Citation Nr: 21073854 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 20-26 119 DATE: December 10, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for heart disorder, to include arrhythmia and ischemic heart disease is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for a bladder disorder, to include a yeast infection is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disorder, to include arrhythmia and ischemic heart disease is remanded. Entitlement to service connection for a left ankle strain is remanded. Entitlement to service connection for a sinus disorder is remanded. Entitlement to service connection for a bladder disorder, to include a yeast infection is remanded. FINDINGS OF FACT 1. In a final rating decision issued in April 2005, the Agency of Original Jurisdiction (AOJ) denied service connection for a bladder disorder and heart disorder. 2. Evidence added to the record since the final April 2005 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bladder disorder and heart disorder. 3. In a final rating decision issued in December 2008, the AOJ denied service connection for hypertension. 4. Evidence added to the record since the final December 2008 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The April 2005 decision that denied service connection for a bladder disorder and heart disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a bladder disorder and heart disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The April 2005 decision that denied service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military service from June 1976 to June 1979. This case comes to the Board of Veterans' Appeals (Board) from an October 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony at a Board hearing before the undersigned Veterans Law Judge in December 2021. This decision is being prepared under the Board's "one-touch" program, and a transcript of the Veteran's hearing is not yet available. Such a transcript will be added to the Veteran's file under the normal course of business. Application to Reopen Previously Denied Claim Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). From the date of notification of an AOJ decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a Statement of the Case, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302 (b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence 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). Thus, under 38 C.F.R. § 3.156 (b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156 (b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156 (a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156 (c)(1)(i). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim for service connection for heart disorder, to include arrhythmia and ischemic heart disease. 2. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 3. Whether new and material evidence has been received to reopen a claim for service connection for a urinary infection, to include a yeast infection is reopened. In this case, the AOJ originally denied service connection for a heart disorder and bladder disorder in an April 2005 rating decision. At such time, the AOJ considered the Veteran's service treatment records (STRs) and private treatment records. The AOJ noted that the Veteran had a yeast infection in service, but denied service connection for a yeast infection because there was no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. The AOJ further noted that the Veteran's STRs noted that she had sinus bradycardia during service and reports of chest pain; however, service connection for arrhythmia is denied because the medical evidence of record failed to show that this disability had been clinically diagnosed. With regards to the Veteran's hypertension, the AOJ originally denied service connection for hypertension in a December 2008 rating decision. At such time, the AOJ considered the Veteran's STRs and private treatment records. The AOJ denied service connection for hypertension since the condition was neither occurred in nor was caused by service. Thereafter, the Veteran was advised of the decisions and her appellate rights. However, she did not enter a notice of disagreement with the determinations. Further, no additional evidence referable to her disabilities was received within one year of the issuance of the decisions. Therefore, the April 2005 and December 2008 rating decisions are final. The evidence received since the final rating decisions includes VA treatment records, private treatment records, and testimony from the December 2021 Board hearing. This evidence is "new" as it was not previously submitted to agency decision makers, and the evidence is material as it relates to unestablished facts necessary to substantiate the claims. Specifically, the Veteran's private treatment records show that she has a diagnosis of sinus bradycardia and hypertension. The Veteran stated that she has been on hypertension medication since service. The Veteran also contends that she had yeast infections since her military service. