Citation Nr: 0945507	
Decision Date: 12/01/09    Archive Date: 12/08/09

DOCKET NO.  06-27 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Louisville, Kentucky


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
ventricular premature contractions (VPCs).

2.  Entitlement to service connection for a heart condition 
to include VPCs. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel




INTRODUCTION


The Veteran served on active duty from October 1945 to 
January 1947.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2003 rating decision of the RO 
in Huntington, Virginia which declined to reopen the claim 
for service connection for VPC.  This claim is under the 
jurisdiction of the Louisville, Kentucky RO. 

In a March 2007 supplemental statement of the case, the RO 
appears to have reopened the previously denied claim for 
service connection for VPCs and denied the claim on the 
merits.  However, before considering a claim that has 
previously been adjudicated, the Board must determine that 
new and material evidence was presented or secured for the 
claim, as a jurisdictional matter.  Jackson v. Principi, 265 
F. 3d 1366 (Fed. Cir. 2001).

The medical evidence now demonstrates that the Veteran 
manifests a heart condition variously diagnosed, to include 
VPCs.

The issues have thus been recharacterized as presented on the 
first page of this decision.

The issue of service connection is addressed in the REMAND 
portion of the decision below and is REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The September 1950 rating decision denied service 
connection for VPC; the Veteran did not file an appeal.

2.  Additional evidence received since the September 1950 
rating decision is neither cumulative nor redundant and 
raises a reasonable possibility of substantiating the 
Veteran's claim of entitlement to service connection for VPC.


CONCLUSIONS OF LAW

1.  The September 1950 rating decision, denying service 
connection for VPC, is final.  38 U.S.C.A. § 7105 (West 
2002); 38 C.F.R. § 20.1103 (2009).

2.  New and material evidence has been submitted for the 
claim of entitlement to service connection for VPC; the claim 
is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

In light of the favorable action taken herein, discussion of 
whether VA has met its duties of notification and assistance 
is not required, and deciding the appeal at this time is not 
prejudicial to the Veteran.

The claim for service connection for VPC was denied in a 
September 1950 rating decision because there was no evidence 
of a heart disability in the service treatment records, and 
because the diagnosed VPC was not a condition for which 
compensation was payable.  See Schedule for Rating 
Disabilities, 1945 edition, Diagnostic Codes 7010 through 
7015.  Thus, the Veteran's claim was initially denied because 
he did not have a current disability that was compensable 
under VA law, in addition to there being no evidence of a 
heart disability in service.  

The Veteran was notified of this decision in a September 1950 
letter.  He did not appeal the decision.  Consequently, it 
became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. 
§ 20.1103.  

Under 38 U.S.C.A. § 5108, VA may reopen a previously and 
finally disallowed claim when "new and material" evidence 
is presented or secured with respect to that claim.  "New 
evidence" means evidence not previously submitted to agency 
decision makers, and "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.  38 C.F.R. § 3.156(a).  
The 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.  Id. 

The provisions of 38 U.S.C.A. § 5108 require a review of all 
evidence submitted by or on behalf of a claimant since the 
last final denial on any basis to determine whether a claim 
must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 
(1996).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence 
is to be presumed, unless it is inherently false or untrue 
or, if it is in the nature of a statement or other assertion, 
it is beyond the competence of the person making the 
assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); 
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Lay 
assertions of medical causation or diagnosis do not 
constitute credible evidence, as lay persons are not 
competent to offer medical opinions.  Tirpak v. Derwinski, 2 
Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. 
App. 492, 494 (1992). 

At the time of the 1950 rating decision, the relevant 
evidence consisted of the Veteran's service treatment 
records, a May 1948 application for VA hospitalization in 
which the Veteran complained of shortness of breath and 
dizziness lasting several days, and an August 1950 VA 
hospital discharge record reflecting a diagnosis of VPC.  The 
relevant evidence submitted since the September 1950 rating 
decision consists of private treatment records dated from 
1984 to 1992, a November 1984 Social Security Administration 
(SSA) examination, a VA examination report dated in January 
1986, and VA treatment records dated from 2001 to 2007.  

First, the schedular criteria for heart conditions has 
changed. See 38 C.F.R. § 4.100 (effective October 6, 2006) 
and, generally, 38 C.F.R. § 4.104 (2009).

Second, private and VA medical evidence now demonstrate that 
the Veteran manifests a heart condition.

Private treatment records dated in 1984 reflects that the 
Veteran reported with complaints of chest congestion and 
abdominal distention.  He reported being a truck driving and 
having to seek emergency treatment recently while driving due 
to experiencing weakness and fever.  He was placed on 
Quinaglute because of abnormal heart rhythms.  It is noted 
that Quinaglute is the trademark for a preparation of 
quinidine gluconate, which is used in the treatment of 
certain cardiac arrhythmias.  Dorland's Illustrated Medical 
Dictionary, at 1591 (31st ed. 2007).  On his return trip, he 
was again hospitalized following transient syncopal episode, 
also while driving.  The Veteran was admitted.  Clinical 
findings showed left anterior fascicular block with ST-T wave 
changes by electrocardiogram (EKG).  It was felt that these 
abnormalities perhaps represented occult ischemic heart 
disease.  Another entry indicated that it was possible the 
Veteran had a prior viral illness.  Holter monitor results 
revealed many VPCs but no sustained ventricular tachycardia.  
The final diagnosis was of VPCs.  In 1986, he was again 
hospitalized and treated for fever of undetermined etiology 
and ventricular arrhythmia.  The Veteran was started on 
Quinaglute, Procan-SR, Quinaglute Dura-Tabs, and Isordil, 
among other medications.  It is noted that Isordil is the 
trademark for preparations of isosorbide dinitrate, which is 
used in the treatment of coronary insufficiency and angina 
pectoris.  Dorland's at 980.  EKG findings revealed sinus 
tachycardia, left axis deviation, left ventricular block, and 
diffuse ST-T wave nonspecific changes; and Holter monitor 
results showed some evidence of frequent VPCs with 
ventricular bigeminy at times.  

The November 1984 SSA consultative examination reflects that 
the Veteran reported chest pain and shortness of breath for 
about two months, occurring once a week.  The examiner noted 
the Veteran had been prescribed Procan-SR and cardiac 
arrhythmia medication.  EKG findings showed inferior 
intraventricular conduction delay, nonspecific generalized 
ST-T abnormalities, and frequent VPCs.  The examiner 
indicated that the Veteran's chest pain was indicative of 
angina pectoris and possibly ischemic heart disease, and 
noted that the Veteran's reported syncopal episode previously 
was perhaps related to arrhythmia.  As the Veteran appeared 
to have adequate pulmonary function on a clinical basis, the 
examiner further suspected that the shortness of breath might 
be related to cardiac dysfunction.  

VA examination conducted in January 1986 shows diagnoses of a 
history of premature ventricular contractions and a history 
of chest pain and shortness of breath suggestive of angina 
pectoris.  Heart disease was noted to be probable, but not 
proven at this point.  If chest pain and shortness of breath 
were present, the examiner explained, it could be consistent 
with the diagnosis of arteriosclerotic heart disease.

VA treatment records dated from 2001 to 2006 document 
findings of a history of arrhythmia; an underlying sinus 
rhythm, episodes of accelerated idioventricular rhythm and 
frequent VPCs; non-diagnostic EKG evidence of ischemia; large 
infero-apical and infero-septal myocardial ischemia (MI); 
moderate left ventricle enlargement; minimal cardiac 
enlargement without evidence of definite venous congestion; 
abnormal left axis deviation, and left ventricular 
hypertrophy with repolarization abnormality; left anterior 
fascicular block and nonspecific ST and T wave abnormality; 
and experienced difficulty in switching from quinidine 
gluconate to sulfate.  In January 2007 he was diagnosed with 
coronary artery disease and arrhythmia.  

This evidence was not submitted at the time of the prior 
final denial of his claim, and is therefore new.  In 
addition, this evidence demonstrates that the Veteran is now 
diagnosed with a heart condition, other than VPCs as well as 
continuing to exhibit VPCs, with symptomatology similar to 
that manifested in 1950.  Hence, it is also material 

As new and material evidence has been submitted for the claim 
of entitlement to service connection for VPC; the claim is 
reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  


ORDER

New and material having been received, the claim to reopen 
the previously denied claim for entitlement to service 
connection for VPCs is reopened; to this extent only, the 
appeal is granted.  


REMAND

The Veteran seeks entitlement to service connection for a 
heart condition to include VPCs.  

In his March 2004 notice of disagreement, the Veteran stated 
that he was treated at the Sheppard Air Force Base hospital 
in November 1945, and that he was treated twice at the 
dispensary in Okinawa in 1946 while he was still on active 
service.  These records are not present in the claims file 
now before the Board.  Rather, the service treatment records 
now associated with the claims file consist essentially only 
of the Veteran's entrance and separation examinations, and 
his dental records.  There is an extract from sick reports 
that shows the Veteran was taken sick in June 1946, but not 
for what reason or where he was treated.  An attempt to 
obtain the reported hospital treatment records, and any other 
treatment records for the entire duration of the Veteran's 
service, from October 1945 to January 1947 must be made. 

The November SSA consultative examination indicates that the 
Veteran may be receiving SSA disability benefits for his 
heart condition.  SSA records must also be obtained.  See 38 
U.S.C.A. § 5103A; 38 C.F.R. § 3.152(c)(2); Hayes v. Brown, 9 
Vet. App. 67 (1996).  

Finally, VA examination should be accorded the Veteran to 
determine the nature, extent and etiology of his manifested 
heart condition.  See McClendon v. Nicholson, 20 Vet. App. 79 
(2006).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any additional service 
treatment records.  In particular, obtain 
any and all hospital and clinical records 
concerning the Veteran from the Sheppard 
Air Force Base hospital and any base or 
civilian hospital facility associated 
with where the Veteran was stationed in 
Okinawa.  Search for the entire time of 
the Veteran's enlistment from October 
1945 to January 1947.

Of note, the Veteran was assigned to, Co 
C 822nd Engineering Aviation Battalion 
and 827th Engineering Aviation Battalion.  
During assignment with Co C 822nd 
Engineering Aviation Battalion, an 
extract from sick reports lists him as 
having reported to sick call in June 
1946.

Take any and all actions necessary to 
reconstruct the record, as in fire-
related cases, including to request 
assistance from the service department if 
necessary.  Document negative responses 
and advise the Veteran,  so that he may 
attempt to obtain the records on his own.

2.  Determine if the Veteran is receiving 
SSA disability benefits and, if so, 
obtain the decision that found the 
Veteran to be disabled, and any 
supporting medical records.  

3.  Schedule the Veteran for an 
examination to determine the nature, 
extent, and etiology of his heart 
condition.  The entire claims file and a 
copy of this REMAND must be made 
available to the examiner prior to the 
examination.  The examiner must note in 
the examination report that the evidence 
in the claims file has been reviewed.  

After reviewing the file and examining 
the Veteran, the examiner should render 
an opinion as to whether any manifested 
heart pathology had its onset during 
active service or within any presumptive 
period or is at least as likely as not 
the result of the Veteran's active 
service or any incident therein, 
including aggravation of a congenital 
disease.  

The term "at least as likely as not" 
does not mean "within the realm of 
medical possibility."  Rather, it means 
that the weight of medical evidence both 
for and against a conclusion is so evenly 
divided that it is as medically sound to 
find in favor of that conclusion as it is 
to find against it.  

The examiner must give a complete 
rationale for any opinion provided.

4.  After the above development is 
completed, the AOJ should readjudicate 
the claim on the merits.  If the benefit 
sought is not granted, the Veteran and 
his representative should be furnished a 
supplemental statement of the case and 
afforded a reasonable opportunity to 
respond before the record is returned to 
the Board for further review.

The Veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  
However, the Board takes this opportunity to advise the 
Veteran that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of his 
claims.  His cooperation in VA's efforts to develop his 
claim, including reporting for any scheduled VA examination, 
is both critical and appreciated.  The Veteran is also 
advised that failure to report for any scheduled examination 
may result in the denial of a claim.  38 C.F.R. § 3.655.  

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).




______________________________________________
L.J. BAKKE-SHAW 
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs