Citation Nr: 22017358 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-56 554 DATE: March 24, 2022 ORDER The previously denied claim of entitlement to service connection for ischemic heart disease is reopened and to that extent only the appeal is granted. REMANDED Entitlement to service connection for heart disability, to include as due to herbicide agent exposure, is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a May 2013 rating decision, the Regional Office denied service connection for ischemic heart disease finding no current disability. 2. Additional evidence received since the May 2013 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. CONCLUSIONS OF LAW 1. The Regional Office's May 2013 rating decision denying service connection for ischemic heart disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 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. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a VA Regional Office (RO), which found no new and material evidence since the prior denial of the Veteran's claim for service connection for ischemic heart disease, continued the Veteran's 50 percent rating for psychiatric disability, and denied TDIU. In the September 2017 statement of the case, it appears the RO reopened the ischemic heart disease claim and denied it on the merits. The RO's decision to reopen the claim is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues have been appropriately recharacterized above. 1. The previously denied claim of entitlement to service connection for ischemic heart disease is reopened and to that extent only the appeal is granted. In a May 2013 rating decision, the RO denied service connection for ischemic heart disease based on lack of a current disability. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. Accordingly, the May 2013 rating decision became final. The claim 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 C.F.R. § 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). At the time of the May 2013 rating decision, the record contained service treatment records, VA and private treatment records, and a VA examination report (noting no ischemic heart disease). The evidence received since the time of the May 2013 rating decision includes a March 2016 VA treatment record in which the Veteran's treating primary care physician noted the Veteran has hypertension with evidence of ischemic heart disease which is at least as likely as not related to chemical exposures in Vietnam. This evidence was not before adjudicators when the Veteran's claim was 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 an unestablished fact necessary to substantiate the claim for service connection for ischemic heart disease (current disability) and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND Outstanding SSA Records These matters must be remanded to obtain potentially relevant records from the Social Security Administration (SSA). Review of the Veteran's claims file shows that the Veteran is in receipt of SSA disability. See February 2017 VA Treatment Record. However, the SSA records are not in the claims file. These records should be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 1. Entitlement to service connection for heart disability, to include as due to herbicide agent exposure, is remanded. While the April 2013 VA examiner noted no ischemic heart disease, a more recent VA treatment record in March 2016 shows the Veteran's treating primary care physician noted the Veteran has hypertension with evidence of ischemic heart disease. The primary care physician stated the Veteran's private cardiologist has noted increasing symptoms of ischemic heart disease. The Veteran's VA treatment records list ischemic heart disease as an active problem based on this treatment note but then also question whether the active problem list is accurate. While there are indications the Veteran may have an ischemic heart disease diagnosis, and it is listed as an active diagnosis, the records in the claims file reference symptoms of ischemic heart disease but do not show a specific diagnosis of ischemic heart disease rendered by a medical professional. It is unclear from the evidence in the claims file whether the Veteran has a current ischemic heart disease diagnosis. The Board notes that the Veteran has presumed herbicide agent exposure for his service in Vietnam. Ischemic heart disease is included among the diseases presumptively service connected based on exposure to herbicide agents. 38 C.F.R. § 3.309(e). Accordingly, remand is appropriate to obtain VA medical opinion regarding whether the Veteran has a current ischemic heart disease disability. If the VA examiner finds other heart disabilities, medical opinion should be obtained regarding whether such disabilities are related to service. 2. Entitlement to a rating in excess of 50 percent for PTSD is remanded. The Veteran submitted his mental health treatment records from the Princeton Vet Center with his October 2015 claim. However, the Veteran's reports and his June 2016 VA psychiatric examination show the Veteran continues to receive treatment at the Princeton Vet Center and these updated treatment records have not been obtained. The Board notes that the Veteran was asked to provide authorization for such treatment on both the VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs, forms. The Veteran submitted both authorization forms but instead generally listed the VA medical center. Another opportunity to obtain Vet Center records should be provided to the Veteran. Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records. See Dunn v. West, 11 Vet. App. 462, 466 (1998). 3. Entitlement to a TDIU is remanded. The claim for TDIU is inextricably intertwined with the issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the TDIU claim must be remanded. The Veteran's October 2015 TDIU application listed $60,000 in "earned income" for the prior 12 months but also reported his last employment was in 2008. While this matter is on remand, the Veteran should be given an opportunity to provide a new TDIU application with complete information for any period for which he seeks TDIU, with clarification regarding the earned income reported on his earlier TDIU application. While this matter is on remand, any additional outstanding private and VA treatment records should be obtained, including any additional records from the Veteran's private cardiologist Dr. Javad and any VA treatment records from October 2016 to the present. The matters are REMANDED for the following action: 1. Provide a new VA Form 21-8940 to the Veteran and request that he supply the requisite information, with clarification regarding the earned income reported on his earlier TDIU application. 2. Contact SSA and request all relevant records relating to the Veteran which are in SSA's possession. A copy of any requests sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records. 3. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to the claims, including any additional records from the Veteran's private cardiologist Dr. Javad. 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. 4. Obtain any additional VA treatment records, to include VA treatment records from October 2016 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran's claims file. 5. Contact the Princeton Vet Center and obtain copies of all of the Veteran's outstanding medical records from this facility from October 2015 to the present. Document all requests for information as well as all responses in the claims file. If the records cannot be obtained and it is determined that further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 6. After the above development has been conducted to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any heart disability the Veteran has presented during the claims period. The examiner should specifically address whether the Veteran has ischemic heart disease. In doing so, the examiner should address the Veteran's March 2016 VA treatment record noting that the Veteran has evidence of ischemic heart disease and that the Veteran's private cardiologist has noted increasing symptoms of ischemic heart disease. For each disability other than ischemic heart disease, the examiner should opine regarding whether it is at least as likely as not that the disability is related to service, to include the Veteran's herbicide agent exposure during service. The examiner should consider all medical and lay evidence of record. The mere fact that a presumption has not been established for the particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the herbicide agent exposure. The examiner is asked to explain the reasons behind any opinions expressed. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell, 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.