Citation Nr: 21007027 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-67 534 DATE: February 8, 2021 ORDER The application to reopen the claim of entitlement to service connection for heart problems (now claimed as left ventricular hypertrophy/ischemia) is granted. Entitlement to service connection for heart disease with left ventricular hypertrophy is granted. Entitlement to service connection for hepatitis B is granted. FINDINGS OF FACT 1. In a December 2001 rating decision, the RO denied entitlement to service connection for a heart disability. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final December 2001 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a heart disability and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s heart disability had its onset in service. 4. The Veteran’s hepatitis B disability had its onset in service. CONCLUSIONS OF LAW 1. The December 2001 rating decision denying service connection for heart problems is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening the claim of service connection for heart disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for heart disease with left ventricular hypertrophy have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303 4. The criteria for hepatitis B have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to October 2001. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied entitlement to service connection for hepatitis B. The RO also reopened the claim of service connection for service connection for heart problems (claimed as left ventricular hypertrophy/ischemia), and then denied the claim on the merits. The Veteran disagreed with the RO’s determination, and a statement of the case (SOC) was issued in November 2017 addressing the matter. The Veteran timely appealed. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In February 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge (VLJ). Although a transcript of that hearing has not yet been made, one is not necessary in this case as the benefits sought are being granted in full. New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 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 with respect to that claim. New evidence means 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Heart As set forth above, in a December 2001 rating decision, the RO denied service connection for heart problems, finding no evidence a current heart condition occurred in or was caused by service. The Veteran was notified of his appellate rights in a December 2001 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s December 2001 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105 (c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for heart problems (now claimed as left ventricular hypertrophy/ischemia). As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in December 2001. That evidence includes a December 2015 private treatment record showing a diagnosis of left ventricular hypertrophy. The evidence also includes a June 2015 letter from army Dr. M.M., reporting that the Veteran has a diagnosis of heart disease. Dr. M.M. opined that the Veteran had heart disease while in the army. Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for heart disability and raises a reasonable possibility of substantiating the claim; reopening of the claim is therefore warranted. Turning to the merits of the case, the evidence of record demonstrates the Veteran has a current heart disability. Specifically, a December 2015 private treatment record showing a diagnosis of left ventricular hypertrophy. Additionally, a June 2015 physician letter reports a diagnosis of heart disease. Thus, the first requirement for service connection has been met. The evidence of record also supports that the in-service disease requirement has been met. The Veteran’s service treatment records (STRs) show complaints and treatment for heart palpations in July 1998. In August 2001, sinus bradycardia, minimal voltage criteria for left ventricular hypertrophy, may be normal variant was noted. ST & T wave abnormality, consider inferior ischemia, abnormal ECG was also noted. At his August 2001 separation examination, he reported heart trouble palpitation or pounding heart. The evidence contained in the STRs showing complaints, treatment, and diagnoses relating to the heart sufficient to meet the second element of the service connection claim. The next issue is whether the third element of a nexus has been met. In a June 2015 letter, army Dr. M.M. opined that the Veteran had heart disease while in the army. Dr. M.M. explained that he had personally reviewed the Veteran’s medical history, EKG and clinical notes, and it is clearly documented in several areas that he has signs and symptoms of heart disease. Dr. M.M. noted that the Veteran was found to have abnormal EKG and elevated cardiac enzymes and no cardiac workup was done. As Dr. M.M explained the reasons for his conclusion based on an accurate characterization of the evidence, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no conflicting medical opinion in the evidence of record. For the foregoing reasons, Dr. M.M.’s opinion indicating that the Veteran’s heart disability is related to service, provide a sufficient basis to grant service connection for heart disability. Thus, service connection for heart disease with left ventricular hypertrophy is warranted. 2. Hepatitis B In this case, the evidence of record demonstrate that the Veteran has a current hepatitis disability. Specifically, a June 2015 private treatment record shows a diagnosis of hepatitis B. Thus, the first requirement for service connection has been met. The evidence of record also supports that the in-service disease requirement has been met. The Veteran’s STRs include a March 1997 outpatient cumulative report showing hepatitis positive test results for hepatitis B surface and hepatitis B core. In November 1998, a clinician noted that upon review of the Veteran’s outpatient records he had increased liver enzymes in 1997 after a needle-stick and was noted to be hepatitis B core antibody and hepatitis B surface antibody positive. The Veteran did not recall whether he was told that he was positive for hepatitis, however, remembered his needle-stick incident. The Veteran recounted the needle stick incident during the Board hearing. A diagnosis of history of positive hep B serology, after needle-stick was noted. The evidence contained in the STRs showing a diagnosis related to hepatitis B is sufficient to meet the second element of the service connection claim. The next issue is whether the third element of a nexus has been met. In a June 2015 letter, army Dr. M.M. opined that the Veteran developed hepatitis B while in the army. Dr. M.M. explained that he had personally reviewed the Veteran’s medical history, lab results and clinical notes, and it is clearly documented in several areas about the needle stick incident and following abnormal lab results showing positive hepatitis B test. As Dr. M.M explained the reasons for his conclusion based on an accurate characterization of the evidence, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no conflicting medical opinion in the evidence of record. For the foregoing reasons, Dr. M.M.’s opinion indicating that the Veteran’s hepatitis B is related to service, provide a sufficient basis to grant service connection for hepatitis B. Thus, service connection for hepatitis B is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.