Citation Nr: 21077015 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 12-13 139 DATE: December 28, 2021 ORDER New and material evidence has been received to reopen a previously denied claim for service connection for a heart condition. REMANDED Entitlement to service connection for a heart condition, claimed as irregular heartbeat, is remanded. Entitlement to service connection for a disability of the neck is remanded. Entitlement to service connection for a disability manifested by head pain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is remanded. FINDINGS OF FACT 1. In November 2007, the Agency of Original Jurisdiction (AOJ) denied the Veteran's request to reopen a previously denied claim for service connection for a heart condition; the Veteran timely initiated his appeal and the AOJ issued a Statement of the Case; but the Veteran failed to file a timely VA Form 9. 2. Since November 2007, the Veteran has submitted evidence, which was unavailable to the AOJ at the time of that decision, tending to indicate that he has a current disability affecting his heart. CONCLUSIONS OF LAW 1. The November 2007 decision denying a request to reopen the claim for service connection for an irregular heartbeat is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.52, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim for service connection for a heart condition has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1995. This case comes to the Board from decisions of the Agency of Original Jurisdiction (AOJ) issued in August 2009 and November 2010. In October 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded this appeal for further development in December 2017 and, most recently, in January 2021. Reopening Service Connection for a Heart Condition In October 2001, the AOJ received the Veteran's initial application seeking service-connected compensation for a heart condition, claimed as irregular heartbeat. The AOJ denied the claim in June 2002 because, according to the decision, the record, "fails to show a disability for which compensation may be established. While irregular heart beats may be a symptom of heart disease, sometimes it is not." The Veteran initiated an appeal of the June 2002 decision and the AOJ issued a Statement of the Case (SOC) in March 2004, which continued to deny the claim. The Veteran did not file a substantive appeal (VA Form 9) within 60 days after he was notified of the March 2004 SOC. In January 2005, the AOJ received a Form 9 from the Veteran, which was treated as a request to reopen his previously denied claim. In May 2005, the AOJ issued another decision, rejecting the request to reopen the previously denied claim. The June 2002 decision, the AOJ explained, "denied service connection for irregular heart beat because it is not an actual disability, and the appeal period for that decision has expired and the decision is now final. In order for us to reopen your claim, we need new and material evidence." In September 2006, the Veteran submitted another request to reopen the heart claim. The AOJ denied this request in November 2007 and mailed a copy of its decision, together with an explanatory letter, to the address the Veteran had identified as his residence in his most recent correspondence. When denying the heart claim, the November 2007 decision mentioned only a March 2007 VA examination report, which concerned the Veteran's feet. The AOJ concluded that this report did not include evidence which was material to the heart claim. Once again, the Veteran initiated an appeal of the decision by filing a timely notice of disagreement (NOD). The AOJ issued a SOC, which it mailed to the Veteran's most recent address on December 10, 2007. It was not until March 9, 2008 that the AOJ received the Veteran's substantive appeal (VA Form 9). Thus, the November 2007 decision became final when the Veteran failed to perfect his appeal within 60 days after receiving a copy of the December 2007 SOC. See 38 C.F.R. §§ 19.52, 20.1103. VA may reopen and review a previously denied claim if new and material evidence is received or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The phrase "raises a reasonable possibility of establishing the claim" in 38 C.F.R. § 3.156(a), is viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The June 2002 and January 2005 decisions indicated, respectively, that the Veteran's heart condition was not "a disability for which compensation may be established" and "not an actual disability . . ." This conclusion reflects a finding that the cardiac abnormalities noted in the service treatment records, including atrial tachycardia in June 1994 and history of sinus bradycardia in July 1995, did not satisfy the current disability requirement of the claim. The Veteran participated in a holter monitor study in June 1994 due to history of palpitations, but the physician who interpreted the results of this study wrote that he, "reassured [the] patient that he does not have serious heart disease . . ." The 2002 and 2005 AOJ decisions denied service connection for a heart condition without first arranging for a VA medical examination focused on the heart. Although the November 2007 decision did not expressly make the same finding i.e. that the evidence failed to satisfy the current disability requirement the decision's second page includes a list of items of evidence the AOJ considered. The March 2007 VA examination report is the only new piece of medical information on the list. As noted, that examination concerned the Veteran's feet. Under these circumstances, it is reasonable to conclude that, at the time of the November 2007 decision, the record did not include evidence which satisfied the current disability requirement of the heart claim. Since November 2007, the AOJ received medical records documenting treatment for unspecified cardiac dysrhythmia and atrial fibrillation. Although the relationship of these findings to the Veteran's in-service heart palpitations remains unclear, the rating criteria for disabilities of the cardiovascular system specifically authorize compensation for atrial fibrillation. See 38 C.F.R. § 4.104, Diagnostic Code 7010 ("Supraventricular arrhythmias"). For this reason, the currently available evidence is inconsistent with the AOJ's 2002 statement that the Veteran had no "disability for which compensation may be established . . ." The medical evidence diagnosing the Veteran with atrial fibrillation is new because it was not available to the AOJ in November 2007 and is material because it relates to an unestablished fact necessary to substantiate the claim. Thus, the Board will reopen the previously denied claim for service connection for a heart condition, claimed as irregular heartbeat. To this extent, the benefit sought on appeal is granted. REASONS FOR REMAND Service Connection for a Heart Condition As noted, it is unclear whether the Veteran's current heart condition had its initial onset in service or is otherwise related to any in-service disease, injury, or event, including the cardiac abnormalities noted in his service treatment records. But the available information clearly satisfies the standard for requiring a medical examination and opinion to help decide this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Under these circumstances, the Board will remand the reopened heart claim so that an examination can be arranged. Before reopening the claim, the Board instructed the AOJ to request copies of outstanding medical records from a cardiologist in private practice. The AOJ mailed an appropriate letter to the Veteran explaining the nature of this request and, in February 2021, received his written authorization to obtain the records. The AOJ did not obtain the missing records but prepared a memorandum describing its efforts to do so in April 2021. These efforts arguably comply with 38 C.F.R. § 3.159(c) because it appears that multiple copies of the release were sent successfully to the current custodian of the records and there was at least one follow-up request. The AOJ wrote to the Veteran explaining the results and noting that it was possible that the COVID-19 pandemic might have prevented the cardiologist's office from responding. Because of this possibility and because a new remand is needed to arrange the necessary examination the AOJ should make another attempt to obtain the missing records from the Veteran's private cardiologist. If the AOJ is unable to obtain the records before the expiration of the Veteran's authorization (February 22, 2022), the AOJ should ask him to complete a new authorization. Neck and Head Claims The Veteran attributes disabilities of the neck and head to injuries he sustained during an automobile accident during his active duty service. This accident, he explained, occurred in 1990, when he was "hit from the rear and knocked into the vehicle in front of me, injuring my right foot, my neck and shoulder are and my lower back." He testified that he injured his head and experienced a period of post-injury memory loss. As the Board explained in its January 2021 remand, the accident is not mentioned in his service treatment records. But the Veteran is competent to describe his injuries and his subsequent head and neck pain. The Board instructed the AOJ to arrange an examination of the Veteran's neck and another examination to assess the extent of current residuals of traumatic brain injury (TBI), if any. Both examinations took place in June 2021. The neck (cervical spine) examination report indicated a diagnosis of degenerative arthritis. According to the TBI report, there were no residuals of an in-service head injury. In the opinion of the physician who examined the Veteran's neck, it was less likely than not that the current cervical spine disability was related to service. The examining physician described the Veteran's neck arthritis as a "'degenerative process' involving the discs and vertebral bodies, consistent with natural age . . . and [body mass index]: 35.3 (Obesity:>30)." The opinion cited an article which concluded that, statistically, age and obesity were "predominant predictors" of degenerative disc disease in the general population. In response to the language in the remand instructions requesting a discussion of the Veteran's statements about the claimed 1990 automobile accident, the examiner wrote, "No medical opinion can be rendered as no cervical spine condition was diagnosed in service." The examiner added, "While the Veteran is credible and competent to report cervical spine condition, he is not qualified to make medical diagnosis or discuss medical nexus." It seems that the physician who prepared the neck questionnaire also prepared most of the TBI questionnaire and medical opinion. The "remarks" section of the questionnaire describes statements from the Veteran about problems with short-term memory and diminished concentration. The examiner wrote, "There is insufficient evidence to warrant or confirm an active service TBI. Though [the Veteran] reports [motor vehicle accident] in 1990, [service treatment records] [are] silent for such incident." Consistent with the Board's instructions, a psychiatrist participated in the preparation of the TBI report and endorsed the conclusions of the examining physician. To the rationale mentioned above, the psychiatrist added, "There is insufficient evidence in the [service treatment records] to warrant or confirm a service related TBI and/or residuals of such." The opinions about the neck and residuals of TBI are inadequate to decide the respective claims because both are in tension with Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), in which the Court explained that an opinion by a VA examiner cannot rely on the absence of in-service medical records, standing alone, to justify an unfavorable conclusion. In addition to the absence of service treatment records, the neck opinion mentions statistics about factors which are predictive of neck arthritis in the general population. But is difficult to know how significant these statistics are to this particular Veteran's case without further information. The examiner made a statement which seems to acknowledge the Veteran's statement about the 1990 accident ("the Veteran is credible and competent to report cervical spine condition. . ."). But the next phrase ("he is not qualified to make medical diagnosis or discuss medical nexus") is confusing. If something about the Veteran's version of events is inconsistent with the current examination findings or with the known progress of his particular diagnosis over time, then perhaps the examiner's conclusion is correct. The examiner's rationale, however, is inadequate because, other than the absence of treatment records about the 1990 accident, the opinion identifies no reason for rejecting the Veteran's version of events. The rationale for the TBI opinion suffers from a similar problem. As noted, the examination questionnaire concluded that there are no current residuals of TBI. If this is true, the examiner's conclusion is likely correct. But the examiner acknowledged complaints of short-term memory loss. If the examiner rejected the possibility that memory loss is a residual of TBI simply because the service treatment records do not mention the 1990 accident, then the examiner's conclusion would not be consistent with the law. Because it is unclear whether the examiner made this error, the rationale for the June 2021 TBI opinion is also inadequate. Although the Board regrets the need for further delay, the Board must remand the neck and TBI claims to obtain adequate medical opinions. TDIU The claim for a TDIU rating is inextricably intertwined with the heart, neck, and TBI claims because, if resolved in his favor, one or more of those claims could potentially affect whether the Veteran is eligible to receive a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the TDIU appeal pending the adjudication of the intertwined issues. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran's VA medical treatment since June 2021. 2. The AOJ should make another attempt to obtain copies of all post-2009 records of the Veteran's medical treatment from Dr. Mustafa Awan, a specialist in cardiology currently or previously associated with the University of South Alabama. The Veteran signed an authorization for the AOJ to obtain these records in February 2021. That authorization expires on February 22, 2022. If copies of the records are not requested before this date, the AOJ should ask the Veteran for a new authorization and, if he provides one, the AOJ should request the records again from Dr. Awan. 3. Schedule a VA examination to determine nature and etiology of the claimed neck disability. The VBMS and Virtual VA electronic claims, including any new information obtained as a result of these instructions, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. After completing the examination and reviewing the relevant records, the examiner should respond to this question: Is it at least as likely as not (50 percent probability or greater) that any current disability of the neck, including cervicalgia and/or arthritis, had its initial onset in service or is otherwise related to any in-service disease, injury, or event, including the 1990 automobile accident the Veteran described in his hearing testimony? The examiner should provide a complete rationale for his or her opinion. The examiner is advised that the Veteran is competent to provide information about events and symptoms he personally experienced, including the claimed 1990 in-service automobile accident. The examiner is further advised that the absence of contemporaneous in-service records of treatment for a neck injury, standing alone, is not a rationale sufficient to justify an unfavorable opinion. IF THE EXAMINER DOES NOT BELIEVE THE 1990 ACCIDENT OCCURRED OR IF HE OR SHE BELIEVES THAT THE ACCIDENT COULD NOT HAVE CAUSED AND/OR COULD NOT HAVE AGGRAVATED THE CURRENT CERVICAL SPINE DISABILITY, THE EXAMINER SHOULD THOROUGHLY EXPLAIN THE REASONS FOR THAT CONCLUSION. FOR EXAMPLE, IF THE VETERAN'S VERSION OF EVENTS IS INCONSISTENT WITH EXAMINATION FINDINGS OR WITH THE OTHER KNOWN FACTS ABOUT HIS CERVICAL SPINE DIAGNOSIS, THEN THE EXAMINER SHOULD DESCRIBE WHY THAT IS SO. IF THE CURRENT DISABILITY OF THE CERVICAL SPINE IS CONSISTENT WITH THE POSSIBILITY THAT IT WAS CAUSED OR AGGRAVATED BY THE 1990 ACCIDENT, THE EXAMINER SHOULD SAY SO. 4. Schedule the Veteran for a TBI examination to be conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon. All pertinent symptomatology, findings and clinical manifestations must be reported in detail. All appropriate studies, including additional neuropsychological testing, if indicated, should be performed. Following review of the claims file, the examiner is requested to respond to the following questions: a) Is it at least as likely as not (a 50 percent probability or more) that the Veteran has any symptoms and/or residuals of in-service TBI, including headaches or short-term memory loss? Any and all residuals and/or impairment should be delineated. b) Are any claimed residuals of TBI attributable to other disabilities, or are more likely unrelated to an incident of service and are of post service onset? c) A complete rationale must be provided for all opinions. The examiner should discuss prior medical evidence in detail and reconcile any contradictory findings. If the examiner's opinion is that the Veteran did not experience a TBI event in service or that no current residuals of in-service TBI exist, the examiner must explain how he or she has reconciled these conclusions with the Veteran's hearing testimony, in which he said that he injured his head in an automobile accident in 1990 and described what appears to be a post-injury loss of memory ("Because when I was hit that morning, when the security police came, I was sitting there trying to find my driver's license and had no idea I had already given him my driver's license. I told him, I can't find my driver's license. He said, sarge, I got your driver's license"). THE EXAMINER IS ADVISED THAT THE ABSENCE OF CONTEMPORANEOUS MEDICAL RECORDS DOCUMENTING THE ACCIDENT OR POST-ACCIDENT INJURIES IS NOT, IN ITSELF, SUFFICIENT TO JUSTIFY AN UNFAVORABLE OPINION. IF THE EXAMINER BELIEVES THAT THE VETERAN'S VERSION OF EVENTS IS INCONSISTENT WITH THE EXAMINATION FINDINGS, INCLUDING ANY RELEVANT TEST RESULTS, THEN HE OR SHE SHOULD EXPLAIN THE REASONS FOR THAT CONCLUSION. 5. Schedule the Veteran for an examination with a qualified professional for the purpose of determining the nature and etiology of any current cardiovascular disability, including atrial fibrillation. Send the claims file, including any new records obtained as a result of the development mentioned above, to the examiner. The claims file should be reviewed by the examiner. Any indicated testing should be performed. The examiner is asked to address the following question: Is it at least as likely as not (50 percent or greater probability) that any current cardiovascular disability, including atrial fibrillation, had its onset in or is in any way related to any disease, injury or event during active duty service, including the abnormal cardiac findings mentioned in the service treatment records? A complete rationale should be provided explaining the requested opinion. The examiner's report should discuss the abnormal cardiac findings mentioned in the service treatment records, including the notes mentioning tachycardia, possible rhythm disturbance, palpitations, and sinus bradycardia. 6. The AOJ must ensure that the examination reports and opinions requested above comply with the directives of this remand. If any report or opinion is deficient, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.