Citation Nr: 21075933 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-20 028 DATE: December 21, 2021 ORDER The petition to reopen the previously-denied claim for service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected coronary artery disease (CAD) prior to July 5, 2019, and in excess of 30 percent thereafter, is remanded. FINDINGS OF FACT 1. In a November 2010 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claim for service connection for PTSD; he did not appeal that decision. 2. Additional evidence associated with the claims file since the November 2010 rating decision is cumulative or redundant of the evidence of record at the time of the prior denial, and it does not relate to unestablished facts necessary to substantiate the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The November 2010 rating decision that denied the Veteran's claim for service connection for PTSD is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 3.104, 20.1103 (2020). 2. As evidence received since the November 2010 rating decision is not new and material, the criteria for reopening the claim for service connection for PTSD are not met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1965 to April 1969. In addition, he had Reserve service. His service medals and decorations include the Presidential Unit Citation. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in October 2017 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ), confirming and continuing the previous denial of service connection for PTSD; and, granting service connection for CAD with an initial 10 percent rating assigned effective January 30, 2017. In March 2020, the RO increased the disability rating assigned for the Veteran's CAD to 30 percent effective July 5, 2019. Petition to Reopen Generally, a claim which has been denied in an unappealed AOJ or Board 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 is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. 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 evidence is new and material, 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). Regardless of any determination by the AOJ, the Board must address the question of whether new and material evidence to reopen the claims has been received because the matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claims can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim for service connection for PTSD was originally denied in a November 2010 rating decision because the evidenced of record failed to demonstrate a current diagnosis of PTSD. At the time of the November 2010 rating decision, the evidence of record included his service treatment records and his VA treatment records. The Veteran did not initiate an appeal. As such, the November 2010 rating decision is final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, such regulation is inapplicable here, as there is no indication that new and material evidence was received prior to the expiration of the appeal period associated with the November 2010 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable, as the Veteran's service treatment records were considered in the November 2010 rating decision. Evidence added to the record since the November 2010 rating decision includes his lay statements, VA treatment records, and a June 2017. However, the Board finds that such evidence is cumulative and redundant of the evidence of record at the time of the prior decision. As noted above, the November 2010 rating decision concluded that a current diagnosis of PTSD had not been demonstrated by the evidence of record. The newly received evidence likewise does not indicate the presence of a current psychiatric disability, to include PTSD. Significantly, the June 2017 VA examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD or any other psychiatric diagnosis. Furthermore, the Veteran's VA treatment are silent for any psychiatric diagnoses. In fact, recent VA PTSD and depression screenings have been negative. See, e.g., July 2019 VA Primary Care Nursing Note; June 2020 VA PACT Note. Therefore, the Board finds that the newly received evidence is cumulative and redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the claim. Consequently, new and material evidence has not been received to reopen his claim for service connection for PTSD, and the petition to reopen is denied. REASONS FOR REMAND Regarding the issue concerning higher staged ratings for service-connected CAD, the Veteran was afforded a VA examination in June 2017. The examiner noted a diagnosis of CAD requiring continuous medication. Interview-based metabolic equivalents (METs) indicated a workload of 5-7 METs consistent with activities such as walking up one flight of steps, golfing, and heavy yard work. Interview-based METs further indicated a workload of 7-10 METs consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examiner reported that comorbidities limiting the Veteran's ability to perform physical work included obesity and formerly smoking. Left ventricular dysfunction with an ejection fraction (LVEF) was calculated at 60 percent to 65 percent. The examiner stated that LVEF was a more accurate indicator of the Veteran's cardiac functioning. The examiner noted there was no evidence of cardiac hypertrophy on June 2017 echocardiogram. However, a subsequently obtained August 2019 echocardiogram indicated cardiac hypertrophy. A July 2017 private DBQ, completed by Dr. K., was submitted by the Veteran in support of his claim. Dr. K. noted diagnoses of arteriosclerotic heart disease, CAD, hypertensive heart disease, and mild aortic stenosis. Addressing the Veteran's physical examination, Dr. K. wrote "see last office visit November 2016." Dr. K. did not complete the section regarding diagnostic testing and did not respond as to whether the Veteran had cardiac hypertrophy, or not. While the AOJ had previously attempted to assist the Veteran in obtaining his treatment records from Greensburg Hospital, see May 2017 correspondence, no efforts by the AOJ were made to obtain the records referenced to by Dr. K. in the July 2017 private DBQ, which may prove relevant to the claim on appeal. Moreover, the record indicates that the Veteran had another echocardiogram performed in August 2020, upon order by Dr. K. of Excela Health Cardiology, and that pulmonary function testing was completed in July 2020. While the clinicians noted that those records would be requested after the echocardiogram and pulmonary function testing were reviewed, the findings from these procedures are not associated with the claims file. Such indicates that there is outstanding medical evidence, to include private and VA treatment records, that is relevant to this claim and must be obtained in order for a fully informed decision to be rendered. Indeed, the Diagnostic Code under which the Veteran's CAD is evaluated contemplates findings that are included in echocardiograms. See 38 C.F.R. § 4.104, Diagnostic Code 7005. Therefore, a remand is required to obtain all outstanding, relevant evidence. Lastly, in a July 2021 brief, the Veteran's representative indicated the record demonstrates the Veteran's condition has worsened since the June 2017 VA examination. Therefore, the Veteran should be afforded a new VA examination on remand, to include consideration of any relevant records that the Board is requesting herein. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private and VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, including all outstanding VA treatment records from August 2020 to the present, to include the reports of the August 2020 echocardiogram and July 2020 pulmonary function testing. 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 his representative, if any, and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b) (2) and 38 C.F.R. § 3.159 (e). 2. Following the receipt of outstanding records, provide the Veteran's claims file to a qualified clinician to ascertain the current and past severity of his service-connected CAD. The record, including a complete copy of this remand, should be made available for review. The examiner should, after a thorough review of the record, provide a medical opinion as detailed below. (a) The examiner should first ascertain the current severity of the Veteran's service-connected CAD. (i) Specifically, the examiner should perform a METs exercise test on the Veteran, unless the examiner finds that a METs exercise test cannot be performed for a medical reason (s). (ii) In the case where the examiner finds that a METs exercise test cannot be performed for a medical reason(s), the examiner must specifically provide the reason as to why it was not possible or not medically recommended for the Veteran to undergo the METs exercise test. The examiner should then estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or heavy yardwork) that results in dyspnea, fatigue, angina, dizziness, or syncope. (b) Second, the examiner should also provide retrospective findings to the extent feasible. For the appeal period prior to July 5, 2019, based upon the evidence of record, the examiner should estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or heavy yardwork) that results in dyspnea, fatigue, angina, dizziness, or syncope. If the examiner cannot provide some or all of such opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. 3. Thereafter, readjudicate the issue on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, Associate 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.