Citation Nr: 0810157 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-06 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to reopen a final disallowed claim for service connection for congenital heart disease with septal defect. ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from September 1972 to September 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied a petition to reopen a final disallowed claim for service connection for congenital heart disease. In an October 2006 supplemental statement of the case, the RO reopened the claim and denied it on the merits. In February 2006, the veteran requested a hearing before the Board sitting at the RO. In April 2007, he cancelled the hearing that was scheduled for him. Therefore, the request for a hearing is considered withdrawn. FINDINGS OF FACT 1. In October 1981, the RO denied service connection for a heart disorder because the veteran's congenital ventricular septal defect existed prior to service and was not aggravated by service. The veteran did not express disagreement within one year and the decision became final. 2. In March 2001, the RO denied a petition to reopen a claim for service connection for congenital heart disease because while new evidence showed that the veteran was diagnosed with arteriosclerotic heart disease (ASHD) many years after service, it did not show that his pre-service congenital septum defect was aggravated by service. The veteran expressed timely disagreement in April 2001 but withdrew his appeal in writing in January 2002. 3. Lay and medical evidence received since the last final disallowance of the claim for service connection for a congenital heart disease with septal defect is new because it had not been previously considered by VA adjudicators. Although some medical evidence is relevant to the reason for previous denial, the new lay evidence is cumulative and the new medical evidence supports the previous reason for denial; therefore, the evidence does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW No new and material evidence has been received to reopen a final disallowed claim for service connection for congenital heart disease with septal defect. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in March 2005 which met these requirements. During the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen a previously denied claim, and must notify the claimant of the evidence and information that is necessary to establish entitlement to service connection. Here, the correspondence in March 2005 satisfied the above requirements. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran served as a U.S. Army personnel management specialist. He contends that his pre-service congenital ventricular septal defect was aggravated in service and was the first manifestation of arteriosclerotic heart disease. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a) (1); 38 C.F.R. § 3.307(a) (3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arteriosclerosis and endocarditis). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. § 3.304 (c). However, service connection may be granted for diseases (not defects) of congenital or developmental origin. See VAOPGCPREC 82-90 (Jul. 18, 1990). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (Jul. 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Private medical records from the Crump Hospital in Memphis, Tennessee showed that the veteran was referred by his primary care physician for evaluation of a heart murmur that had been identified three years earlier. In April 1970, an attending physician noted the veteran's reports of easy fatigability and shortness of breath at night or after walking five or six blocks. He reported that he was not hired for summer jobs because of the murmur and that he had experienced several syncopal episodes. He reported that he limited his participation in sports but not in other daily activity. The veteran's history was negative for any significant illnesses. On examination, the physician noted a grade IV of VI holosystolic murmur, best heard on the left lower sternal border. The remainder of the examination was normal. The veteran underwent a cardiac catheterization, and the physician subsequently diagnosed a small, high ventricular septal defect. The physician indicated that the veteran was scheduled for surgical repair of the defect one week later, but there are no records in the file that the surgery was actually performed. In March 1971, the veteran was evaluated for participation in an Arkansas rehabilitation training program. He noted the veteran's reports of heart palpations at night but that the veteran used no medication and was able to play basketball at a moderate level. The veteran reported fatigue with strenuous activity. A medical examiner noted that the veteran had a congenial ventricular septal defect that was permanent but correctable by surgery. He noted that the veteran's general health would probably be normal without surgery and that his work capacity in a moderately active job would be normal with or without surgery. A work evaluation report showed that the veteran was not accepted for training for motivational and academic reasons. In a June 1972 induction physical examination, a military physician noted the veteran's report that he had undergone a cardiac catheterization in 1969 to investigate symptoms of shortness of breath. The veteran reported that the procedure identified a heart murmur. On examination, the military physician noted that he heard no murmur and found the veteran's heart to be normal. The veteran was accepted into service. An undated medical record prepared at a receiving center at the veteran's first duty station noted the veteran's report of a pre-service diagnosis of heart murmur and that he experienced shortness of breath after running short distances. In September 1972, the veteran sought treatment for dizziness and fatigue. The examiner noted no acute symptoms but again noted the veteran's reports of a heart catheterization in 1969 and a 1972 recommendation from a private physician that the veteran was not suitable for military service. The examiner noted a low pitched systolic ejection type murmur and diagnosed a functional murmur and possible ventricular septic defect but doubtful arteriosclerotic heart disease (ASHD). The physician requested that administrators obtain records of pre-service