Citation Nr: 0624129 Decision Date: 08/10/06 Archive Date: 08/18/06 DOCKET NO. 04-02 902 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a cardiovascular disability, claimed as secondary to service-connected diabetes mellitus, Type 2. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Moore, Associate Counsel INTRODUCTION The veteran had over 20 years of active service, which ended in May 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA) that reopened the veteran's application to reopen a claim of service connection for a cardiovascular disability, and denied the claim on the merits. The determination as to whether new and material evidence has been submitted is a threshold jurisdictional issue to be decided independently by the Board, irrespective on the RO's determination on that matter, before it can adjudicate the merits of the issue. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996) (regardless of a determination made by the regional office, the Board must ensure that it has jurisdiction over a case before adjudicating the case on the merits). FINDINGS OF FACT 1. By decision dated in January 1989, the Board denied the veteran's claim for service connection for a cardiovascular disability. 2. The evidence added to the record since the January 1989 Board denial, considered in conjunction with the record as a whole, is not cumulative and redundant and is so significant that it must considered in order to fairly determine if the veteran has a cardiovascular disability that is related to service or a service-connected disability. 3. A cardiovascular disability has been shown by competent evidence to be causally related to the veteran's service- connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. The Board decision of January 1989, which denied service connection for a cardiovascular disability, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104(a), 20.1104 (2005). 2. The evidence received since the January 1989 Board decision is new and material; and the application to reopen the veteran's claim for service connection for a cardiovascular disability is granted. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). 3. A cardiovascular disability was proximately caused by the veteran's service-connected type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Application to Reopen Pursuant to 38 U.S.C.A. § 7104 the January 1989 decision by the Board is final. If new and material evidence is presented or secured with respect to a claim, which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. Absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA, except where there is a finding of error. 38 U.S.C.A. §§ 5108, 7104 (West 2002). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New and material evidence is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran asserts that new and material evidence has been submitted to reopen his claim for service connection for a cardiovascular disability. The record reflects that the Board, in a January 1989 decision, denied the veteran's claim for service connection for a cardiovascular disability on the basis that there was no evidence of heart problems in service or within one year of service discharge. Further, it was noted that cardiovascular disease was not causally related to any service-connected disorders. Evidence received since the final January 1989 decision includes numerous etiological opinions which link current heart disease to his service-connected diabetes mellitus to include a May 2002 VA examination report. This additional evidence, which bears directly and substantially on whether the veteran's cardiovascular disability is related to a service-connected disability has not been previously considered and is not cumulative or redundant. Thus, the additional evidence, considered in conjunction with the record as a whole, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. Accordingly, the Board concludes that the evidence received subsequent to the January 1989 Board denial, considered in conjunction with the record as a whole, is new and material and the claim for service connection for a cardiovascular disability, to include as secondary to service-connected diabetes mellitus, is reopened. Veterans Claims Assistance Act (VCAA) There has been a significant change in the law with the enactment of the VCAA in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations implementing the VCAA are set forth at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. The VCAA and its implementing regulations eliminate the concept of a well- grounded claim, redefines the obligations of VA with respect to the duty to assist, and include enhanced duties to notify a claimant for VA benefits. The Board need not undertake a thorough analysis as to whether the VCAA has been complied with given the grant of service connection, which will be discussed below. The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show. Secondary service connection may be granted for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2005). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 488 (1995). In determining whether service connection 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005). The veteran asserts that service connection is warranted for a cardiovascular disability as it is secondary to his service-connected diabetes mellitus. The record reflects that the veteran is currently service- connected for diabetes mellitus. The record also reflects that the veteran has been diagnosed with, and undergoes treatment for a cardiovascular disability, that has been diagnosed as atherosclerotic heart disease. The Board observes that there are two competent opinions of record that etiologically relate (in sum or in part) the veteran's current cardiovascular disability to his service- connected type 2 diabetes. In this regard, the record establishes that in May 2002, a VA physician, after noting that until the mid -1980's, the veteran had been a 2 pack per day smoker, opined that the veteran's coronary artery disease had a 50 percent contribution from his insulin-dependent diabetes and a 50 percent contribution from his tobaccoism. Additionally, in September 2002, the veteran's treating physician, after reviewing the veteran's prior treatment records, opined that the veteran's uncontrolled diabetes contributed to his heart attack. In weighing the above evidence of record to determine whether there is an etiological relationship between the veteran's cardiovascular disability and diabetes mellitus, the Board finds that the evidence (particularly the finding that his cardiovascular disability is 50 percent due to diabetes and 50 percent due to past tobacco use) is in equipoise. Therefore, resolving all benefit of doubt in the veteran's favor, the Board concludes that the competent evidence of record supports a finding of service connection for a cardiovascular disability, as secondary to service-connected type II diabetes mellitus. ORDER Entitlement to service connection for a cardiovascular disability, as secondary to service-connected diabetes mellitus, Type 2, is granted. ____________________________________________ K. PARAKKAL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs