Citation Nr: 21008955 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 07-32 319 DATE: February 18, 2021 ORDER New and material evidence having been received, reopening of service connection for sinus bradycardia is granted. REMANDED Entitlement to service connection for sinus bradycardia is remanded. Entitlement to service connection for a respiratory disorder, to include asthma and allergic rhinitis, is remanded. FINDINGS OF FACT 1. A February 1990 rating decision denied service connection for sinus bradycardia, finding that the diagnosed sinus bradycardia was a clinical finding and not a disability for VA rating purposes. The Veteran did not file a timely notice of disagreement (NOD) following the February 1990 rating decision, and new and material evidence was not received during the one year appeal period. 2. New evidence received since the February 1990 rating decision reflects that the diagnosed sinus bradycardia is symptomatic to a level indicative of a compensable disability for VA rating purposes. CONCLUSIONS OF LAW 1. The February 1990 rating decision denying service connection for sinus bradycardia became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018) 2. Evidence received since the February 1990 rating decision is new and material to reopen service connection for sinus bradycardia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1985 to September 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in January 2010. A transcript of that hearing has been associated with the claims file. The instant matter was previously before the Board in September 2010, December 2015, and June 2017. At those times, the issue of whether new and material evidence had been received to reopen a claim for entitlement to service connection for sinus bradycardia was remanded pending initial adjudication by the Agency of Original Jurisdiction (AOJ) of the issue of whether there was clear and unmistakable error (CUE) in a February 1990 RO rating decision that denied service connection for sinus bradycardia. A rating decision finding no CUE in the February 1990 RO rating decision was finally issued by the AOJ in September 2020, and the new and material evidence issue is now ripe for adjudication. Nonetheless, in the instant decision the Board remands the issue of service connection for a respiratory disorder and reopens and remands the issue of service connection for sinus bradycardia. As such, the Board need not further address remand compliance at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that the Veteran’s appeal had originally included additional claims for service connection. However, following the Board’s September 2010 remand, the AOJ granted service connection for posttraumatic stress disorder, tinnitus, and bilateral knee disabilities in April 2012 and October 2013 rating decisions. Then, following the December 2015 Board remand, the AOJ granted service connection for bilateral plantar fasciitis with pes planus and lumbosacral strain with degenerative disc disease in a June 2016 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, those matters are no longer in appellate status. Id. at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). As the instant decision remands the issue of service connection for a respiratory disorder, and reopens and remands the issue of service connection for sinus bradycardia, no further discussion of VA’s duties to notify and assist is necessary. Reopening Service Connection for Sinus Bradycardia Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. 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 received 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. A February 1990 rating decision denied service connection for sinus bradycardia, finding that the diagnosed sinus bradycardia was a clinical finding and not a disability for VA rating purposes. The Veteran did not file a timely NOD following the February 1990 rating decision, and new and material evidence was not received during the one year appeal period. As such, the February 1990 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the issuance of the February 1990 rating decision, the Veteran underwent a VA general medical examination in March 2011. At the conclusion of the examination, the VA examiner diagnosed the Veteran with the heart disorder of sinus bradycardia. No other heart disorder was diagnosed at that time. Per the examination report, the diagnosis was based upon electrocardiogram (EKG) findings and the Veteran’s subjective history. Further, upon examination the VA examiner found the sinus bradycardia to be symptomatic, resulting in a metabolic equivalent (MET) level of greater than 5 METs but not greater than 7 METs, with symptoms of dyspnea. The evidence found within the March 2011 VA general medical examination report supports that the diagnosed sinus bradycardia is now symptomatic to a level indicative of a compensable disability for VA rating purposes. Therefore, the Board finds this evidence new and material to reopen service connection for sinus bradycardia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Service Connection for Sinus Bradycardia VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). As discussed above, the Veteran received a VA general medical examination in March 2011. At that time, the VA examiner found it less likely than not that currently diagnosed symptomatic sinus bradycardia was related to the Veteran’s advanced in-service heart palpations or was otherwise related to service. However, review of the service treatment records reflect that, in October 1987, the Veteran had a pulse of 56 beats per minute, which may be indicative of sinus bradycardia. See Merriam Webster Online Medical Dictionary, https://www.merriam webster.com/medical/sinus%20bradycardia (last visited December 23, 2020) (sinus bradycardia is sinus rhythm at a rate lower than 60 beats per minute). Further, service treatment records reflect that many pulse readings taken throughout service were in the 60 to 70 beats per minute range. In fact, per the August 1989 service separation examination, at service separation the Veteran’s sitting pulse was exactly 60 beats per minute. As the VA examiner in March 2011 did not address whether currently diagnosed symptomatic sinus bradycardia was related to these in-service pulse readings, remand for an addendum opinion is warranted. 2. Service Connection for a Respiratory Disorder In a June 2017 Remand, the Board remanded the issue of service connection for a respiratory disorder to obtain an addendum opinion. The VA examiner was to identify all currently diagnosed respiratory disorders, and opine as to whether each such diagnosed respiratory disorder was related to service. In March 2018 and January 2019, VA received adequate addendum opinions concerning whether the currently diagnosed respiratory disorder of asthma was related to service. However, review of the VA treatment records reflect that during the course of this appeal the Veteran was diagnosed with allergic rhinitis at a VA medical center (VAMC) on or about 2012 to 2013. As allergic rhinitis is a respiratory disorder, the VA examiners in March 2018 and January 2019 should have addressed the question of whether currently diagnosed allergic rhinitis was related to service. Significantly, the service treatment records reflect that, while the Veteran denied having hay fever (another term for allergic rhinitis) at service entrance in October 1985, per an August 1989 report of medical history, the Veteran conveyed being unsure whether he had hay fever at service separation. For these reasons, the Board finds remand to obtain an addendum medical opinion on the question of whether the currently diagnosed respiratory disorder of allergic rhinitis is related to service to be warranted. The aforementioned matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his sinus bradycardia and respiratory disorders. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. Any outstanding, relevant VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran’s full claims file should be returned to March 2011 VA examiner for clarification of the prior opinion concerning service connection for sinus bradycardia. If the aforementioned VA examiner is not available, the file should be provided to a similarly qualified examiner; an examination may be ordered if deemed necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post service medical records, and assertions. The examiner should opine as to whether it is at least as likely as not that the in-service October 1987 pulse reading of 56 beats per minute, and/or the multiple in service pulse readings of 60 to 70 beats per minute, including at the time of the August 1989 service separation examination, were an early manifestation of the currently diagnosed symptomatic sinus bradycardia. The examiner should specifically address (a) the October 1987 service treatment record noting a pulse of 56 beats per minute, (b) the multiple service treatment records showing a pulse of 60 to 70 beats per minute, and (c) the December 1989 VA examination report diagnosing sinus bradycardia. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner is asked to provide a clear medical rationale for all opinions with discussion of the facts and medical principles involved. 3. Further, the Veteran’s full claims file should be returned to either the March 2018 VA examiner and/or the January 2019 VA examiner for clarification of the prior opinion(s) concerning service connection for a respiratory disorder. If neither of the aforementioned VA examiners are available, the file should be provided to a similarly qualified examiner; an examination may be ordered if deemed necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post service medical records, and assertions. The examiner should opine as to whether it is at least as likely as not that currently diagnosed allergic rhinitis is causally or etiologically related to the Veteran’s military service, to include any injury or symptomatology therein. The examiner should specifically address (a) all relevant symptoms reported in the Veteran’s service treatment records (to include, but not limited to, notes dated in November 1985 and May 1988), (b) the August 1989 report of medical history in which the Veteran conveyed being unsure whether he had hay fever at service separation, (c) VA treatment records reflecting a diagnosis of allergic rhinitis on or about 2012 to 2013, (d) the March 2011 VA examination report, (e) the April 2016 VA examination report, (f) the March 2018 VA medical opinion, (g) the January 2019 VA medical opinion, (h) all pulmonary function testing performed by the VAMC, to include testing performed in 2011, 2012, and 2013, (i) all methacholine testing performed at the VAMC, to include in July 2013, and (j) VAMC records which note that the Veteran’s asthma symptoms flare with allergies, for example at a visit in February 2012. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner is asked to provide a clear medical rationale for all opinions with discussion of the facts and medical principles involved. (Continued on the next page)   4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.