Citation Nr: 21011073 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-41 614 DATE: February 26, 2021 ORDER New and material evidence has been submitted to reopen the claim for entitlement to service connection for heart condition(s), to include as due to herbicide-agent exposure, and to this extent only, the claim is granted. REMANDED Entitlement to service connection for heart condition(s), to include as due to herbicide-agent exposure, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A January 2009 rating decision denied service connection for heart condition(s). 2. The Veteran filed a timely notice of disagreement and submitted new and material evidence within one year of the rating decision. 3. The RO then issued an October 2009 statement of the case continuing denial of service connection from which the Veteran timely appealed. 4. The Veteran later unambiguously, voluntary, and knowingly withdrew his appeal in a December 2009 correspondence and affirmed his withdrawal during his September 2011 hearing before the Board of Veterans’ Appeals. 5. The Board issued a February 2012 decision dismissing the Veteran’s claim for service connection for heart condition(s) based on his withdrawal. 6. The January 2009 rating decision became final when the Veteran withdrew his appeal. In addition, new and material evidence was not received within the appeal period, except for that evidence that was adjudicated by the agency of original jurisdiction within the October 2009 statement of the case. 7. Since the final January 2009 rating decision, unadjudicated new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran’s claim for service connection for heart condition(s). CONCLUSION OF LAW The January 2009 rating decision that denied service connection for heart condition(s) is final; however, new and material evidence has been submitted and, thus, the claim is reopened. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 20.302 (prior to February 19, 2019), 20.1103 (prior to February 19, 2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1963 until his honorable discharge in June 1966. He subsequently served in the Air National Guard of Massachusetts and as a Reserve in the United States Air Force from January 1978 until his honorable discharge in January 1981. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). In July 2008, the Veteran filed a claim for service connection for his heart condition(s). In a January 2009 rating decision, the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA) denied service connection. The Veteran filed a timely notice of disagreement. He then submitted new and material evidence within one year of the rating decision. The RO then issued an October 2009 statement of the case (SOC) continuing denial of service from which the Veteran filed a Form 9, notice of appeal, on November 20, 2009. But on December 2, 2009, he filed a second Form 9 in which he specifically withdrew his claim for service connection for heart condition(s) from appeal. Because the Veteran perfected his appeal, the RO certified his appeal to the Board despite his written request to withdraw his appeal. Because other claims were pending in addition to his service-connection claim for his heart condition(s), the Veteran was afforded a Board hearing in September 2011 before a Veterans Law Judge (VLJ). That VLJ has since left the Board. The transcript of the hearing is of record. During the hearing, the Veteran confirmed his desire to withdraw his appeal for his claim for service connection for his heart condition(s). September 2011 Board Hearing Transcript, at 11. The Board issued a February 2012 decision dismissing the Veteran’s claim for service connection for heart condition(s) based on his voluntary withdrawal of the claim. But the Board also found the Veteran raised an “informal application” to reopen his claim during the hearing. Accordingly, the Board referred the issue to the RO for appropriate action. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims. In a September 2013 Board decision, the Board discussed its prior findings and referral of the Veteran’s informal application to reopen his claim for heart condition(s). The Board noted that the RO had not properly adjudicated the claim. The Board again referred the claim to the RO for adjudication in the first instance. In May 2014, the Veteran filed a claim to reopen his claim for service connection for heart condition(s). In November 2014, he amended his claim to include a theory of exposure to herbicide agents during active service. In February 2015, he filed a formal claim for total disability rating based on individual unemployability (TDIU). These matters now come before the Board on appeal from a July 2015 rating decision by the Huntington, West Virginia, RO of VA, which denied reopening the Veteran’s claim for service connection for heart condition(s) and denied entitlement to TDIU. In September 2020, the Veteran testified at a videoconference Board hearing before the undersigned VLJ. