Citation Nr: 22046331 Decision Date: 08/16/22 Archive Date: 08/16/22 DOCKET NO. 18-15 482 DATE: August 16, 2022 ORDER New and material evidence (NME) having been received, the petition to reopen previously denied claims of entitlement to service connection for a heart disorder, to include coronary artery disease (CAD) is granted. New and material evidence (NME) having been received, the petition to reopen previously denied claims of entitlement to service connection for renal/kidney failure is granted. Entitlement to service connection for a heart disorder, to include CAD, is denied. Entitlement to service connection for renal/kidney failure is denied. FINDINGS OF FACT 1. An October 2010 rating decision denied entitlement to service connection for a heart disorder and kidney failure on both a direct and secondary basis. A VA letter dated the same month notified the Veteran of the decision. The Veteran did appeal the decision nor was additional related evidence received within one year of the rating decision. 2. Evidence added to the record since the October 2010 rating decision raised a possibility of proving the claim. 3. The evidence of record is persuasively against a finding that a heart disorder, to include CAD, had onset in active service or is otherwise causally connected to active service. 4. The evidence of record is persuasively against a finding that renal/kidney failure had onset in active service or is otherwise causally connected to active service. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied claims of entitlement to service connection for a heart disorder, to include CAD, and renal/kidney heart failure is final. 38 U.S.C. § 7105 (a), (b)(2)(A); 38 C.F.R. §§ 20.201, 20.202, 20.302, 20.1103. 2. NME to reopen previously denied claims of entitlement to service connection for a heart disorder, to include CAD, and renal/kidney heart failure has been received. The claims are reopened. 38 U.S.C. § 5103A (h); 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a heart disorder, to include CAD have not been met. 38 U.S.C. § 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.303; 3.307(a)(3); 3.309(a). 4. The criteria for entitlement to service connection for renal/kidney failure have not been met. 38 U.S.C. § 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.303; 3.307(a)(3); 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1979 to February 1992. Afterward, he was a member of a State Army National Guard (NG). He died in August 2020 after he perfected an appeal of the issues noted in the Title Page. The appellant is his surviving spouse, and she has been duly substituted in his stead. See 08/25/2020 Death Certificate; 08/24/2020 VA 21-0847; 02/01/2021 AMA Notification. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ) in December 2017. See 12/13/2017 Hearing Testimony. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing at the AOJ offices. See 03/29/2022 Hearing Transcript. Transcripts of both hearings are of record and have been reviewed. Service Connection Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Heart disorders are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); 38 C.F.R. § 3.102. Entitlement to service connection for a heart disorder, to include CAD, and renal/kidney failure. NME Applicable law requires that once a claim is denied, VA will not reopen it except on the basis of NME. 38 U.S.C. § 5108. As noted, the Veteran initially applied for VA compensation for a heart disorder and kidney failure in October 2010. The asserted basis for his claim was as due to diabetes mellitus (DM). See 02/23/2010 VA 21-0820. In the October 2010 rating decision, the AOJ reviewed the service treatment records (STRs) and other evidence in the file and determined that the Veteran's diagnosed DM was not service connected, as it did not have onset in active service or within one year of his active service. The AOJ also determined that the Veteran's heart disorder and kidney failure did not have onset in active service or within one year of his active service. Hence, the claim was denied on a direct and secondary basis. See 10/04/2010 Rating Decision. A VA letter of the same date in October 2010 notified the Veteran of the decision. See 10/04/2010 Notification. The Veteran did not appeal the decision nor was additional related information received within one year. Hence, the October 2010 rating decision became final. The Board notes that the Veteran's specific heart claim was that of service connection for congestive heart failure. While that was the case, the Board notes further that his claim was deemed to include all heart disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran had perfected an appeal of a claim of service connection for DM. His DM was diagnosed in 1998, which was after his discharge from active service and while he was a member of his State NG. He asserted that because it was detected during a tour of active duty for training his claim should be granted. See 06/19/2008 Hearing Request. In a 2011 decision, the Board determined that the Veteran's DM did not have onset in active service, nor was it causally related to active service. See 08/25/2011 BVA Decision. Board decisions are final when issued. 38 C.F.R. § 20.1100. In a 2018 rating decision, the AOJ denied the Veteran's application to reopen that claim. See 02/07/2018 Rating Decision. He was notified of the decision that same month. See 02/13/2018 Notification. The Veteran did not appeal the denial of his application to reopen. At the hearing before the AOJ DRO and at the appellant's hearing before the undersigned VLJ, the Veteran asserted the possibility of direct service connection for his CAD and kidney failure. That testimony was not before the rating board in 2010. Further, since all evidence is deemed credible and material for purposes of reopening a claim, see Justus v. Principi, 3 Vet. App. 510, 513 (1992), and because of the low threshold for reopening a claim, see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Board finds that NME has been presented. Hence, the claims are reopened. In addition to finding that the claim is reopened, the Board also finds that the record is sufficiently developed to decide the issue on the merits without the necessity of a remand. Duty to Assist The Board notes that the Veteran was not afforded a VA examination as part of the adjudication of his application to reopen the claims. Nonetheless, the Board finds no prejudice. VA will provide a medical examination or obtain a medical opinion where there is insufficient competent medical evidence to make a decision on the claim but: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). These requirements are the same in instances of where a previously denied claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). Initially, the Board finds that the required condition precedent is not present, which is that the competent medical evidence of record is insufficient to decide the claim. The medical evidence of record is clearly shows that the Veteran's DM was diagnosed several years after his discharge from active service, and his heart and kidney disease were diagnosed many years after his DM during the mid-2000s. The Veteran submitted a non-VA medical opinion that his renal/kidney failure was due to his DM and diabetic nephropathy. See 07/05/2018 Medical Treatment-Non-Government Facility. The evidence of record clearly shows that the Veteran's heart disease did not have onset until many years after his active service. There is no evidence of in-service onset. The Board notes the assertion of the Veteran's representative at both of the hearings that notations of chest pain the Veteran's STRs were in fact heart related which were misdiagnosed. See 03/29/2022 Hearing Transcript, P. 12. Specifically, what medical personnel in service assessed as flu symptoms or bronchitis was in fact heart symptomatology. The Board finds the representative's assertions are speculative at best. First, there is no evidence that the representative has any medical training. Hence, she is not competent to suggest that a medical diagnosis of record was in fact a misdiagnosis. See 38 C.F.R. § 3.159(a). At the Board hearing, the undersigned VLJ informed the appellant and her representative of needed evidence that would help her claim. To date no additional evidence has been received. Thus, the Board finds no pre-decisional error by the fact that the AOJ did not afford the Veteran a VA examination or refer the claim file for a medical review after the appellant was substituted for the Veteran. Decision on Merits of Reopened Claims As noted above, the appellant's representative asserts that the Veteran in fact had heart-related symptoms in service. In fact, on his Report of Medical History for his examination for enlistment in the NG, the Veteran denied any complaints or history of shortness of breath, chest pressure or pain, or heart symptoms. The Report of Examination reflects that the Veteran's heart was assessed as normal, and his albumin and sugar were negative. See 11/01/2006 STR-Medical, P. 3, 28. There is no evidence that the Veteran ever disputed that fact. In his several attempts to obtain service connection, the Veteran asserted that it was due to his DM. The file reflects that he submitted the same evidence on each occasion, the 1998 entry in his NG STRs that note that his glucose was consistent with DM. Hence, the Board attaches no materiality to the representative's lay speculations. The appellant testified before the DRO in December 2017 that she and the Veteran were married in 2004, but she had known him since 1998, and that his chest pains started while they were dating. Assuming arguendo that the Veteran's chest pains the appellant noted were in fact a precursor to his heart disease, this still was six years after his discharge from active service. The appellant's testimony before the undersigned did not change the evidentiary posture of the case. The Board notes the Veteran's testimony before the DRO where he opined that his heart and kidney disabilities developed because of the stress and rigors to which he was subjected during his active service. See 12/13/2017 Hearing Testimony, P. 7. The Board acknowledges that the Veteran is fully competent to testify to the symptoms he experienced during his active service as well as the history of his disorders. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). The Board finds, however, that opining on the etiology of a heart or a kidney disorder, especially many years after the fact, requires medical training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran had medical training. Hence, his personal opinion on the issues is not probative. As noted earlier, the undersigned VLJ informed the appellant of all potential evidence that would help in substantiating her claim. The undersigned also suggested to the appellant and the representative that they look into the Veteran's exposure to burn pits during his tour in Saudi Arabia from December 1990 to April 1991. The record of the hearing was held open for 90 days for receipt of any additional evidence. See Hearing Transcript, P. 6. As noted, no additional evidence has been received. The Board notes the recent passage of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which will provide for presumptive service connection for certain respiratory disorders in Veterans who were exposed to burn pits in the Persian Gulf. The Board notes further that the Veteran's Problem List reflected in his VA outpatient records does not include any of the respiratory illnesses listed under PACT. (Continued on the next page) Thus, the Board finds that the evidence of record is persuasively against a finding that either the Veteran's heart disorder or his renal/kidney failure had onset in active service or is otherwise causally connected to active service. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Hence, the Board is constrained to deny the claim. Since the evidence of record is persuasively against the claim, there is no reasonable doubt to resolve. See Lynch, 999 F.3d 1391. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Snyder, William T. 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.