treatment. However, as the records received by VA and discussed above were not included in the service file, it is not clear whether the records of pre-service treatment were received and reviewed by military medical providers. In November 1972, a partially legible record showed that the veteran reported transient chest pain, but the examiner noted "doubt c r" and returned the veteran to duty. Another entry the same month referred to the reissue of a limited duty profile. In February 1973, an examiner noted the veteran's report of fatigue when performing routine physical exercise and requested a renewal of his profile. A four-view X-ray series was obtained, but the stamped result is illegible. An electrocardiogram showed normal sinus rhythm with a borderline indication that the evaluator noted as within normal limits. The examiner noted a systolic murmur, grade I of VI, most likely an ejection type. He noted normal carotid pulses and that the veteran did not experience shortness of breath after three minutes of jogging. There is no further record of symptoms, examination, or treatment for shortness of breath or a diagnosis of any form of heart disease in service. In a June 1974 discharge physical examination, the physician noted the historical electrocardiogram indication but did not note any chronic heart disease or abnormalities. In an undated administrative note, veteran's supervisor indicated that the veteran planned to extend his enlistment. However, the veteran received an honorable discharge at the completion of his obligated active service in September 1974 and was transferred to the Army Reserve. In July 1978, the veteran was hospitalized at a VA facility in Illinois for treatment of active tuberculosis. A consulting physician noted the veteran's reports of periodic fever but no cough or shortness of breath. On examination, the consulting and attending physicians noted a grade II/VI systolic ejection murmur but no other cardiac abnormalities. A concurrent electrocardiogram was normal and no heart abnormalities were noted on chest X-rays. Neither physician diagnosed any chronic heart disease. In April 1980, the veteran was again hospitalized at a VA facility for pulmonary disease. On admission, an examiner noted a history of arteriosclerotic heart disease since 1969, and an electrocardiogram was evaluated as showing possible anterior wall ischemia and left ventricular hypertrophy. The attending physician noted the history of the systolic murmur. After examination and review of concurrent X-rays, the physician found no indication of heart disease. In March 1981, a VA examiner noted that the veteran sought a medical evaluation of his ability to work. The examiner noted the veteran's reports of occasional chest pain and shortness of breath on moderate exertion. The examiner did not discuss any cardiovascular symptoms, but he requested a cardiology consultation. The consulting cardiologist referred to earlier VA records but noted that the 1969 catheterization reports were not available. On examination and review of test results, the cardiologist noted a grade I/VI murmur. An electrocardiogram showed normal sinus rhythm but suggested right ventricular hypertrophy. There was no cardiomegaly or increased flow shown on X-ray. The cardiologist stated that he was unable to confirm a diagnosis of heart disease from his examination but that the soft murmur would be consistent with arteriosclerotic disease (ASHD) and that other data indicated the disease would be "small." He stated that any further analysis would require data from a catheterization. He further stated that the veteran could work at any job. In October 1981, the RO denied service connection for a heart condition because the veteran's congenital septal defect existed prior to service and was not aggravated by service. The veteran did not express disagreement within one year and the decision became final. 38 U.S.C.A. § 7105 (b) (1). In March 1982, a cardiologist examined the veteran and noted no physical findings of heart disease. In August 1982, a cardiologist noted that arteriosclerotic disease was doubtful but ordered an electrocardiogram to rule out the disease. The results of the test and immediate follow-up examination are not in the record. In September 1986, the veteran underwent a physical examination for a federal civil service position as a munitions handler. The duties included heavy lifting and carrying, pulling and pushing for two hours, walking for four hours, and standing for eight hours. The veteran reported no shortness of breath, chest pain, or heart trouble. The examiner noted no heart abnormalities. In October 1991, the veteran was hospitalized at a private medical facility following an acute inferior myocardial infarction. The attending physician noted that the veteran had an extremely strong family history of coronary heart disease and that he was a cigarette smoker. A catheterization showed blockages of the right and left coronary artery and a lesion of the large circumflex branch with diminished left ventricular function. The physician diagnosed arteriosclerotic heart disease and prescribed a conservative medical regimen. In December 1991, the attending physician noted that the veteran had returned to his sedentary occupation and an exercise tolerance test showed no evidence of ischemic changes. The veteran's conservative medical treatment was continued with no recommendation for additional surgery. In December 1998, the veteran was hospitalized at a VA medical facility for symptoms of a myocardial infarction. The veteran underwent cardiac catheterization and the insertion of a right coronary artery stent. In March 2001, the RO denied a petition to reopen a claim for service connection for congenital heart disease because new evidence received showed that the veteran was diagnosed with ASHD many years after service and that the new evidence did not show that his pre-service congenital septum defect was aggravated by service. The veteran expressed timely disagreement in April 2001 but withdrew his appeal in writing in January 2002. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In February 2003, the veteran submitted a petition to reopen his claim for service connection for heart disease. In correspondence in February 2003, August 2004, and October 2004, the veteran stated that he experienced heart related symptoms prior to service and that physicians had advised him to avoid strenuous exercise. The veteran further stated that stress and training in service without the use of medication aggravated his disorder. In August 2003, the veteran's spouse described her husband's current symptoms and their impact on his daily activities. In September 2004, a VA physician noted that the veteran had a pulmonary disease in service and that he had undergone a thoracotomy to remove diseased tissue. He also noted that the veteran had the onset of coronary disease in the past couple of years that was treated by angioplasty and a stent. He noted the veteran's reports in increasing dyspnea without cough or hemoptysis and that the veteran had stopped smoking. On examination, the physician noted a regular heart rhythm without murmurs. He stated that the recent dyspnea was more likely related to heart disease than to the residuals of the pulmonary disorder. In October 2004, the RO received additional private medical records of the veteran's pre-service treatment for a congenital ventricular septal defect. In February 2005, a VA physician noted a review of the claims folder and summarized the veteran's pre-service treatment and post-service treatment for heart related symptoms. He did not examine the veteran but noted a review of the September 2004 examination report. He noted that the veteran's heart murmur was identified prior to service and was diagnosed as a ventricular septal defect for which he did not undergo surgery and that did not appear to have caused problems over the years. He noted that the veteran developed arteriosclerotic heart disease in 1990. He was treated in 1990 and 1998 after myocardial infarctions and again in 2003 for chest pain. The physician stated that the ventricular septal defect was a different type of heart problem from arteriosclerotic heart disease and that the defect and the disease were not related. He further stated that he found no evidence that the ventricular septal defect was aggravated by service. Additional VA medical records in April 2005 and March 2006 address the veteran's current symptoms and their relationship of arteriosclerotic heart disease and the pulmonary disorder but are not relevant to the congenital ventricular septal defect. In an October 2006 supplemental statement of the case, the RO reopened the claim for service connection for the congenital septal defect because the February 2005 examination report was new and was material to aggravation of the defect by service and to a possible relationship to the veteran's current ASHD. The RO determined that the new and material evidence raised a reasonable possibility of substantiating the claim. As noted above, the RO reopened the claim and conducted an adjudication on the merits. The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The Board concludes that evidence received since the final disallowance of the claim for service connection for a congenital ventricular septal defect is new because the veteran's February 2003, August 2004, and October 2004 statements, additional pre-service private medical records from 1970, and the February 2005 medical opinion had not previously been considered. However, the Board concludes that the evidence is either cumulative or provides additional support to the reason for the previous denial and therefore does not raise a reasonable possibility of substantiating the claim. The veteran's claims for service connection were previously denied in October 1981 and in March 2001 because there was no evidence that the veteran's ventricular septal defect was aggravated by service or that the veteran's current ASHD was incurred in service or during the applicable presumptive period following service. Aggravation of a pre-existing disorder requires some increase in the severity of the disorder causally related to military service. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The newly submitted records of private medical records dated prior to service provided additional detail regarding the symptoms and diagnosis of the septal defect prior to service. Although the evidence provided greater detail of the status of the septal defect at the time, it is not relevant to whether the defect underwent a permanent increase in disability in service and therefore is not material. The evidence does not address ASHD. Likewise, new VA medical records post-dating the 2001 RO determination do not address the issue of aggravation of the septal defect in service and therefore are also not material. In February 2003, August 2004, and October 2004, the veteran stated that the intensity and stress of military training aggravated his heart disorder. These statements are cumulative of the statement of his contention in April 2000 that had been previously considered. Although the veteran is competent to describe his observable symptoms, a determination of increased severity of the underlying ventricular septal disorder requires medical expertise. The Board acknowledges that the veteran's contention is sincere, however, as a layperson, the veteran does not possess the necessary knowledge of medical principles, and his assertions, standing alone, are not probative as to the permanent increase in severity of his ventricular septal defect See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore his new statements are not material because they are cumulative and not competent; accordingly, they do not raise a reasonable possible of substantiating the reason for the previous denial. Finally, a VA examiner in August 2005 noted a review of the claims folder and stated that he found no evidence that the ventricular septal defect was aggravated by service. Although this medical evidence is material to the issue of aggravation of the pre-existing defect in service, the evidence supports the reason for the previous denial and therefore does not raise a reasonable possibility of substantiating the claim. As no new and material evidence has been received, the Board does not have jurisdiction and the claim for service connection for a congenital ventricular septal defect is not reopened. 38 U.S.C.A. § 7104 (West 2002); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Circ 1996); Butler v. Brown, 9 Vet. App. 167, 171(1996). ORDER The petition to reopen a final disallowed claim for service connection for a congenital ventricular septal defect is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs