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