Citation Nr: 21013743 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-22 797 DATE: March 10, 2021 ORDER New and material evidence having been received, the claim for service connection for ischemic heart disease is reopened. Entitlement to service connection for a stable angina due to presumed exposure to herbicide agents is granted. REMANDED Entitlement to service connection for peripheral vascular disease, to include as due to exposure to herbicide agents and secondary to a stable angina, is remanded. Entitlement to service connection for a carotid artery disability, to include as secondary to a stable angina and secondary to a stable angina, is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for ischemic heart disease was previously denied by a December 2015 rating decision; the Veteran did not complete a substantive appeal of the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the December 2015 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for ischemic heart disease, and raises a reasonable possibility of substantiating the claim. 3. The Veteran is presumed to have been exposed to herbicide agents during service; he has been diagnosed with a stable angina which is a cardiovascular disease considered to be ischemic heart disease. CONCLUSIONS OF LAW 1. The December 2015 rating decision denying service connection for ischemic heart disease is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for ischemic heart disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for presumptive service connection for a stable angina are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to November 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Agency of Original Jurisdiction (AOJ) that declined to reopen the Veteran’s claim of entitlement to service connection for ischemic heart disease. This matter is also before the Board from an August 2018 rating decision of the AOJ that denied service connection for peripheral vascular disease and for a carotid artery disability. The claim for service connection for ischemic heart disease is reopened The Veteran’s claim of service connection for ischemic heart disease was originally denied by a February 2014 decision. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. In a December 2015 rating decision, the RO denied the Veteran’s petition to reopen his claim for service connection for ischemic heart disease. The Veteran filed a timely notice of disagreement with the denial in January 2016. The RO issued a Statement of the Case confirming the denial in April 2018. The Veteran did not file a timely substantive appeal. Therefore, the December 2015 rating decision became final. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The February 2014 and December 2015 decisions denied the claim of service connection for ischemic heart disease based on a finding that the Veteran did not have a diagnosis of ischemic heart disease. Evidence added to the record since December 2015 includes a December 2018 VA examination report indicating the Veteran had a diagnosis of stable angina. The examiner also noted that the Veteran brought medical records indicating that ischemic heart disease was “a possibility.” A December 2017 private treatment record noted a diagnosis of angina pectoris. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the December 2015 decision. It is also material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for ischemic heart disease, that the Veteran has a diagnosis of ischemic heart disease, and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection for ischemic heart disease is reopened. Entitlement to service connection for a stable angina is granted. The Veteran asserts that he is entitled to service connection for ischemic heart disease, to include stable angina, based on his presumed exposure to herbicide agents in Vietnam. The Board finds that service connection is warranted on a presumptive basis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection can also be established on a presumptive basis for certain diseases associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection on this basis, a Veteran who, during active military service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(f); 3.307(a)(6). If a Veteran is presumed to have been exposed to herbicide agents during active service and develops an enumerated disease associated with exposure to herbicide agents to a degree of 10 percent or more, the disease shall be service-connected even if there is no record of such disease during service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Ischemic heart disease (which includes stable angina) is associated with herbicide exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). The Veteran’s service personnel records indicate that he served in Vietnam, and he has verified service in Vietnam from September 1968 to February 1969. He is therefore presumed to have been exposed to herbicide agents. A December 2017 private treatment record noted a diagnosis of angina pectoris. The Veteran was afforded a VA examination in December 2018. The examination report notes a diagnosis of “stable angina.” The examiner stated that the Veteran’s heart condition did not qualify within the generally accepted medical definition of ischemic heart disease. The examiner stated that no diagnosable ischemic heart disease was identified in the Veteran’s claims file. Although the VA examiner indicated that the stable angina was not ischemic heart disease, the relevant regulations define ischemic heart disease as including, but 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. 38 C.F.R. § 3.309(e). The Veteran is presumed to have been exposed to herbicide agents in Vietnam, and has been diagnosed with a stable angina, which is included in the regulatory definition of ischemic heart disease. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a stable angina on a presumptive basis have been met. Accordingly, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for peripheral vascular disease, to as due to exposure to herbicide agents and secondary to the stable angina, is remanded. 2. Entitlement to service connection for a carotid artery disability, to include as due to exposure to herbicide agents and secondary to the stable angina, is remanded. The Board cannot make a fully-informed decision on the issue of whether the Veteran has peripheral vascular disease or a carotid artery disability that is related to service because no VA examiner has opined as to whether the Veteran’s conditions are related to service, to include due to his exposure to herbicide agents in Vietnam. The Veteran has also asserted that the conditions are secondary to his stable angina. The Veteran’s VA treatment records, including an October 2019 record, reflect that he has been diagnosed with peripheral vascular disease, occlusion and stenosis of carotid A, left carotid artery stenosis, and heart valve diseases. A May 2008 VA treatment record notes a history of carotid stenosis and a right cartoid endarterectomy in 1982. A September 2016 private treatment record notes a diagnosis of cartoid artery disease. A December 2017 private treatment record noted a diagnosis of occlusion and stenosis of the bilateral carotid arteries. As noted above, the Veteran served in Vietnam from September 1968 to February 1969, and is therefore presumed to have been exposed to herbicide agents. In a June 2018 statement, a private physician stated, “it may be possible that [Agent Orange] could have resulted in vascular disease involving your carotid arteries . . .” As the Veteran has been diagnosed with peripheral vascular disease and carotid artery disease, and there is evidence suggesting a nexus between the disabilities and his exposure to herbicide agents in service, a VA examination and opinion is necessary addressing the question of the etiology of the Veteran’s claimed peripheral vascular disease and carotid artery disability. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for peripheral vascular disease and a carotid artery disability, to include carotid artery disease and a right carotid artery endarterectomy. The examiner must review the claims file and identify all current disabilities. The examiner is asked to provide a response to the following: a) Is any diagnosed peripheral vascular disease and/or carotid artery disability, at least as likely as not related to service, including the Veteran’s in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. b) Is any diagnosed peripheral vascular disease or carotid artery disability at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s stable angina? c) If the examiner finds that the Veteran has a carotid artery disability that is at least as likely as not related to service, is any diagnosed peripheral vascular disease at least as likely as not proximately due to or aggravated beyond its natural progression by a carotid artery disability? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. J. Barone Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.