Citation Nr: 21029626 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-06 354A DATE: May 14, 2021 ORDER The Board having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for a heart disorder, is granted. REMANDED The appeal as to the claim of entitlement to service connection for a heart disorder is remanded. The appeal as to the claim of entitlement to service connection for bilateral hearing loss is remanded. The appeal as to the claim of entitlement to service connection for tinnitus is remanded. The appeal as to the claim of entitlement to service connection to chronic obstructive pulmonary disease (COPD), to include as secondary to a heart disorder, is remanded. The appeal as to the claim of entitlement to service connection for bronchitis, to include as secondary to COPD, is remanded. FINDINGS OF FACT 1. An October 2007 rating decision denied the claim to reopen entitlement to service connection for a heart disorder; the Veteran did not appeal the decision and it became final. 2. Evidence subsequently received is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a heart disorder. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied the claim to reopen entitlement to service connection for a heart disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for a heart disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1974 to July 1976. His service was under honorable conditions. The matters are on appeal from July 2013 and June 2017 rating decisions. In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of this hearing has been prepared and associated with the evidence of record. New and Material Evidence General Legal Criteria Generally, a claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed about the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart disorder. The Veteran's claim of entitlement to service connection for a heart disorder was initially denied by the RO in an August 1976 rating decision; he appealed the decision, and the Board denied the claim in a March 1977 decision. Subsequently, the Veteran submitted several claims to reopen the issue of entitlement to service connection for a heart disorder, and the previous denial was confirmed and continued in rating decisions dated in April 1982, September 1982, December 1982, April 1988, February 1989, March 1993, May 1993, June 2004, and April 2005; he did not appeal these decisions. In July 2007, the Veteran submitted a claim to reopen the issue. In an October 2007 rating decision, the previous denial was confirmed and continued; he did not appeal the decision. Evidence considered at the time of the October 2007 rating decision consisted of service treatment records, and VA outpatient treatment records dated in January 2005, through June 2007. The service treatment records note diagnoses of aortic coarctation. In May 2013, the Veteran submitted a statement requesting that the claim of entitlement to service connection for a heart disorder be reopened. In the July 2013 rating decision on appeal, the RO declined to reopen the issue of entitlement to service connection for a heart disorder. Notwithstanding the RO's actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence received since the October 2007 rating decision includes testimony from the Veteran during the January 2021 hearing before the Board, indicating that he did not experience any symptoms of a heart disorder prior to active service. Specifically, he testified that his symptoms of shortness of breath and chest pain first arose during active service, and have continued to the present. The aforementioned evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim of entitlement to service connection for a heart disorder, is in order. Shade, 24 Vet. App. at 110. REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder. The Veteran contends that his current congenital heart disorder had its onset during active service; however, he contends that if the disorder is found to have preexisted service, it was subject to a superimposed injury that occurred during, or as a result of, active service. In this regard, during a January 2021 hearing before the Board, the Veteran testified that his symptoms progressively worsened during service due to required physical activity. Service treatment records include an April 1974 induction examination, which is negative for complaints or, treatment for, or a diagnosis of a heart disorder. A May 1974 record that notes the Veteran sought treatment for swelling of his feet and ankles post required physical activity. A January 1975 record that shows the Veteran sought treatment for sharp pain when inhaling, which he experienced since June 1974. A March 1975 record demonstrates the Veteran sought treatment for sharp pain when inhaling. An April 1975 record demonstrates the Veteran sought treatment for chest pain. A February 1976 record that notes a diagnosis of coarctation of the aorta. The report of an April 1976 chronic illness examination notes diagnosis of prominent carotid pulsations, Grade I/VI murmur on left, posteriorly; Grade II/VI systolic ejection murmur; and definite pulse lag in femoral arteries. The examiner found the Veteran not fit for active duty. A June 1976 medical evaluation board proceeding indicates a diagnosis of congenital coarctation of the aorta, which was not detected at the time of entry into active service. The Board found that during two years of active service, the Veteran developed symptoms of dizziness and headaches, which were attributed to his heart disease. Post-service records include VA outpatient and private treatment records dated from October 1976 to April 2014, which note diagnoses of coarctation of the aorta. In a February 2019 letter from M.F., M.D., concludes that the Veteran's current heart disorder began during active service, as it was not noted in his induction examination. A veteran is presumed to be in sound condition when accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not in itself constitute a notation or a pre-existing condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). The Board notes that congenital or developmental defects are generally not service-connected because they are not diseases or injuries under VA law and regulations. 38 C.F.R. §§ 3.303 (c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1996). However, service connection may be granted for a disability that is shown by the evidence to have resulted from a congenital or developmental defect, which was subject to a superimposed injury that occurred during, or as a result of, active service. See VAOPGCPREC 82-90 (1990), 56 Fed. Reg. 45711 (1990). Accordingly, a remand for a VA examination and medical opinion is necessary to determine if the Veteran's current heart disorder clearly and unmistakably preexisted active service. In addition, the examiner must address whether any preexisting heart conditions were aggravated beyond their natural progression by the Veteran's active service. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for bilateral hearing loss. See argument Below at 3 3. Entitlement to service connection for tinnitus. The Veteran contends that his current bilateral hearing loss and tinnitus disorders began during active service and progressively worsened. Specifically, during the January 2021 hearing before the Board, he testified that as a machine gun operator, he was exposed to weaponry, grenades, helicopters, and a loud explosion when a battery blew up in his face and he lost his ability to hear for a few minutes. The Veteran reported that he initially noticed ringing in his ears in 1978, two years after separation from service. Service treatment records include the report of an April 1974 induction examination, which is negative for complaints of, treatment for, or a diagnosis of a hearing disorder. A May 1975 record notes the Veteran's complaint of reoccurring difficulty hearing from his left ear. A September 1975 record shows he sought treatment for right ear pain that was ongoing for the past three weeks. Post-service records include contemporaneous VA outpatient treatment records that note the Veteran's report of decreased hearing and ringing in his ears. A February 2019 letter from M.F., M.D., the Veteran's private physician, notes current diagnoses of bilateral hearing loss and tinnitus. Given the Veteran's ongoing statements and testimony of a worsening of hearing since active service and his current bilateral hearing loss and tinnitus diagnoses, a VA examination and opinion are necessary to make a determination in this case. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for COPD, to include as secondary to a heart disorder. The Veteran contends that his current COPD disorder began during active service due to exposure to herbicide agents in Vietnam, and in the alternative, that it is secondary to his claimed heart disorder. During the aforementioned hearing, the Veteran testified that he initially noticed shortness of breath following a training activity that required running. He further asserted that his condition worsened after discharge from active service. Service treatment records are negative for complaints of, treatment for, or a diagnosis of COPD. A February 2019 letter from M.F., M.D., the Veteran's private physician, notes a current diagnosis of COPD. Given the Veteran's ongoing statements and testimony of a worsening of breathing since active service and his current COPD diagnosis, a VA examination and opinion are necessary to make a determination in this case. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for bronchitis, to include as secondary to COPD. Regarding his remaining claim for entitlement to service connection for bronchitis, the Veteran contends that as a result of his COPD disability, he developed bronchitis. Given the Veteran's contentions regarding secondary service connection under 38 C.F.R. § 3.310, the claim of service connection for bronchitis, should be held in abeyance pending completion of this development and subsequent readjudication of the COPD claim. As this claim is being remanded, updated VA outpatient treatment records should also be obtained. 38 C.F.R. § 3.159. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any current cardiac disorder, to coarctation of the aorta. The examiner must review the record, to include service treatment records, VA and private treatment records, and the Veteran's statements and testimony. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion with respect to each heart disorder present during the period of the claim, to include coarctation of the aorta. Specifically, the examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the disorder was present in service and, if so, did the disorder clearly and unmistakably exist prior to the Veteran's entrance onto active duty? "Clear and Unmistakable" evidence means evidence that cannot be misunderstood or misinterpreted and leads to an undeniable conclusion. With respect to any such disorder which the examiner believes existed prior to the Veteran's entrance onto active duty, was the disorder aggravated by service? Please indicate the degree of certainty as to whether or not the disorder (s) was or was not aggravated by service. With respect to any currently present disorder which the examiner believes was not present during service, is it at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to the Veteran's active service? In providing the opinion, the examiner must discuss the service treatment records, which show that the Veteran sought treatment for swelling of his feet and ankles post required physical activity in May 1974, sharp pain when inhaling for the past eight months in January 1975, sharp pain when inhaling in March 1975, treatment for chest pain in April 1975, treatment for and a diagnosis of coarctation of the aorta in February 1976, and the report of an April 1976 chronic illness examination that notes diagnoses of prominent carotid pulsations, Grade I/VI murmur on left, posteriorly; Grade II/VI systolic ejection murmur; and definite pulse lag in femoral arteries. For purposes of the opinions, the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Afford the Veteran a VA examination by a physician with sufficient expertise to address the etiology of any hearing disability present during the period on appeal, to include bilateral hearing loss and tinnitus. The examiner must review the record, to include service treatment records, VA and private treatment records, and the Veteran's statements and testimony. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. Based on the review of the record and the examination results, the examiner should identify all hearing disorders, to hearing loss and tinnitus, that have been present during the period of the claim. With respect to each hearing disorder present during the period of the claim, the examiner must state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder, to include bilateral hearing loss and tinnitus, originated during service or are otherwise etiologically related to the Veteran's service, to include his exposure to noise during service. In providing the opinions, the examiner must discuss the theory of delayed or latent onset of hearing loss, as well as the Veteran's lay statements regarding his noise exposure while serving as a machine gun operator, where he was exposed to weaponry, grenades, helicopters, and a battery exploding in his face. The examiner must also comment on the service treatment records, to include a May 1975 record that notes the Veteran's complaint of reoccurring difficulty hearing from his left ear, and a September 1975 record that shows treatment for right ear pain that was ongoing for the past three weeks. For purposes of the opinions, the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Afford the Veteran a VA examination by a physician with sufficient expertise to address the etiology of any lung disability present during the period on appeal, to include COPD. The examiner must review the record, to include service treatment records, VA and private treatment records, and the Veteran's statements and testimony. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. Based on the review of the record and the examination results, the examiner should identify all lung disorders, to COPD, that have been present during the period of the claim. With respect to each such disorder, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder originated during service or is otherwise etiologically related to the Veteran's service, to include exposure to herbicide agents. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder(s) was caused or aggravated by his service-connected disabilities. In providing the opinions, the examiner must discuss the Veteran's testimony before the Board, that he initially noticed shortness of breath following a training activity that required running. For purposes of the opinions, the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on the next page) 5. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 6. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.