Citation Nr: 21073668 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 20-16 982 DATE: December 9, 2021 ORDER The previously denied claim for entitlement to service connection for a heart disorder is reopened. REMANDED Entitlement to service connection for a heart disorder is remanded. FINDINGS OF FACT 1. In an April 2007 rating decision, the Agency of Original Jurisdiction (AOJ) previously considered and denied a claim for service connection for a heart disorder. 2. The Veteran was notified of the April 2007 rating decision and his appellate rights, but did not appeal the decision. Also, the VA did not receive new and material evidence within one year of the issuance of the decision. 3. Evidence received after the April 2007 rating decision relates to an unestablished fact necessary to substantiate his heart disorder claim. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for a heart disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20,1103. 2. The evidence submitted since the April 2007 rating decision is new and material, and the issue of entitlement to service connection for a heart disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 1966 to June 1968. He also served in the Ohio National Guard from January 1977 to November 1993 with active duty service from November 1990 to November 1991. This matter comes to the Board of Veterans' Appeals (Board) from a July 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). In March 2021, a Board hearing was conducted. The hearing transcript has been associated with the Veteran's file. Claim to Reopen The questions for the Board are whether the April 2007 rating decision denying entitlement to service connection for a heart disorder is final. If so, whether new and material evidence has been received since that decision that warrants reopening his entitlement claim. The Board finds that new and material evidence has been received that warrants reopening his heart disorder claim. To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). "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. Id. 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. Id. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Also, new and material evidence is not required as to each previous unproven element of a claim to reopen. Shade, 24 Vet. App. at 120. In April 2007, the AOJ issued a rating decision denying service connection for a heart disorder (left ventricular dysfunction). The AOJ decided the claim without obtaining a medical opinion that evaluated the Veteran's claims of exposure to environmental hazards while serving in SW Asia, to include the smoke from burning oil fields. A search of the record does not show he appealed the decision or submitted new and material evidence related to the claim within a year of being notified it was denied; so, the Board finds the April 2007 rating decision is final. 38 U.S.C. § 7105(c). Since the April 2007 rating decision, new and material evidence has been added to the record that relates to the Veteran's heart disorder claim. The new evidence includes medical records showing he developed heart problems following his service in SW Asia that became so severe he needed a heart transplant. Also, he has provided an explanation for why symptoms he observed in SW Asia are not found in his service medical records. See Transcript dated March 2021 at 12 (reporting some of the locations in SW Asia did not have medical facilities to report his cough fits). Without addressing the merits of the evidence at this time, the Board finds the new evidence goes to the issues of whether the environments he served in while deployed to SW Asia are causally related to the heart problems, he experienced following service. This evidence raises a reasonable possibility of substantiating the Veteran's service connection claim. In sum, the VA has obtained new and material evidence that goes to the issues of an in-service incurrence and a nexus. Accordingly, the Veteran's claim for heart disorder claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder is remanded. The Veteran contends his heart disorder is related to service in SW Asia. See August 2021 Appellate Brief at 1. In the alternative, he contends his heart disorder is secondary to his service-connected Post-Traumatic Stress Disorder (PTSD). See Transcript dated March 2021 at 11, 13. Although the Board regrets the delay, the Veteran's claim must be remanded for another medical opinion before it is able to decide on the merits. The examiner who prepared the July 2015 VA disability examination did not inform the Board if the Veteran's exposure to smoke from burning oil fields, diesel fuel, or use of medication to defend against biochemical weapons is causally connected to the development of his current heart disorders, to include left ventricular dysfunction, coronary artery disease, cardiomyopathy, atrial fibrillation. See VA DBQ at 6. So, the Board is unable to evaluate whether some in-service events are linked to his current heart disorder. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board recognizes the Veteran provided a medical opinion from R.N.P., MD, a private provider, but it is not sufficient to decide the claim. Although Dr. R.N.P. discussed the events the Veteran believes caused his heart disorder, like smoke from burning oil fields, he did not explain how those events are causally connected to the development of the Veteran's heart disorder. Instead, he noted certain in-service events and, without more, asserted they are "service connected." See Medical Opinion at 5. Without more, the Board cannot evaluate how Dr. R.N.P. came to his conclusion. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). Even when Dr. R.N.P.'s seven page opinion is read as a whole, the Board is unable to identify the kind of medical nexus evidence needed to decide the claim. First, Dr. R.N.P. does not provide a rationale that indicates to the Board he applied the required "more likely than not" standard required by VA regulations. Bloom v. West, 12 Vet. App. 185, 186 (1999). Also, by neglecting to provide the analysis that led him to his conclusion, the Board is placed in the position that it must fill the gap between the data he relied and his medical conclusionwhich the Board is not qualified to do. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). So, the opinion is insufficient to decide the claim. Due to the deficiencies in the medical opinions obtained thus far, the Board is unable to make a fully informed decision on the Veteran's claim. Barr, 21 Vet. App. at 311. Therefore, a remand is warranted. The Board notes another opinion will have the added benefit of evaluating whether the Veteran's heart disorder is secondary to his service-connected PTSD. See Transcript dated March 2021 at 11, 13. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his heart disorders, to include left ventricular dysfunction, coronary artery disease, cardiomyopathy, atrial fibrillation. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Does the Veteran have a heart disorder, to include left ventricular dysfunction, coronary artery disease, cardiomyopathy, atrial fibrillation that at least as likely as not (50 percent or greater probability) related to the Veteran's active service from July 1966 to June 1968? b. Does the Veteran have a heart disorder, to include left ventricular dysfunction, coronary artery disease, cardiomyopathy, atrial fibrillation that is at least as likely as not (50 percent or greater probability) related to service in SW Asia (November 1990 to November 1991), to include smoke from burning oil fields and diesel fuel used to burn human waste? Please state whether all the symptoms of the Veteran's heart disorder are attributable to a known clinical diagnosis. c. Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptoms illness (MUCMI) of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? If so, then please provide an opinion as to whether it is related to smoke from burning oil fields and/or diesel fuel used to burn human waste during service in SW Asia? d. Does the Veteran have a heart disorder, to include left ventricular dysfunction, coronary artery disease, cardiomyopathy, atrial fibrillation that is at least as likely as not (50 percent or greater probability) proximately due to service-connected PTSD? e. Regardless of the answer to (b),does the Veteran have a heart disorder, to include left ventricular dysfunction, coronary artery disease, cardiomyopathy, atrial fibrillation that is at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened beyond its natural progression, by PTSD? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Consider and discuss the Veteran's service in support of Operation Desert Storm/Shield (from November 1990 to November 1991). He reports the first few months of service in SW Asia were in environments surrounded by thick smoke from burning oil fields. Also, he did not always wear a gas mask. ii. Consider and discuss that on more than one occasion, the Veteran was part of a detail tasked with cleaning make-shift latrines. They would clean the latrines by burning human waste with diesel fuel. Members of the detail had to stay in close proximity to the burning waste, which tended to last all day iii. Consider and discuss the Veteran's frequent dosage of (unidentified) white pills while deployed to SW Asia. He had to take them on a regular schedule. Although he could not recall the name of the medication, he was told they were intended to defend against biochemical weapons. R.N.P., MD, a private provider, believes the Veteran was provided Pyridostigmine. See August 2021 Report by Dr. R.N.P. at 5. The Veteran did not observe any reactions when he took the pills. iv. Consider the Veteran served in a logistical support unit that transported supplies (by land) throughout Saudi Arabia, Kuwait, and Iraq. He reported some of the locations he supplied did not have established medical units. So, some cough fits between November 1990 to November 1991 were not documented in his medical records. He recalled one occasion he coughed so hard his chest hurt. v. Discuss the medical opinion by Dr. R.N.P, who concludes the Veteran's exposure to smoke from burning oil fields and diesel fuel is linked to the development of his heart disorder. See August 2021 Report by Dr. R.N.P. at 5. vi. Discuss whether there is a medical reason to accept or reject the proposition that symptomatology associated with his service-connected PTSD, particularly stress and anxiety, can impact the development or severity of his heart disorder? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.