Citation Nr: 21039885 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-40 630A DATE: July 1, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for hypertension is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection coronary arteriosclerosis, previously claimed as acute coronary syndrome, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for type II diabetes mellitus is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for heart disability, to include coronary arteriosclerosis and acute coronary syndrome, is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. FINDINGS OF FACT 1. In a June 2008 rating decision, the VA Regional Office (RO) denied service connection for hypertension, acute coronary syndrome, and type II diabetes mellitus, finding no evidence that current diagnoses were incurred in or related to service; an appeal was not timely filed within one year of notification of this rating decision. 2. Additional evidence received since the RO's June 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claims for service connection concerning hypertension, acute coronary syndrome, and type II diabetes mellitus, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The RO's June 2008 rating decision that denied service connection for hypertension, acute coronary syndrome, and type II diabetes mellitus, is final. 38 U.S.C. §§ 7105; 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claims for service connection for hypertension, acute coronary syndrome, and type II diabetes mellitus. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1954 to January 1956. This appeal arises from a February 2015 rating decision by the RO, which found, in pertinent part, that new and material evidence had not been received as to the issues concerning hypertension, coronary arteriosclerosis (previously claimed as acute coronary syndrome), and type II diabetes mellitus. At a February 2021 Board of Veterans' Appeals (Board) hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has recharacterized the issue concerning coronary arteriosclerosis, previously claimed as acute coronary syndrome, as heart disability in order to address all relevant cardiac symptomatology, however described. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for hypertension is reopened. 2. New and material evidence having been received, the previously denied claim of entitlement to service connection coronary arteriosclerosis, previously claimed as acute coronary syndrome, is reopened. 3. New and material evidence having been received, the previously denied claim of entitlement to service connection for type II diabetes mellitus is reopened. In the June 2008 rating decision, the RO, inter alia, denied service connection for hypertension, acute coronary syndrome, and type II diabetes mellitus partly on the basis that none of the conditions were incurred in or caused by service. That rating decision also mentioned that the Veteran's service treatment records (STRs) may have been destroyed in a fire in 1973. The RO notified the Veteran of the June 2008 decision in a letter dated June 23, 2008, which informed the Veteran that he had one year from the date of the letter to appeal the decision. While VA received a notice of disagreement on June 29, 2009, because such disagreement was received greater than one year after notification of the June 2008 decision, the decision became final. Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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 U.S.C. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The 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 has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 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." Id. In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. At the February 2021 Board hearing, the Veteran made several contentions. Regarding hypertension, he asserted that such condition started in service due to the pressure and anxiety he experienced while serving across from the DMZ in Korea, being "scared all the time . . . that the enemy would cross the line and hit you, or your need toyou hit them." Similarly, the Veteran testified that he believes he has coronary artery disease because of the pressure he experienced while serving in Korea. Regarding diabetes, he asserted that diabetes was not well known at time of his service and that his diabetes developed in service due to the stress of serving in Korea, to include not eating well. Furthermore, he testified to being treated by different doctors in Puerto Rico since service, who were friends and did not make records of such treatment. This evidence, presumed credible for purposes of reopening, was not before adjudicators when the Veteran's claims were last finally denied, and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to unestablished facts necessary to substantiate the claims for service connection for hypertension, acute coronary syndrome, and type II diabetes mellitus, and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for heart disability, to include coronary arteriosclerosis and acute coronary syndrome, is remanded. 3. Entitlement to service connection for type II diabetes mellitus is remanded. Unfortunately, as mentioned above and as seen in multiple letters (records reconstruction requests) from VA to the Veteran, the Veteran's STRs may have been destroyed in a fire. See, e.g., April 4, 2008, and January 8, 2015, VA Letters. In such situations, where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to consider the benefit-of-the-doubt rule carefully. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. A medical examination or opinion is necessary "if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim" and (1) the record contains competent evidence of a currently diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the Veteran suffered an in-service event, injury, or disease; and (3) the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury, or disease or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). A June 2004 private discharge summary from Centro Cardiovascular de Puerto Rico y del Caribe shows that the Veteran had coronary artery disease with three stents placed and also type II diabetes mellitus. Additionally, VA treatment records show that the Veteran has been treated at VA for hypertension, coronary arteriosclerosis, and type II diabetes mellitus. See, e.g., March 6, 2006, VA Treatment Record. The Board notes that, on an August 2014 claim form, the Veteran indicated that his VA treatment for hypertension, coronary arteriosclerosis, and type II diabetes began in November 2004 in San Juan, Puerto Rico. However, VA treatment records currently associated with the claims file only date back to July 2014. At the Board hearing, the Veteran testified that he was hospitalized, possibly in February 1955, for about three days during service in Busan, Korea. Additionally, he asserted at the hearing that soon after service he was treated at Long Island State College Hospital in Brooklyn, New York, to include treatment for weakness, fatigue, and poor nutrition possibly related to diabetes. Furthermore, the Veteran explained that he was treated informally, without treatment records, by friends starting sometime in the 1960s for his claimed conditions, but that he was treated more formally later on, at least by Dr. Ortega, and that Dr. Ortega provided a positive nexus opinion. Given VA's heightened duty to search records in this case, the Board finds that reasonable efforts should be made to obtains these sufficiently identified records, to include VA treatment records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Further, because no VA examiner has opined as to whether the Veteran's hypertension, heart disease (to include coronary arteriosclerosis and acute coronary syndrome), or diabetes, had an onset in service or are otherwise related to service, remand is warranted to obtain VA examinations with medical opinions. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records not already associated with the claims file, to include VA treatment records from November 2004 to the present. 2. After securing any necessary authorization, obtain any private treatment records dated since the 1960s that the Veteran may identify as relevant to his claims, specifically to include records/statements from Dr. Ortega, and records from Long Island State College Hospital in Brooklyn, New York. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. After outstanding records are obtained to the extent possible, ask the appropriate examiner(s) (for hypertension and heart disease) to review the Veteran's claims file. The necessity of an in-person examination is left to the discretion of the examiner(s). The examiner(s) should opine regarding whether the Veteran's current hypertension and heart disease (to include coronary arteriosclerosis and acute coronary syndrome) at least as likely as not: (a) had an onset in service or (b) are otherwise related to service. The examiner should consider all medical and lay evidence of record, specifically addressing the Veteran's February 2021 Board hearing testimony asserting that he currently has such conditions due to the pressure/stress experienced during service near the DMZ in Korea with such conditions possibly developing during service, and that such conditions were treated informally in the 1960s with treatment possibly starting within a year after service with a hospitalization in Brooklyn, New York. 4. Also, ask the appropriate examiner (for diabetes) to review the Veteran's claims file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether the Veteran's current type II diabetes mellitus at least as likely as not: (a) had an onset in service or (b) is otherwise related to service. (Continued on the next page) The examiner should consider all medical and lay evidence of record, specifically addressing the Veteran's February 2021 Board hearing testimony asserting that he currently has diabetes due to the pressure/stress, to include poor diet/nutrition, experienced during service near the DMZ in Korea with diabetes possibly developing during service; and that such condition was treated informally in the 1960s with treatment for possible diabetic symptomatology such as weakness/fatigue possibly starting within a year after service with a hospitalization in Brooklyn, New York. 5. After the above development and any other development deemed necessary is completed, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED