication taken for his degenerative disc disease of the lumbar spine as well as his PTSD. The Board notes that the Veteran's service treatment records are absent complaints of or treatment for congestive heart failure or symptoms associated therewith. However, there is no medical opinion of record as to a relationship between the Veteran's congestive heart failure and medication taken for his degenerative disc of the lumbar spine and PTSD. The Board finds that a medical opinion for such should be obtained on remand. Additionally, during the July 2021 Board hearing, the Veteran testified that he was first diagnosed with congestive heart failure in 2005 at a VA facility and that he receives current treatment for his congestive heart failure. Id. at pgs. 5-6. The Board observes that these treatment records are not associated with the claims folder. Therefore, the Board finds that on remand, all outstanding treatment records should be obtained and associated with the claims folder. The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records, to include any VA treatment records dated from 2005 to the present. 2. Thereafter, obtain an opinion by an appropriately qualified examiner to determine the likely etiology of his congestive heart failure. The Veteran should be scheduled for an examination if determined necessary. The examiner should render an opinion as to the following: a. Identify whether the Veteran has congestive heart failure. b. If the Veteran has congestive heart failure, whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's congestive heart failure is caused by his service-connected degenerative disc disease of the lumbar spine and PTSD, to include medication taken for these disabilities. c. If the Veteran has congestive heart failure, whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's congestive heart failure is aggravated by his service-connected degenerative disc disease of the lumbar spine and PTSD, to include medication taken for these disabilities. (Continued on the next page) If the examiner finds that the congestive heart failure is aggravated by the service-connected degenerative disc disease of the lumbar spine and/or PTSD, then he/she should quantify the degree of aggravation, if possible. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.