Citation Nr: 21015669 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-19 989A DATE: March 18, 2021 ORDER As new and material evidence has been received, the claim for service connection for heart condition is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for heart condition is remanded. The application to reopen a previously denied claim of entitlement to service connection for hypertension, to include as secondary to heart condition, is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for heart condition was previously denied in an August 2008 rating decision; the Veteran did not appeal 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 August 2008 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 heart condition, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision denying service connection for heart condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for heart condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1976 to December 1978 and November 1982 to January 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in June 2019. A transcript of the hearing is of record. Subsequently, the Board remanded the claims in October 2019 for further development. New and Material Evidence – Heart Condition A claim for service connection for heart condition was most recently denied in an August 2008 rating decision on the basis that the Veteran did not submit new and material evidence to reopen a December 1980 rating decision in which the Agency of Original Jurisdiction (AOJ) denied the claim on the basis that the Veteran’s heart condition is a congenital defect, for which service connection is not warranted. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The AOJ notified the Veteran of its decision and of her 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. The Veteran’s petition currently before the Board to reopen her claim for service connection for heart condition was received by the AOJ in October 2010. The AOJ denied the petition to reopen the claim in a September 2012 rating decision. The AOJ granted the petition to reopen the claim and denied the claim on the merits in a June 2020 supplemental statement of the case. Although the AOJ reopened the claim in the June 2020 supplemental statement of the case, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 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. 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. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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. Shade, 24 Vet. App. at 118. 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. The Board finds the Veteran has submitted new and material evidence since the August 2008 rating decision denying service connection for heart condition. A May 2014 VA treatment record reflects a diagnosis of coronary arteriosclerosis. Treatment records from Malcolm Grow Medical Center contain notations of coronary artery disease in the past medical history section. Furthermore, a February 2020 echocardiogram contains a finding of borderline left ventricular hypertrophy. In addition, the Veteran’s attorney stated at the June 2019 Board hearing that doctors have said that the Veteran’s military service exasperated the Veteran’s congenital heart defect. See Board Hearing Transcript, dated June 28, 2019, page 9. The Board notes service connection can be granted for additional disability on top of the congenital defect that results from a superimposed disease or injury in service. See VAOPGCPREC 82-90 (July 18, 1990). The additional diagnoses of heart conditions and the attorney’s statement that doctors have said the Veteran’s service exasperated her congenital defect were not before adjudicators when the Veteran’s claim was last denied in August 2008, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. The evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for heart condition and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened.   REASONS FOR REMAND 1. Entitlement to service connection for heart condition is remanded. The AOJ denied the Veteran’s petition to reopen her claim for heart condition in an August 2008 rating decision based on a finding that the evidence was not new and material since the Veteran’s diagnosed heart murmur is a congenital defect, for which service connection is not warranted. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Service connection can be granted for additional disability on top of a congenital defect that results from a superimposed disease or injury in service. See VAOPGCPREC 82-90 (July 18, 1990). VA treatment records since the August 2008 rating decision contain diagnoses of coronary arteriosclerosis. Furthermore, a February 2020 echocardiogram contains a finding of borderline left ventricular hypertrophy. In addition, the Veteran’s attorney stated at the June 2019 Board hearing that doctors have said that the Veteran’s military service exasperated her congenital heart defect. A review of the Veteran’s service treatment records shows there is no diagnosis of a heart disability aside from the diagnosis of irregular beat, systolic grade II/VI murmur at the left sternal border at the December 1975 pre-induction examination and the various notations of an irregular heartbeat throughout her service. The record contains reports of chest pain prior to the Veteran’s service, and an undated record prior to enlistment contains a notation of “intermittent, mild, pleuritic pain in the left ant-lat-lower chest.” A June 1976 service treatment record contains a notation that the Veteran reported dizziness and chest ache about 10 minutes after running track. The 1976 service treatment record also reflects that the Veteran has a history of a heart murmur and has had chest pains. Notwithstanding the reports of chest pain prior to service, the evidence of the in-service reports of chest pain and the Veteran’s contention at the June 2019 Board hearing that doctors have said that the Veteran’s service has exasperated her congenital heart defect, it is unclear from the record if there was a superimposed disease during the Veteran’s service. Thus, an additional VA opinion is necessary to determine if there was a superimposed disease or injury on her heart murmur during military service that resulted in additional disability. The Board acknowledges that the Veteran attended a VA examination in January 2020 for an evaluation of her heart condition, and that the examiner opined on February 5, 2020 that the Veteran’s claimed heart condition was less likely than not incurred in or caused by her service. In support of the opinion, the VA examiner noted that the Veteran’s 2017 cardiac condition has resolved, and that the testing on the day of the examination was normal. However, the echocardiogram conducted as part of the examination, dated February 4, 2020, showed borderline left ventricular hypertrophy. Furthermore, there is no opinion in the record as to the Veteran’s diagnosed coronary arteriosclerosis or as to whether there was a superimposed disease or injury on her heart murmur during military service that resulted in additional disability. Thus, an additional opinion is needed. 2. The application to reopen a previously denied claim of entitlement to service connection for hypertension, to include as secondary to heart condition, is remanded. Because a decision on the remanded issue of entitlement to service connection for heart condition could significantly impact a decision on the issue of entitlement to service connection for hypertension, the issues are inextricably intertwined. Thus, a remand of the claim for entitlement to service connection for hypertension, to inlcude as secondary to heart conditon, is required. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from March 2021 to the present. Contact the Veteran and afford her the opportunity to identify or submit any pertinent evidence in support of her claims, to include records of any private treatment. Based on her response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested above, obtain a medical opinion from an appropriate medical professional for the Veteran’s heart condition claim. If the medical professional determines that an in-person or telehealth examination is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical examiner should address the following: Is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury on the Veteran’s heart murmur during military service that resulted in additional disability? In conjunction with the above opinion request, the medical professional should review the Veteran’s claims file, and should specifically address the service treatment records reflecting reports of chest pain, the post-service diagnoses of coronary arteriosclerosis, and the February 2020 echocardiogram showing borderline left ventricular hypertrophy. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development above, undertake any development necessary to adjudicate the claim for entitlement to service connection for hypertension, to include as secondary to heart condition. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.