Citation Nr: 0810087 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-06 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for heart disease, to include coronary artery disease and if so, whether entitlement to service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty from May 1949 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2005, the veteran testified at a hearing before a VA decision review officer. A motion to advance this case on the Board's docket was granted by the Board on March 11, 2008, for good cause shown. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). The issue of service connection for heart disease 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. An October 2001 rating decision denied service connection for heart disease. The veteran did not perfect an appeal of the October 2001 decision. 2. The evidence received since the October 2001 rating decision is neither cumulative nor redundant of the evidence of record at the time of the prior final denial and raises a reasonable probability of substantiating the claim for service connection for heart disease. CONCLUSIONS OF LAW 1. The October 2001 rating decision that denied the veteran's claim to reopen for service connection for heart disease is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for heart disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS By history, the RO previously denied service connection for heart disease in November 1976, August 1997 and October 2001 rating decisions. The RO based these denials on a finding that a heart condition was not incurred during service and did not manifest to a compensable degree within one year of service. The evidence of record at the time of the October 2001 rating decision included records from Doctor's Hospital Foundation, Inc. dated in 1975; VA hospital records dated in June 1976; VA hospital and outpatient medical records dated from 1985 to 1997; and written statements submitted by or on behalf of the veteran. By letter dated in October 2001, the RO notified the veteran of the rating decision and his appellate rights with respect to that decision, but the veteran did not appeal the decision to the Board. The October 2001 rating decision is therefore final. 38 U.S.C.A. § 7105 (West 1991);38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). In July 2002, the veteran sought to reopen the claim of entitlement to service connection for a heart condition. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the evidence previously 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) (2007). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final denial of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, 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 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Most of the veteran's service medical records are missing and appear to have been destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri in July 1973. In May 2006, the RO determined that all efforts to obtain the records had been exhausted and that further attempts to obtain them would be futile. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The evidence submitted since the prior final denial of service connection includes partial service medical records dated from 1956 to 1957; VA outpatient medical records dated in 2002; a report of a VA cardiology consultation performed in December 2002; private medical records dated from 2002 to 2006; a May 2004 statement from a private cardiologist, C.F.S., M.D.; a transcript of a hearing conducted by a VA decision review officer in May 2005; and written statements submitted by or on behalf of the veteran. Service medical records dated in 1956 and 1957 do not show any treatment of a heart condition. The VA and private medical records submitted since the prior denial reflect current diagnoses of coronary artery disease. In a May 2004 statement, Dr. C.F.S. opined that the veteran's current problems may be related to service. He stated that the veteran has a known murmur which was apparently present when [the veteran] was in the service. Dr. C.F.S. opined that there is a "very real probability" that the veteran's underlying valvular problems, initially noted during a period of time in the service with a description of a murmur, may have well played a role in his predisposition to atrial arrhythmias. He stated, "Consequently, I feel that [the veteran's] current problems (primarily atrial arrhythmias) may well be related to his abnormalities noted at the time of military service." The newly submitted evidence includes a September 2002 lay statement from the veteran's brother, A.L. Therein, A.L. stated that the veteran was hospitalized in Massachusetts in November 1949 after passing out. A.L. further stated that the veteran was hospitalized during his service in England, reportedly because of dizziness. The veteran testified at a hearing before a VA decision review officer in May 2005. The veteran testified that he visited sick call seven or eight times while stationed at Fort Devons, Massachusetts in 1949. The veteran testified that he was put on light duty and then "no duty" and was treated at the VA hospital in Boston. The veteran also stated that he was hospitalized while stationed in England. The Board finds that the evidence received since the prior final denial of service connection for a heart condition is both new and material. This evidence is new because it was not previously submitted to agency decisionmakers and is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. This evidence is also material because, by itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim for service connection for a heart condition. In addition, it raises a reasonable possibility of substantiating that claim. The hearing testimony and the lay statements indicate that the veteran had medical treatment after experiencing dizziness and fainting during service, and in May 2004 Dr. C.F.S. opined that the veteran's current problems may be related to service. Having determined that new and material evidence has been received, the claim of entitlement to service connection for heart disease is reopened and addressed further below in the remand section. A discussion addressing whether the mandates of the Veterans Claims Assistance Act of 2000 (VCAA) have been complied with is not warranted. To the extent necessary, VA has fulfilled its duty to notify and to assist the veteran in the development of his claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). In light of the determination reached above, no prejudice will result to the veteran by the Board's reopening of his service connection claim. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). ORDER New and material evidence having been received, the claim of entitlement to service connection for heart disease is reopened. To that extent only, the appeal is allowed. REMAND Under 38 U.S.C.A. § 5103A, VA's duty to assist includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. Under 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (B) Establishes that the veteran suffered an event, injury or disease in service; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. A VA examination is necessary before this claim can be decided. The veteran asserts that a heart condition was incurred during service. As discussed previously, the available service medical records are limited. However, the veteran has provided competent testimony indicating that he reported to sick call and was hospitalized during service. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (A veteran is competent to report about factual matters of which he has first-hand knowledge.). In an August 1976 lay statement, the veteran's brother, A.L., stated that he was present when the veteran "blacked out" on several occasions during service. A September 2002 statement from A.L. noted that the veteran sought medical treatment after having dizziness. A report of a June 1976 VA examination reflects that the veteran reported a history of syncopal episodes "in his youth" and reported that he was told as an adolescent that he had a heart murmur. Additionally, in May 2004 Dr. C.F.S. opined that the veteran's current problems may be related to service. Based on the evidence described above, the Board finds that a VA examination is necessary to determine whether a current heart condition was incurred in or aggravated by service, or is in any way related to service. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA cardiovascular examination to ascertain the etiology of his current heart disorder(s). The claims file should be made available to the examiner prior to the examination, and the examiner should indicate in the examination report that the claims file was reviewed. The examiner is asked to identify the cardiac disorders present and to answer the following questions: a. Did any diagnosed heart disorder exist prior to the veteran's military service? b. If a cardiac disorder pre-existed service, did the disorder increase in severity beyond its natural progression during the veteran's military service? If the disorder did not increased in severity during service, the examiner should state so. c. If a cardiac disorder did not pre- exist service, is it at least as likely as not (50 percent or more probability) that any diagnosed cardiac disorder had its onset in service, manifested to a compensable degree within a year after service, or is in any way related to the veteran's military service or any incident therein, including the veteran's claimed dizziness and fainting during service? For any conclusion reached, the examiner should provide a detailed rationale. 2. Following completion of the above actions, the RO/AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If necessary, any additional development should be accomplished, or any additional VCAA notice should be issued to the veteran and his representative. 3. Thereafter, readjudicate the claim on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, send the veteran and his representative a supplemental statement of the case and afford them an applicable opportunity to respond. The case should then be returned to the Board, if in order. The appellant 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs