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