Citation Nr: 18132344
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-32 173
DATE:	September 6, 2018
ORDER
The appeal of the claim of entitlement to an initial evaluation in excess of 10 percent for hypertension is dismissed.
Entitlement to an earlier effective date prior to July 26, 2011 for the grant of service connection for hypertension is denied.
New and material evidence having been submitted, the claim for entitlement to service connection for a heart disability, to include as secondary to a service-connected disability, is reopened.
Entitlement to service connection for a heart disability as secondary to service-connected hypertension is granted.
FINDINGS OF FACT
1. On May 16, 2018, prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, withdrew his appeal as to the issue of entitlement to an initial evaluation in excess of 10 percent for hypertension.
2. The Veteran’s claim for entitlement to service connection for hypertension was received on July 26, 2011.

3. A January 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran’s claim of service connection for a heart disability; the Veteran was notified of the decision and apprised of his right to appeal, but did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision.
4. Evidence received since the January 2010 rating decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim.
5. Resolving the benefit of the doubt in the Veteran’s favor, his current heart disability was as least as likely as not caused by his service-connected hypertension.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal have been met for the claim for an initial evaluation in excess of 10 percent, for hypertension. 38 U.S.C.           § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).
2. The criteria for entitlement to an effective date earlier than July 26, 2011 for hypertension have not been met.  38 U.S.C. §§ 501, 5101, 5110 (West 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2016).
3. The January 2010 rating decision denying service connection for a heart disability is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017).
4. The criteria for reopening the claim of service connection for a heart disability have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 
5. The criteria for entitlement to service connection for a heart disability on a secondary basis have been met.  38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service with the U.S. Navy from May 1982 to July 1992.  During this time, he was awarded the Southwest Asia Service Medal, the Antarctic Service Medal, and the National Defense Service Medal.
This matter comes to the Board of Veterans Appeals (Board) on appeal from August 2012 and August 2015 rating decisions from the Department of Veterans Affairs (VA) regional office (RO) in Cleveland, Ohio.
Entitlement to an initial increased evaluation for hypertension is dismissed.
Procedurally, the Board notes that in addition to the issues currently on appeal, the Veteran had also previously appealed the issue of entitlement to service connection for hypertension, which was rendered moot by an August 2015 rating decision granting service connection and assigning an initial rating of 10 percent.  The Veteran then appealed the RO’s initial evaluation of hypertension.
In May 2018, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran’s attorney reflecting the Veteran’s desire to withdraw his appeal as concerning the issue of entitlement to an initial increased rating for his hypertension claim.  See May 2018 Correspondence (reporting that on behalf of the Veteran, “we hereby withdraw the claim for increased rating for hypertension.”)
VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits.  See 38 C.F.R. § 20.204.  After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board.  38 C.F.R.    § 20.204(b)(3).  Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn.  38 C.F.R. § 20.204(b)(1). Additionally, withdrawal may be made by the appellant on the record at a hearing.  Id. 
The notification containing the Veteran’s request to withdraw the above-listed issues has been reduced to writing, and it contains his name and claim number. See May 2018 Correspondence. The Board has not yet issued a final decision concerning the claims currently on appeal, thus the criteria are met for withdrawal of the claim of entitlement to an initial evaluation in excess of 10 percent for hypertension. 
When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issues that had been previously appealed.  In such an instance, dismissal of the pending appeal is appropriate.  See 38 U.S.C. § 7105(d).  Accordingly, further action by the Board on this issue is not appropriate and the appeal should be dismissed.  Id. 
Entitlement to an earlier effective date prior to July 26, 2011 for the grant of service connection for hypertension is denied.
Procedurally, the Veteran initially filed a formal claim for entitlement to service connection for hypertension on July 26, 2011.  In an August 2012 rating decision, the Veteran was denied entitlement to service connection, which he timely appealed.  In August 2015, the RO issued a subsequent rating decision granting service connection for hypertension effective July 26, 2011.  The Veteran appealed the effective date assigned in the August 2015 rating decision.  He has asserted through his attorney that he should be awarded service connection for hypertension for an earlier effective date prior to the date initially assigned by the RO.  See September 2015 Notice of Disagreement (VA Form 21-0968); see also July 2017 VA Form 9.
The effective date for service connection is the later of the date of claim, or the date entitlement arose when the claim is received more than one year following separation from service.  38 C.F.R. §3.400.  For reopened claims, the effective date is the date of the receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. §3.400(r).  
While the Veteran contends that the effective date of his claim should date back to earlier than July 26, 2011, the date the formal claim was filed, the Board notes the record also does not contain any reports of contact or any documentation from the Veteran indicating that he had filed either an informal or formal claim prior to July 26, 2011.  
The Veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993).  Nor is VA is required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57.  Here, a review of the record fails to show any formal claim, informal claim, or written intent to file a claim for hypertension prior to July 26, 2011, the date upon which the claim for service-connection was ultimately granted.  
