Citation Nr: 21027998 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-16 798 DATE: May 10, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for concentric left ventricular hypertrophy, is granted. Entitlement to service connection for concentric left ventricular hypertrophy, is granted. REMANDED Entitlement to service connection for a heart condition other than concentric left ventricular hypertrophy, is remanded. FINDING OF FACT 1. The Regional Office (RO) previously denied the Veteran's claim of entitlement to service connection for concentric left ventricular hypertrophy (previously claimed as a heart condition) in an October 2011 rating decision on the basis that the evidence did not show an in-service disease or injury or a medical nexus linking concentric left ventricular hypertrophy (previously claimed as a heart condition) to service. 2. Evidence submitted subsequent to the October 2011 decision concentric left ventricular hypertrophy (previously claimed as a heart condition) bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for concentric left ventricular hypertrophy. 3. The competent and credible evidence shows the Veteran's mild concentric left ventricular hypertrophy is due to or aggravated by a service-connected disability. CONCLUSION OF LAW 1. The October 2011 rating decision which denied entitlement to service connection for concentric left ventricular hypertrophy (previously claimed as a heart condition) 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 in order to reopen the claim of entitlement to service connection for concentric left ventricular hypertrophy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for concentric left ventricular hypertrophy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1981 to May 1995 and from December 2002 to December 2003 during peace time and the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated October 2016. In June 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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). 1. Concentric left ventricular hypertrophy By way of background, the RO initially considered and denied the Veteran's claim for entitlement to service connection for concentric left ventricular hypertrophy in October 2011. At the time of the last final decision, the Veteran asserted that his concentric left ventricular hypertrophy was caused by his active duty in Bosnia-Herzegovina while running in combat gear. See November 2010 VA Form 21-526. The RO denied the claim because evidence at that time failed to show a permanent residual or chronic heart disability related to service or a service-connected disability. See October 2011 VA Rating decision. The Veteran was notified of the October 2011 rating decision, but he did not file a notice of disagreement within one year of the rating decision, and new and material evidence was not submitted within one year of the issuance of the decision. As no further action was pursued, this decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In July 2014, the Veteran submitted an application to reopen his previously denied claim. The RO denied the request. Thereafter, another request was filed in April 2016. Notably, the RO, in an October 2016 rating decision, reopened the Veteran's claim. Notwithstanding this finding, the Board must still assess its jurisdiction. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (In order to assess its jurisdiction over the merits of the claim, the Board has an independent duty to determine whether new and material evidence was submitted.). The evidence of record submitted since the last final decision on the claim includes, inter alia, a private positive nexus opinion from Dr. V. P. See June 2020 Private Medical Opinion. This evidence is new and material, in so much as it was not previously part of the Veteran's claims file, before the prior final denial, and material because it relates to an unestablished fact, a nexus, that reasonably raises the possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). As noted above, the Board will presume the credibility of this opinion at this juncture. See Justus, supra. Given the low bar for reopening claims, the Board finds that this opinion is sufficient to qualify as new and material evidence. The claim for service connection for concentric left ventricular hypertrophy is reopened. See 38 C.F.R. § 3.385; see also Shade, supra; Hodge, supra. Reopening of the claim for concentric left ventricular hypertrophy is accordingly warranted. To this extent only, the appeal is granted. Service Connection The Veteran is seeking service connection for concentric left ventricular hypertrophy. That he contends is due to his military service. Specifically, the Veteran contends that his diagnosed concentric left ventricular hypertrophy, is a result of active duty in Bosnia-Herzegovina while running in combat gear and did not exist until deployment in support of Operation Iraqi Freedom (OIF). See November 2010 VA Form 21-526, November 2016 VA Form 21-0958 NOD; March 2018 VA Form 9; June 2020 Board Videoconference. Applicable Laws and Regulations Establishing service connection on a "direct" basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, certain chronic diseases, certain heart conditions, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury, or for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The determination as to whether the requirements for service connection are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999).; 38 C.F.R. § 3.303(a). Factual Background The Veteran's entrance examination found him to be clinically normal except for a noted eye surgery at 13 years of age. See October 1981 Service Treatment Records (STR) at 44-45. An examination in February 2002, noted the Veteran as having had sinus surgery in the early 1990's and the Veteran reporting being in excellent health. See February 2002 STR at 64. Chest x-ray performed in September 2003, note "[n]o acute cardiopulmonary disease. Consider follow up films as clinically indicated." See September 2003 STR at 15. However, STR from September 2003, note a diagnosis of hypertensive cardiovascular syndrome. See September 2003 STR at 18. In August 2011, the Veteran presented for a Heart Compensation and Pension Examination where the examiner diagnosed the Veteran with high blood pressure. See August 2011 Heart Compensation and Pension Examination at 4. No other diagnoses were reported. Id. Discharge notes dated June 2015 from the University