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 90 days to allow for the submission of additional evidence. During that timeframe, the Veteran submitted VA documentation illustrating the use of herbicide agents at Aberdeen Proving Ground in Maryland where he was stationed, and he submitted a medical opinion from a private physician as to the association between herbicide agents and his heart condition(s). New and material evidence has been submitted to reopen the claim for entitlement to service connection for heart condition(s), to include as due to herbicide-agent exposure, and to this extent only, the claim is granted. Before addressing whether the Veteran has submitted new and material evidence to reopen his claim, the Board needs to address the context surrounding the finality of the January 2009 rating decision and its impact on the Board’s decision. Under 38 C.F.R. § 20.302(a) (2009), applicable at the time of the January 2009 rating decision, the Veteran was required to file a notice of disagreement with the RO’s January 2009 rating decision within one year of the date that that agency mailed notice of the determination to him. The Veteran did so. If the Veteran had not filed a notice of disagreement within the time period, the January 2009 rating decision would have become final. Following the issuance of the October 2009 SOC, 38 C.F.R. § 20.302(b)(1) (2009) provided, “a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction 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. The Veteran did file a timely substantive appeal. Had he not, the January 2009 rating decision would have become final. In the time between his notice of disagreement and the RO’s October 2009 SOC, the Veteran submitted multiple pieces of new and material evidence, and the RO also associated relevant federal records and medical records with the Veteran’s claims file. When the RO issued its October 2009 SOC, it considered the newly associated evidence as part of its adjudication. When the Veteran subsequently withdrew his appeal, the withdrawal was effective when received by the RO on December 2, 2009. 38 C.F.R. § 20.204(b)(3) (2009). As such, the Veteran’s withdrawal of his appeal constituted a “withdrawal of the Notice of Disagreement and . . . the Substantive Appeal[.]” 38 C.F.R. § 20.204(c) (2009). Thus, his withdrawal was the equivalent of not filing a notice of disagreement or a substantive appeal. See 38 C.F.R. § 20.1103 (2009) (“A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part).”). When the RO issued the October 2009 SOC, it adjudicated all evidence of record at that time. At that point, the Veteran could still have provided new and material evidence or filed a new notice of disagreement within the applicable one-year period following the January 2009 rating decision, but he did not. Therefore, the January 2009 rating decision became final. The Board now turns to whether new and material evidence has been submitted to reopen he Veteran’s claim for service connection for heart condition(s). For the purposes of reopening claims decided by the agency of original jurisdiction (AOJ) before February 19, 2019 (the effective date of the Veterans Appeals Improvement and Modernization Act of 2017), such claims are still considered “legacy appeals” and are to be analyzed under VA’s traditional “legacy” process. See 38 C.F.R. § 3.156(a); 38 C.F.R. § 3.2400(b). Under the legacy process, a veteran “may reopen a finally adjudicated legacy claim by submitting new and material evidence.” 38 C.F.R. § 3.156(a). Here, the Veteran’s claim was finally adjudicated by the AOJ on January 15, 2009, thus, the “new and material evidence” standard applies. Regardless of the AOJ’s determination as to whether new and material evidence was received, the Board must address the issue in the first instance because it ultimately affects the Board’s jurisdiction to adjudicate the underlying claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460‒61 (2007) (citation omitted). The Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the last final disallowance is “new and material.” Id. If it is, the Board must then reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Id. “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 and must raise a reasonable possibility of substantiating the claim.” 38 C.F.R. § 3.156(a). The language of section 3.156(a) “does not require new and material evidence as to each previously unproven element of a claim”; instead, it compels reopening whenever a claimant submits new and material evidence “as to an unestablished fact from the previously denied claim.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In Shade, the Court held that the language of section 3.156(a), requiring the new evidence raise a reasonable possibility of substantiating the claim, is an analytical guide that creates a low threshold rather than a separate element. Id. at 117. In determining whether the low threshold is met, however, VA should consider whether the new and material evidence could, if the claim was reopened, reasonably substantiate the claim, to include triggering VA’s duty to assist or through consideration of an alternative theory of entitlement not previously established by the evidence, id. at 117‒19, but not including “presentation of new arguments based on evidence already of record at the time of the previous decision,” Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (emphasis added). Is the evidence “new”? “New evidence” “is evidence not previously part of the actual record before agency adjudicators.” 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As part of the Veteran’s pending claim, he asserts exposure to Agent Orange during his active military service at Aberdeen Proving Ground (Aberdeen), a United States Army facility in Maryland. At his September 2020 Board hearing, he testified that VA documented data showed Agent Orange was used at Aberdeen in 1963, two months prior to his arrival for active service, and was again used in 1965 during his active service. Following his Board hearing, the Veteran submitted a computer screenshot of online documents from VA.gov, which indicated dates, specific sites, and quantities of herbicide-agent use at Aberdeen. Particularly, usage was documented in May 1963, May 1965 through July 1965, and August 1965 through September 1965. In addition, the Veteran testified that while he did not personally observe usage of Agent Orange, he witnessed the destruction of foliage and believed he was exposed to it based on his assigned duty to drive dignitaries around Aberdeen for tours and to “move” suspected herbicide agents. The Veteran also submitted a medical opinion from a private physician, Dr. A.C., who opined that the Veteran’s associated exposure to herbicide agents, particularly Agent Orange, made it more likely than not that his heart condition(s) were caused by herbicide-agent exposure during his military service. Finally, the Veteran submitted a correspondence in May 2014 listing certain medical professionals that he saw for his heart condition(s), to include Dr. T.S., Dr. J.S., Dr. B.K., Dr. T.A., Dr. C.M., and Dr. L.R. He also listed medical facilities he was treated at, to include Boston University Medical Hospital, Good Samaritan Hospital, Morton Plant Group, Bayonet Point Hospital, St. Joseph’s Hospital, and Bay Heart Group. The Board observes medical records from Dr. T.A., Dr. C.M., and Dr. L.R., as well as records from Morton Plant Group, Bayonet Point Hospital, St. Joseph’s Hospital, and Bay Heart Group are of record for the time periods the Veteran identified in his correspondence, but none of the others are of record. The above evidence is presumed credible. The Board finds this evidence was not part of the record before the RO when it issued its January 2009 rating decision or October 2009 SOC. Therefore, this evidence is “new.” 38 C.F.R. § 3.156(a). Is the evidence “material”? “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.” 38 C.F.R. § 3.156(a). The RO did not consider exposure to herbicide agents, to include Agent Orange, when it issued its January 2009 rating decision because the Veteran never asserted this theory of service connection. Thus, the question as to whether the Veteran was exposed to herbicide agents during his military service and whether his heart condition(s) was/were caused by such exposure are unestablished facts necessary to substantiate his claim. Therefore, his testimony about his service at Aberdeen, including his locations, timeframes, and duties, the VA.gov online information about herbicide-agent usage at Aberdeen, and Dr. A.C.’s medical opinion as to the Veteran’s heart condition(s) are each, individually and collectively, material evidence. 38 C.F.R. § 3.156(a). The Veteran’s proffered herbicide-agent usage at Aberdeen around and during his service periods would reasonably trigger VA’s duty to assist under 38 U.S.C. § 5103A. Likewise, his listed medical professionals and facilities would also reasonably trigger VA’s duty to assist under 38 U.S.C. § 5103A. VA’s duty to assist includes making “reasonable efforts to obtain relevant [private] records” so long as the claimant “adequately identifies” those records. 38 U.S.C. § 5103A(b)(1). The Veteran has adequately identified the cited medical records. Therefore, this evidence is material as it reasonably relates to unestablished facts necessary to substantiate the Veteran’s claim. Conclusion The Board finds the Veteran has submitted new and material evidence warranting reopening of his claim for service connection for heart condition(s). The new and material evidence raises as reasonably possibility of substantiating his claim for service connection for heart condition(s). 38 C.F.R. § 3.156(a). In the interest of completeness, the Board observes that since the October 2009 SOC, the RO has associated military service treatment records (STRs) and personnel records (MPRs) with the Veteran’s claims file. Pursuant to 38 C.F.R. § 3.156(c)(1), if VA receives “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.” (Emphasis added). “Relevant” records include records relating to the injury for which the claimant is seeking benefits and that have a reasonable possibility of helping to substantiate a veteran’s claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010). Although these service records were received after the most recent, relevant adjudication (the October 2009 SOC), the service records that were added are not relevant because they did not have a reasonable possibility of helping to substantiate the Veteran’s claim for service connection for heart condition(s). The STRs do not reasonably relate to substantiating a current disability, in-service event, injury, or illness while in service, or a medical nexus. Nor would they have reasonably triggered VA’s duty to assist in some fashion. As to his MPRs, they are relevant, but only as they relate to his claim for service connection in relation to his theory of herbicide-agent exposure. Prior to amending his May 2014 claim to reopen to include a theory of herbicide-agent exposure, his MPRs did not reasonably relate to substantiating a current disability, in-service event, injury, or illness while in service, or a medical nexus. Nor would they have reasonably triggered VA’s duty to assist in some fashion. Prior to November 2014 (when he amended his claim to include a theory or herbicide-agent exposure), VA did not have notice that he was claiming exposure to herbicide agents while at Aberdeen. Aberdeen is not a location associated with presumptive herbicide-agent exposure. See 38 C.F.R. §§ 3.307(a)(6)(iii)–(v). VA could not reasonably be expected to guess the Veteran was seeking service connection on this theory. Therefore, the MPRs only became relevant to establishing his location and dates at Aberdeen in November 2014, when he put VA on notice of this theory for service connection. 38 C.F.R. § 3.156(c)(2) (Paragraph (c)(1) . . . does not apply to records that VA could not have obtained when it decided the claim because . . . the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.”). Otherwise, the MPRs were duplicative of his relevant military service history already of record. Accordingly, the STRs and MPRs that were associated with the Veteran’s claims file following the last, final adjudication of his claim for service connection for a heart condition(s) (the October 2009 SOC) do not warrant automatic reopening. 38 C.F.R. § 3.156(c). REASONS FOR REMAND 1. Entitlement to service connection for heart condition(s), to include as due to herbicide-agent exposure, is remanded. Having determined that the Veteran presented new and material evidence that raises the reasonable possibility of substantiating his claim for service connection for his heart condition(s), the Board turns to the merits of his claim. Importantly, once the case is reopened, the presumption as to the credibility of evidence no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Within the Veteran’s claims file is a Memorandum from VA indicating a formal finding “that the Veteran’s exposure to Agent Orange [could] not be verified.” July 2015 VA Memorandum. According to the Memorandum, however, VA’s efforts were only focused on the Veteran’s exposure to Agent Orange during service in Guam. VA did not consider any reasonable exposure to herbicide agents at Aberdeen. In addition, the VA has not developed information related to the Veteran’s cited medical treatment. Accordingly, the Board finds that is necessary to remand the Veteran’s claim for service connection for his heart condition(s) for proper development consistent with VA’s duty to assist. 38 U.S.C. § 5103A. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As the grant or denial of service connection for the Veteran’s heart condition(s) may reasonably affect the adjudication of his claim for TDIU on either a schedular or extraschedular basis, the Board finds these issues to be inextricably intertwined, and entitlement to TDIU must be remanded pending completion of development on the question of service connection for the Veteran’s heart condition(s). Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file, to include medical treatment at any VA medical facilities from approximately 2000 through the present, as according to his September 2020 Board hearing testimony, he was treated at VA medical centers beginning around 2000. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records, to include those listed in his May 28, 2014 correspondence with VA, which include, but are not limited to: (a.) Dr. T.S.; (b.) Dr. J.S.; (c.) Dr. B.K.; (d.) From Boston University Hospital; (e.) From Good Samaritan Hospital; (f.) From Jordan Hospital; and (g.) Any other private treatment received for his heart condition(s) that are relevant. Reasonable attempts must be made to obtain relevant private medical records. 3. Submit appropriate requests to the appropriate agency, such as the Joint Service Records Research Center Division (JSSRC), the United States Department of Army, or any other appropriate source, requesting verification of the use of herbicide agents, to include Agent Orange, at U.S. Army facility, Aberdeen Proving Ground in Maryland, during and around the time of the Veteran’s active service at that location. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each source should be associated with the claims file. If the requested information is unavailable, a formal finding of unavailability should be prepared and associated with the claims file. The RO should pursue all development to its logical conclusion. 4. Only after directives 1, 2, and 3 are completed, obtain a VA examination from an appropriately qualified clinician to provide an opinion as to the onset and etiology of the Veteran’s heart condition(s), to include as due to herbicide-agent exposure. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion on the following: (a.) Please identify what heart condition(s) the Veteran had during the claim period, from July 2008 to the present, to include dates of diagnosis. (b.) Please explain whether any of the identified heart conditions would be characterized as “ischemic heart disease.” Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina. (c.) As to each identified condition, please opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s heart condition had its onset in or is otherwise etiologically related to his active military service, to include in-service exposure to herbicide agents, to include Agent Orange. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following: (a.) The Veteran’s September 2020 Board hearing testimony that he began experiencing heart problems immediately after exiting active military service. See September 2020 Board Hearing Transcripts, at 9‒11. (b.) His active military service at Aberdeen Proving Ground in Maryland during which he asserted exposure to Agent Orange. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his heart condition(s), including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of heart condition(s) in service or the assertion that an in-service event, injury, or illness led to his current heart condition(s). See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner must identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 5. Only after all the above directives are completed and any other reasonably necessary development is completed, the RO must readjudicate the Veteran’s claims for (i) service connection for heart condition(s), and (ii) entitlement to total disability due to individual employability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.