Accordingly, the Board concludes that July 26, 2011, the date of receipt of the claim for entitlement to service connection for hypertension, is the proper effective date.  Therefore, the claim for an earlier effective date for the grant of service connection must be denied as it is without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  
The previously disallowed claim for service connection for a heart disability as secondary to service-connected hypertension is reopened.  
The Veteran’s claim for entitlement to service connection for a heart disability was initially denied by the Cleveland RO in a January 2003 rating decision.  The Veteran timely appealed, which culminated in a January 2009 Board decision denying service connection on that grounds that the evidence did not show a connection between the Veteran’s heart disability and his active military service.  
The Veteran filed to reopen his claim for entitlement to service connection in November 2009, but did not submit any new evidence in support of this claim.  The Cleveland RO continued the previous denial of the Veteran’s claim for entitlement to service connection in a January 2010 rating decision, citing a lack of new and material evidence.  The Veteran did not appeal this decision, and it became final.  
The Veteran again filed to reopen his claim for entitlement to service connection for a heart disability in July 2011.  In support of his petition to reopen the previous denial, the Veteran submitted a private medical opinion that his heart disability was caused by his already service-connected hypertension.  See April 2014 Independent Medical Evaluation/Review.  
Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim.  
A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  New evidence is defined as 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).
The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold.  Id.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Following a review of the evidentiary record, the Board finds that evidence submitted by the Veteran since the date of the January 2010 rating decision constitutes “new” evidence, as it was not available at the time of the issuance of that rating decision.  Moreover, the Board finds that this new evidence is material, as it reflects that that Veteran’s current heart disability is connected to his already service-connected hypertension.  Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a heart disability.
Entitlement to service connection for a heart disability as secondary to service-connected hypertension is granted.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.     §1131; 38 C.F.R. § 3.303(a).  In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d).  
Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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 “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Therefore, the Board will assess the competence and credibility of lay statements as well.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 
In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim.  38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991).  This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits.  Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54).  
Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.  To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).
A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).
The Veteran asserts that his heart disability is secondarily related to his active service.  Specifically, he maintains that this disability was caused by his already service-connected hypertension.
A review of the case file reveals that in June 2002 the Veteran was first diagnosed with idiopathic cardiomyopathy.  See June 2002 Discharge Summary (VA Form 10-1000) (diagnosing the Veteran with idiopathic cardiomyopathy and ruling out such contributory factors as alcohol or drug use).  Thus, the first required element of service connection, a current disability, is fulfilled.  
With respect to secondary service connection, as noted previously, the record must reflect 1) evidence of a current disability, 2) evidence of a service-connected disability, and 3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17.
In an August 2015 rating decision, the Cleveland RO granted the Veteran entitlement to service connection for hypertension effective July 26, 2011, which the Veteran asserts caused his current heart disability.  According, the second required element for secondary service connection, evidence of a service connected disability, has also been satisfied. 
Regarding the third element of secondary service connection, medical nexus, the record contains conflicting medical opinions regarding the link between the Veteran’s current heart disability and his service-connected hypertension. 
A VA examiner previously opined in August 2004 that the Veteran’s idiopathic cardiomyopathy that was not as least as likely as not related to his service-connected hypertension.  See August 2004 VA Compensation and Pension Examination; see also September 2004 Email Correspondence.  In arriving at this conclusion, the examiner cited the to the fact that the Veteran’s cardiomyopathy did not manifest until years after his separation from active service.  See September 2004 Email Correspondence.  The examiner also noted that the Veteran’s cardiomyopathy was not ischemic in nature, and there was no medical evidence showing that it was connected to his service-connected hypertension.  Id.  
However, the Veteran has supplied a contrasting and more recent private medical opinion linking his current heart disability to his service-connected hypertension.  See April 2014 Independent Medical Evaluation and Review.  The Veteran’s private doctor opined that the Veteran’s service connected hypertension was “as likely as not a significant contributing factor to his more-recently diagnosed idiopathic cardiomyopathy” and thus related to his active service.  Id.  In arriving at this opinion, the Veteran’s doctor discussed medical treatise evidence citing hypertension and coronary artery disease as the most common causes of idiopathic cardiomyopathy.  Id.  He noted that the Veteran’s service treatment records reflected multiple manifestations of elevate blood pressure.  Id.  He further indicated that while there was one mention of alcohol and drug use in the Veteran’s treatment records, it was not presented as a causative factor with respect to his cardiomyopathy.  Id.
Certain elements of both the positive and negative medical opinions in this case are probative.  Both sets of evidence have respective strengths and weaknesses.  In such situations, the benefit of the doubt is resolved in the Veteran’s favor.  In determining whether compensation is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  
Accordingly, given the evidence of a current heart disability and a service-connected disability, and resolving the benefit of the doubt in the Veteran’s favor with respect to the medical evidence of a nexus between the Veteran’s currently diagnosed cardiomyopathy and his already-service connected hypertension, the Board finds that his current heart disability is at least as likely as not related to his already-service connected hypertension.  38 C.F.R. §§ 3.303(a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67.  Therefore, the Board finds that service connection for the Veteran’s heart disability as secondary to his already service-connected hypertension is warranted.  
 
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Raj, Associate Counsel 
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