of Kansas Hospital note a diagnosis of mild concentric hypertrophy and a left ventricul (LV) ejection fracture (EF) of 55 percent. See June 2015 Non-Government Treatment Records at 12. In August 2015, the Veteran presented to the Providence Medical Center emergency room (ER), with complaints of chest pain where he was diagnosed with acute myocardial infarction. See August 2015 Non-Government Treatment Records at 12. In October 2016, the Veteran presented to a VA Heart Conditions (Including Ischemic & Non-ischemic Heart Disease, Arrhythmias, Valvular Disease and Cardiac Surgery) Disability Benefits Questionnaire (DBQ), where he was diagnosed with an old myocardial infarction, coronary artery disease, and diastolic dysfunction. See October 2016 VA Heart Conditions DBQ. The examiner noted the Veteran's heart condition is not related to service. The examiner opined, STR's noted a diagnoses of hypertensive cardiac syndrome on active duty service; however, the available evidence "fails to show permanent residual or chronic disability subject to service connection". Id. at 8. The examiner further opined the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner also noted the Veteran's condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. However, the examiner opined the Veteran's mild concentric left ventricular hypertrophy and mild diastolic dysfunction are the "normal progression of long[-]standing hypertension on the heart even if it [is] well controlled." Id. at 13. In June 2020, the Veteran submitted a private medical opinion from Dr. V. P. See June 2020 Non-Government treatment records. Dr. V. P. diagnosed the Veteran with coronary artery disease (CAD) and opined that it is more likely than not the Veterans CAD is related to an injury, disease, or event occurring during the Veteran's military service. Id. Analysis A. Presumptive Service Connection As an initial matter, the Board finds that the Veteran has a current diagnosis of concentric left ventricular hypertrophy. See June 2015 Non-Government Treatment Records at 12; October 2016 VA Heart Conditions DBQ. The Board notes that the Veteran is not entitled to presumptive service connection for concentric left ventricular hypertrophy on a presumptive basis as the evidence does not suggest that he was diagnosed within one year of service separation, which would be by December 2004. In fact, review of the Veteran's claims file shows that he was first diagnosed with concentric left ventricular hypertrophy in June 2015, more than 12 years after separation from service. See June 2015 Non-Government Treatment Records at 12. However, because the Veteran has left ventricular hypertrophy, a chronic condition, the theory of service connection through continuity of symptomatology is relevant. See 38 C.F.R. §§ 3.303(b) (allowing chronic diseases for which chronicity is not shown during service to show continuity of symptomatology after discharge to support a claim), 3.309(a) (2020) (listing arthritis as a chronic disease); see also Rose v. West, 11 Vet. App. 169, 171 (1998) (service connection may be awarded where a disease manifests itself during service but is not identified until later; where there is a showing of continuity of symptomatology after discharge; and where medical evidence relates the symptomatology to the veteran's present condition). Here, the Veteran's statements regarding his heart condition and associated chest pain both in and after service are significant facts related to service connection under a theory of continuity of symptomatology, which does not require nexus. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (noting that "there is no 'nexus' requirement for . . . a chronic disease which was shown in service as long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease"). However, in reference to the Veteran's left ventricular hypertrophy, the evidence of record does not establish that he has had continuous symptoms of left ventricular hypertrophy since he separated from service. Although, the Veteran was diagnosed with hypertension at the time of separation, he was not diagnosed with left ventricular hypertrophy until 12 years after separation. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. B. Direct Service Connection Current Disability The Board finds that the Veteran has a current diagnosis of concentric left ventricular hypertrophy. See June 2015 Non-Government Treatment Records at 12; October 2016 VA Heart Conditions DBQ. Thus, the first element of service connection is met. In-Service Incurrence With respect to the second element of service connection, an in-service incurrence, this element has been established. Specifically, where the veteran's service treatment records show a diagnosis of hypertensive cardiovascular syndrome. See September 2003 STR at 18. Nexus The third element of service connection is a causal relationship between the present disability, and the disease or injury incurred or aggravated during service. The Board finds that the record does not establish a nexus between the Veteran's currently diagnosed concentric left ventricular hypertrophy and any incident in the Veteran's active service to include his conceded hypertensive cardiovascular syndrome. See November 2010 VA Form 21-526, November 2016 VA Form 21-0958 NOD; March 2018 VA Form 9; June 2020 Board Videoconference. The veteran was examined by VA in August 2011. See August 2011 Heart Compensation and Pension Examination. On a review of the STRs and the Veteran's medical history, the examiner diagnosed the Veteran with high blood pressure, no other disabilities were evaluated due to a lack of medical records. Id. Subsequently the Veteran was service connected for hypertension of the heart. See October 2011 Rating Decision. In October 2016, the Veteran was again examined by VA. See October 2016 VA Heart Conditions DBQ. The examiner diagnosed the Veteran with an old myocardial infarction, coronary artery disease, and diastolic dysfunction. On a review of the STRs and the Veteran's medical history, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner also noted the Veteran's condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. Id. Furthermore, the Veteran's private clinician did not opine on the veteran's concentric left ventricular hypertrophy. See June 2020 Non-Government treatment records. Dr. V. P. diagnosed the Veteran with coronary artery disease (CAD) and opined that it is more likely than not the Veterans CAD is related to an injury, disease, or event occurring during the Veteran's military service. Id. The only evidence in support of the claim for concentric left ventricular hypertrophy disability is the Veteran's own assertions that he suffers from this disorder as a result of his military service. See November 2010 VA Form 21-526, November 2016 VA Form 21-0958 NOD; March 2018 VA Form 9; June 2020 Board Videoconference. Unfortunately, the record does not demonstrate that he is qualified to make such a diagnosis. This determination requires specialized medical education in order to render a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, there is no competent evidence of record that shows that the Veteran has a disability related to service. C. Secondary Service Connection Current Disability Finally, turning to service connection on a secondary basis, the first element is met, as noted above. Service-Connected Disability As to the second element of secondary service connection, the record reflects the Veteran is currently in receipt of service connection for hypertension of the heart. See October 2011 Rating Decision. Therefore, this element is also met. Nexus Turning to the third element of secondary service connection, whether there is a nexus between the service-connected disability and the disabilities for which benefits are sought, the Board finds that the October 2016 VA Heart Conditions (Including Ischemic & Non-ischemic Heart Disease, Arrhythmias, Valvular Disease and Cardiac Surgery) DBQ supports a finding of service-connection on a secondary basis. See October 2016 VA Heart Conditions DBQ. Specifically, the discharge notes from the University of Kansas Hospital note a diagnosis of mild concentric hypertrophy. See June 2015 Non-Government Treatment Records at 12. Moreover, the October 2016 VA examiner opined the Veteran's mild concentric left ventricular hypertrophy and mild diastolic dysfunction are the "normal progression of long-standing hypertension on the heart even if it [is] well controlled." See October 2016 VA Heart Conditions DBQ at 13. The October 2016 VA examiner considered the nature of the Veteran's left ventricular hypertrophy, its history, and relevant longitudinal complaints in proffering the opinion. Thus, this opinion is highly probative, as it was based on medical principles, and applied to the facts of the case. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). As such, the Veteran's claim of entitlement to service connection for left ventricular hypertrophy is granted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Heart condition other than concentric left ventricular hypertrophy Entitlement to service connection for a heart condition other than concentric left ventricular hypertrophy is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary for additional development. In August 2011, the Veteran presented for a Heart Compensation and Pension Examination where the examiner diagnosed the Veteran with high blood pressure. See August 2011 Heart Compensation and Pension Examination at 4. No other diagnoses were reported. Id. Therefore, the examiner did not address direct or secondary service connection for any other diagnosed heart conditions. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, another examination is necessary to determine the nature and etiology of the Veteran's heart condition(s) other than concentric left ventricular hypertrophy. In October 2016, the Veteran presented to a VA Heart Conditions (Including Ischemic & Non-ischemic Heart Disease, Arrhythmias, Valvular Disease and Cardiac Surgery) Disability Benefits Questionnaire (DBQ), where he was diagnosed with an old myocardial infarction, coronary artery disease, and diastolic dysfunction. See October 2016 VA Heart Conditions DBQ. The examiner opined the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner also opined the Veteran's condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. However, the examiner does not address aggravation, and therefore, the opinion cannot be considered adequate to the extent it that it does not address aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). In June 2020, the Veteran submitted a private medical opinion from Dr. V. P. See June 2020 Non-Government treatment records. Dr. V. P. diagnosed the Veteran with coronary artery disease (CAD) and opined that it is more likely than not the Veterans CAD is related to an injury, disease, or event occurring during the Veteran's military service. Id. The Board finds this opinion is inadequate for rating purposes because the opinion is conclusory, in so much as the opinion does not provide supporting rationale from the Veteran's service treatment record or post service treatment records. The opinion provider did not include any supporting analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 102, 124 (2007). In addition to clear conclusions with supporting data, a medical opinion must contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In sum, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to obtain a VA opinion regarding the nature and etiology of the Veteran's heart condition(s) other than concentric left ventricular hypertrophy. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file all outstanding VA records from October 2016 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the records and the Veteran informed if any of these records are unable to be secured. 2. After the above has been completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any heart condition(s), to include CAD and an old myocardial infarction. The examiner must review the entire record, and any indicated studies should be performed. The examiner is asked to: (a.) Obtain the Veteran's lay in-service and post-service history, including onset of symptomatology and employment. (b.) For each diagnosed heart condition, the examiner must provide the following opinions: i. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such heart condition had its onset during, or is otherwise related to, the Veteran's active duty service. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such heart condition is caused by the Veteran's service-connected (1) hypertension of the heart, OR (2) left ventricle hypertrophy. iii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such heart condition had in incremental increase (aggravated) by the Veteran's service-connected (1) hypertension of the heart OR (2) left ventricle hypertrophy. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.