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for a heart disorder, hypertension, and a bladder disorder, to include yeast infections are reopened. REASONS FOR REMAND 4. Entitlement to service connection for a heart disorder, to include arrhythmia and ischemic heart disease. The Veteran contends that her heart disorder is due to her military service. In this regard, at the December 2021 Board hearing, she reported that she started having palpitations during her running exercises in service and she experienced lightheadedness and chest pain. Her STRs show that she reported chest pain on multiple occasions during service and she had an abnormal ECG in March 1977, but it noted sinus bradycardia. The Board notes that the Veteran underwent a VA examination in April 2020. The examiner concluded that the Veteran's complaints were subjective only and the objective examination was normal. The examiner further stated that there was no objective evidence of a chronic condition for ischemic heart disease or heart arrhythmia. However, the examiner cited a 2002 chest X-ray and EKGs from 2002 and 2013, and the Veteran stated that no tests were conducted. Moreover, it does not appear that the examiner reviewed the Veteran's STRs. As a result, the Board is without adequate information to decide the issue of entitlement to service connection for a heart disorder. A new VA examination is needed to determine the nature and etiology of the Veteran's heart disorder. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for a bladder disorder, to include a yeast infection. 7. Entitlement to service connection for a left ankle strain. 8. Entitlement to service connection for a sinus disorder. The Veteran contends that her hypertension, sinusitis, left ankle disorder, and bladder disorder are due to her military service. In this regard, at the December 2021 Board hearing, the Veteran reported that she was diagnosed with hypertension within a year after service and she has been on medication since that time. The Veteran's March 1977 STRs reveal a blood pressure reading of 118/88. In July 1977, she had readings of 162/90,150/78, 120/70, 100/68, and 98/68. Moreover, February 1999 and 2002 private treatment records indicate that the Veteran had hypertension and she was taking blood pressure medications. A March 2013 VA treatment record and 2016 private treatment record show a diagnosis of hypertension. With regards to the Veteran's bladder disorder, she contends that she initially had infections in service, received treatment, and was placed on quarters. She further stated that she has had infections since that time. A September 1976 STR notes that the Veteran had a yeast infection, and a June 1977 STR notes that the Veteran reported that her urinary frequency was severe. With regards to the Veteran's left ankle disorder, she reported that she fell down some stairs while in service and was placed on limited profile. She further stated that she has had pain, swelling, and discomfort since service. A July 1977 STR notes that the Veteran fell down some steps, but it shows that she hurt her right ankle. An April 1979 STR notes that she reported that she had painful or swollen joints. With regards to the Veteran's sinus disorder, she reported that he has hay fever and sinusitis that started in service and has continued since such time. A June 1977 STR reveals that she reported sinus problems. Additionally, in April 1979, she reported that she had hay fever pain or pressure. Based on the above, a remand is necessary to obtain VA opinions to determine the nature and etiology of the Veteran's hypertension, bladder disorder, left ankle disorder, and sinusitis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. The Veteran should be given an opportunity to identify any outstanding private treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding relevant records from all indicated sources should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. 2. Schedule the Veteran for any appropriate VA examination in order to determine the current nature and etiology of her hypertension, heart, bladder, left ankle, and sinusitis disorders. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated evaluations, studies, and tests should be conducted. Following a review of the record, the examiner should address the following inquiries: (A) The examiner should note, and detail all reported symptoms pertaining to her hypertension, heart, bladder (to include yeast infection), left ankle, and sinusitis disorders. (B) For all disabilities and/or persistent or recurrent symptoms of disability identified, is it at least as likely as not (a 50 percent or greater probability) that such had its onset in or is otherwise related to the Veteran's military service. In rendering an opinion, the examiner must consider that the Veteran's March 1977 STRs reveal a blood pressure reading of 118/88. In July 1977, she had readings of 162/90,150/78, 120/70, 100/68, and 98/68. Moreover, February 1999 and 2002 private treatment records indicate that the Veteran had hypertension and she was taking blood pressure medications. The examiner should also consider the Veteran's reports of chest pain during service and cardiac abnormalities that noted in March 1977, but it noted sinus bradycardia. Additionally, a September 1976 STR notes that the Veteran had a yeast infection, and a June 1977 STR notes that the Veteran reported that her urinary frequency was severe. A July 1977 STR notes that the Veteran fell down some steps, but it shows that she hurt her right ankle. An April 1979 STR notes that she reported that she had painful or swollen joints. A June 1977 STR reveals that she reported sinus problems. Additionally, in April 1979, she reported that she had hay fever pain or pressure. The examiner is further advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any treatment or diagnosis of such disorders. (Continued on the next page) A rationale for all opinions rendered must be provided. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.