Citation Nr: 0809832 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-40 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for pericarditis complicated by calcium deposits. 2. Entitlement to service connection for claimed pericarditis complicated by calcium deposits. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from December 1950 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the RO. The claim of service connection for pericarditis complicated by calcium deposits was the subject of a previous RO decision in August 1975. The Board has a legal duty to address the "new and material evidence" requirement under 38 C.F.R. § 3.156(a) regardless of the actions of the RO. If the Board finds that new and material evidence has been submitted, it is bound by a statutory mandate to consider the merits of the case. Barnett v. Brown, 8 Vet.App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The now reopened claim of service connection for pericarditis complicated by calcium deposits is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence presented since an August 1975 decision of the RO is more than cumulative in nature and does raise a reasonable possibility of substantiating the veteran's claim. CONCLUSION OF LAW New and material evidence has been submitted to reopen the claim of service connection for pericarditis complicated by calcium deposits. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. This change in the law is applicable to all claims filed on or after the date of enactment of VCAA, or filed before the date of enactment and not yet final as of that date. Given that the action taken hereinbelow is favorable to the veteran, no further assistance in developing the facts pertinent to this limited matter is required at this time. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the veteran's claim was received subsequent to August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." In this case, the veteran's claim of service connection for pericarditis complicated by calcium deposits was denied in a decision of the RO in August 1975. The veteran applied to reopen the claim in February 2004. In a July 2004 rating decision, the RO determined that the veteran had not submitted new and material evidence showing the claimed pericarditis complicated by calcium deposits was incurred in or aggravated by service. However, since the August 1975 decision is final under 38 U.S.C.A. § 7105(c), the Board must first ascertain whether new and material evidence has been received to reopen the claim. Since that decision, the veteran has submitted VA treatment records dated January 1978 to May 2004, replete with reference to treatment for pericarditis. In a December 2003 VA cardiology treatment record, the examiner indicated he had treated the veteran for the calcific pericarditis since the early 1980's. The examiner opined that the calcific constrictive pericarditis was probably secondary to the acute tuberculous pericarditis suffered by the veteran during his service in Korea in 1952. The examiner reported the veteran was transferred back to the US and was subsequently hospitalized for 4 months. After his release from the hospital, the veteran was discharged from active service due to his medical condition. Also submitted were various statements from the veteran recounting his treatment for the tuberculosis and subsequent pericarditis. This additional evidence of record is new and raises a reasonable possibility of substantiating the veteran's claim, in the Board's opinion. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claim of service connection for pericarditis complicated by calcium deposits. ORDER As new and material evidence has been submitted to reopen the claim of service connection for pericarditis complicated by calcium deposits, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND Having reopened the claim of service connection for pericarditis complicated by calcium deposits, the Board finds that additional development is necessary with respect to that claim. As noted above, in a December 2003 VA cardiology treatment record, the examiner opined that the calcific constrictive pericarditis was probably secondary to the acute tuberculous pericarditis suffered by the veteran during his service in Korea in 1952. It is pertinent to note in this regard that, during service, he was shown to have been diagnosed with an upper respiratory infection in February 1951. To date; however, the RO has not afforded the veteran a VA examination, with an opinion as to the etiology of his claimed disorder. Such an opinion is "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, indication the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. The Court further held that types of evidence that "indicate" a current disability may be associated with service include medical evidence that suggest a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Given the veteran's in-service treatment for an "upper respiratory infection" and the subsequent post service medical treatment records, including the December 2003 VA cardiology treatment record, the Board finds that a VA examination is "necessary" under 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran in order to have him provide information referable to all treatment received for the claimed pericarditis complicated by calcium deposits since service. Based on his response, the RO should undertake all indicated action to obtain copies of all clinical records from all previously unidentified treatment sources. The veteran should also be informed that he can submit evidence to support his claim. 2. The veteran must be afforded a VA examination to determine the nature, extent and likely etiology of the claimed pericarditis complicated by calcium deposits. The veteran's claims file must be made available to the examiner for review in conjunction with the evaluation. All studies deemed necessary should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner must opine as to whether the veteran has a current disability manifested by pericarditis complicated by calcium deposits that at least as likely as not (e.g., a 50 percent or greater likelihood) had its clinical onset or is due any event or incident during his period of active service. A complete rationale must be given for all opinions and conclusions expressed in a typewritten report. 3. After completion of the above development, the veteran's claim of service connection for pericarditis complicated by calcium deposits should be readjudicated. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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. 2007). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs