Citation Nr: 0810902 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-34 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received which is sufficient to reopen a previously denied claim of entitlement to service connection for heart disease. 2. Whether new and material evidence has been received which is sufficient to reopen a previously denied claim of entitlement to service connection for systolic ejection murmur. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from December 1964 to January 1966 and from April 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Procedural history In September 1970 the RO denied the veteran's claim of entitlement to service connection for heart disease. Additionally, the RO denied the veteran's claim of entitlement to service connection for a systolic ejection murmur. A letter was sent on October 1, 1970 informing the veteran of these decisions and of his appeal rights. He did not initiate an appeal. In March 2004, the veteran requested the RO reopen his claims of entitlement to service connection for heart disease and systolic ejection murmur. In a December 2004 rating decision, the RO determined that new and material evidence had not been submitted and the veteran's previously-denied claims would not be reopened. The veteran timely perfected an appeal as to these issues. In a September 2005 statement of the case (SOC), a Decision Review Officer (DRO) reopened both issues currently on appeal. The DRO denied the veteran's claims on the merits. The veteran testified at a personal hearing held by means of teleconferencing equipment which was chaired by the undersigned Veterans Law Judge (VLJ) in March 2007. A transcript of the hearing has been associated with the veteran's VA claims folder. In a July 2007 decision, the Board determined that new and material evidence had not been received to reopen the veteran's claims of service connection for heart disease or systolic ejection murmur. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in November 2007, the veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In a November 2007 order, the Court vacated the Board's July 2007 decision and remanded the matter for readjudication in light of the November 2007 joint motion. Pursuant to the Court's remand, in a December 2007 letter, the Board provided the veteran and his representative the opportunity to submit additional evidence and argument in support of the appeal. In response to the Board's letter, the veteran's representative submitted an additional argument in March 2008. No additional evidence was submitted. FINDINGS OF FACT 1. The evidence associated with the claims folder subsequent to the September 1970 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for heart disease. 2. The evidence associated with the claims folder subsequent to the September 1970 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for systolic ejection murmur. CONCLUSIONS OF LAW 1. The RO's September 1970 rating decision, wherein service connection for heart disease and systolic ejection murmur were denied, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. The evidence received since the September 1970 rating decision, with regard to the claim of entitlement to service connection for heart disease, is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The evidence received since the September 1970 rating decision, with regard to the claim of entitlement to service connection for systolic ejection murmur, is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for heart disease and systolic ejection murmur. Implicit in his presentation is the contention that he has submitted new and material evidence that is sufficient to reopen these two claims, which were finally denied by the RO in September 1970. As noted in the Introduction, this case was remanded by the Court in November 2007 following a Joint Motion for Remand. The Court Order, or more properly the Joint Motion, will be addressed below. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. § 5103, 5103A (West 2002). The Court remand - Kent v. Nicholson notice The Board's July 2007 decision contained an extensive discussion concerning VCAA compliance [see the July 12, 2007 Board decision, pages 4-9]. The November 2007 Joint Motion for Remand, as adopted by the Court, did not mention any specific VCAA deficiencies [either as to adequacy of VCAA notice furnished by the RO or as to the Board's discussion of the adequacy of such notice in its July 2006 decision.] The Board is aware of the Court's often stated interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ["Court will [not] review BVA decisions in a piecemeal fashion"]; Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ["[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"]. Thus, if there had been specific VCAA deficiencies, such would have been raised at the Court. Notwithstanding the absence in the Joint Motion of any identified VCAA notice error, or failure by the Board to adequately address the sufficiency of such notice, the November 2007 joint remand stated that "[u]pon remand the Board should ensure that compliance with Kent [v. Nicholson, 20 Vet. App. 1 (2006)] was accomplished in Appellant's case." See November 2007 joint remand at 4. The record indicates that the Board addressed the adequacy of Kent notice on pages 5-6 of its July 2007 decision. In that decision, the Board found that the VA had properly notified the veteran of the evidence and information that is necessary to reopen his claims. The Board also found that veteran was properly informed of what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. Specifically, a July 29, 2004 VCAA letter [incorrectly identified as an October 25, 2004 VCAA letter in the Board's July 2007 decision] informed the veteran that his previous claims for entitlement to service connection for heart disease and systolic ejection murmur were denied and that those decisions were final. He was informed that in order for VA to reconsider these issues, he must submit "new and material evidence." Specifically, he was advised that new evidence consists of evidence in existence that has been "submitted to the VA for the first time." Material evidence was explained as "additional existing evidence" that pertains "to the reason your claim was previously denied." The July 2004 VCAA letter further informed the veteran that "new and material evidence must raise a reasonable possibility of substantiating your claim. The evidence cannot simply be repetitive or cumulative of the evidence we had when we previously denied your claim." The Board notes that this language complies with the Court's holding in Kent v. Nicholson, supra. See also 38 C.F.R. § 3.156 (2007). The Board further notes that the veteran was provided with specific notice as to why his claim was denied and what evidence would be material to his claim in the last final denial of record. Specifically, the RO informed the veteran: "Your claim was previously denied because no heart murmur was found and there was no clinical evidence of cardiovascular disease. Therefore, the evidence you submit must relate to this fact." As such, the veteran was advised of the bases for the previous denial and what evidence would be necessary to reopen the claim. The July 2004 VCAA letter thus sufficiently satisfies the requirements of Kent. Given the Court's injunction against piecemeal litigation, the Board is confident that other than the reference to Kent in the Joint Motion, the notification portions of the VCAA are not an issue in this case. That is, the Board believes that the law of the case is that there are no VCAA notification defects which need be addressed by the Board. Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) [under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim]. Subsequent to the Court's Order, on December 4, 2007, the Board wrote to the veteran, asking if there was any additional evidence and argument to submit. The veteran did not respond to the December 4, 2007 correspondence. The veteran's representative filed a formal brief dated March 11, 2008. The veteran's representative did not identify any VCAA notification problems in that document. It is abundantly clear from pleadings to the Court, the Joint Motion itself, and statements made to the Board that the veteran and his representative are fully aware of what is required under the VCAA. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]; see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) [VA has no further duty to notify a veteran of the evidence needed to substantiate his claim, or to assist him in obtaining evidence, in that no reasonable possibility exists that any further assistance would aid him in substantiating his claim]. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, the VCAA appears to have left intact the requirement that an appellant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). There is nothing in the Joint Motion which addresses the matter of VA's duty to assist. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. As was noted in the Introduction, the veteran and his representative appeared before the undersigned VLJ and presented personal testimony in support of his claim by means of video teleconferencing equipment in March 2007. Accordingly, the Board will proceed to a decision. Pertinent law and regulations Service connection - in general A disability may be service connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). For certain chronic disorders, including heart disease, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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). Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2007)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the veteran's claim to reopen was initiated in March 2004, the claim will be adjudicated by applying the revised section 3.156. The revised regulation provides that new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, related to an unsubstantiated 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. See 38 C.F.R. § 3.156(a) (2007). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). The Court remand In the November 2007 Joint Motion, the parties asserted that "the Board properly concluded that the revised version of 38 C.F.R. § 3.156(a) was applicable to Appellant's case. However, in the Findings of Fact and the analysis of Appellant's claims, the Board specifically used language from the old version of section 3.156(a)." See the Joint Motion for Remand, page 3. The Joint Motion further stated that the Board should "clarify this matter and apply the appropriate version of 38 C.F.R. § 3.156(a) in order to determine whether Appellant submitted new and material evidence to reopen his claims for service connection." Id at 3. As illustrated above, only the revised version of 38 C.F.R. § 3.156 is for application in the veteran's case. During the Board's July 2007 decision, language from the former version of § 3.156 was used. Specifically, the Board stated that the evidence the veteran submitted "was not so significant that it must be considered in order to decide fairly the merits of the claim." See July 2007 Board decision, pages 14, 16. Under the former version of § 3.156, material evidence was defined as "evidence not previously submitted to agency decision-makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled is so significant that it must be considered in order to decide fairly the merits of the claim." See 38 C.F.R. § 3.156(a) (2001). The current version of § 3.156 is set forth in the law and regulations section above. Under the new standard, the evidence, "by itself or when considered with previous evidence of record, must raise a reasonable possibility of substantiating the claim", while the former standard required evidence that "by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." The regulatory change was brought upon by the passage of the VCAA and was an attempt to help the claimant "understand the nature of evidence that will reopen a claim." See Fed. Reg. 45,620, 45,628-45,629 (Aug. 29, 2001). The Board will apply the revised standard to the veteran's claims below. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. 1. Whether new and material evidence has been received which is sufficient to reopen a previously denied claim of entitlement to service connection for heart disease. Analysis The Board initially observes that the Joint Motion did not indicate any disagreement with the Board's previous recitation of the facts underlying this claim. In the September 1970 rating decision, the RO stated that the evidence of record, including the veteran's service medical records, did not demonstrate a current cardiovascular condition. Accordingly, the RO denied the veteran's claim based on the lack of evidence demonstrating a current disability [Hickson element 1], the lack of evidence demonstrating an in-service disease or injury [Hickson element 2] and, by implication, the lack of a medical nexus [Hickson element 3]. The veteran was notified of the September 1970 decision and of his appeal rights by letter from the RO dated October 1, 1970. He did not appeal. The September 1970 rating decision which denied the veteran's claim of entitlement to service connection for heart disease is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2007). As explained above, the veteran's claim for service connection for heart disease may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received (i.e., after September 1970) evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (2007). [This approach is congruent with the directions of the Joint Motion and the current version of 38 C.F.R. § 3.156, discussed above.] The evidence associated with the veteran's claims file since September 1970, as it pertains to the veteran's claim of service connection for heart disease, includes private and VA treatment records that document a July 1998 myocardial infarction and subsequent coronary stenting. Also of record are VA outpatient treatment records that describe subsequent treatment for the veteran's heart condition. The VA medical treatment records, along with private medical treatment records provide a diagnosis of coronary heart disease and hypertensive heart disease. This evidence is both new and material since it was not before the RO during the September 1970 decision and it establishes a previously unsubstantiated element of the veteran's claim, namely, the existence of a current disability. As noted previously, there must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans, supra. With respect to the previously unestablished Hickson elements (2) and (3), the veteran has not submitted any new evidence establishing that heart disease developed during service or within one year thereafter. Additionally, the record is devoid of any competent medical evidence establishing a relationship between the veteran's military service and his current heart disease. As such, these elements remain lacking and the veteran's claim may not be reopened. The Board notes that the above-mentioned July 1998 hospital record (28 years after service), which is the initial documentation of heart disease, states that the veteran had "no previous cardiac history who suddenly complained of substernal pressure-like chest pain". This medical evidence supports a conclusion that the veteran's heart disease did not occur in service or within the one year presumptive period thereafter. This hospital record, although new and material evidence as to the element of current disability, cannot be considered to be new and material as to the other two elements. See Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to a claimant is not new and material]. The record since 1970 also includes the veteran's repeated contentions to the effect that he had heart disease in service. Such contention was contained in his initial claim for VA benefits which was filed in June 1970, and it was considered and rejected by the RO at that time in light of the pertinently negative service medical records. The veteran's repeated contentions are therefore not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). There has been added to the record no new evidence as to the element of in-service disease or injury, and the claim may not be reopened on that basis alone. See Evans supra [there must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim]. Furthermore, there has been added to the record no medical evidence of a nexus between the veteran's military service injury and the current cardiovascular condition. To the extent that the veteran has once again opined that there is a connection between his military service and his heart condition, such is duplicative of his contention in 1970. Moreover, it is now well established that lay persons without medical training, such as the veteran, are not qualified to render medical opinions regarding the etiology of disorders and disabilities. In Moray v. Brown, 5 Vet. App. 211, 214 (1993), the Court specifically stated that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." As mentioned above, the Court has specifically held that there must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans, supra. In this case, there is still no competent medical evidence that the veteran developed a heart condition during military service or within one year thereafter. Nor is there medical evidence establishing that his current heart condition is related to his military service. [Hickson elements (2) and (3).] The evidence which has been received since 1970 therefore does not raise the reasonable possibility of substantiating the veteran's claim. See 38 C.F.R. § 3.156 (2007). The claim accordingly cannot be reopened, and the benefits ought on appeal remains denied. 2. Whether new and material evidence has been received which is sufficient to reopen a previously-denied claim of entitlement to service connection for a systolic ejection murmur. Analysis The Board's analysis will mirror that employed in deciding the first issue above. Again, the Joint Motion did not disagree with the Board's previous description of the facts. In the September 1970 decision, the RO stated that the veteran's service medical records established that a heart murmur had been identified during the veteran's military separation physical examination in May 1970. The RO further found that a heart murmur was not identified during the veteran's August 1970 VA examination. Accordingly, the RO denied the veteran's claim based on the lack of evidence demonstrating a current disability [Hickson element 1], and, by implication, the lack of a medical nexus [Hickson element 3]. The veteran was notified of the September 1970 decision and of his appeal rights by letter from the RO dated October 1, 1970. He did not appeal. The September 1970 rating decision which denied the veteran's claim of entitlement to service connection for a systolic ejection murmur is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2007). The evidence associated with the veteran's claims folder since the September 1970 decision includes private medical records and VA medical records. During a physical examination conducted in July 2004, the examining physician located a grade 2/6 systolic murmur. A subsequent echocardiogram identified mild tricuspid regurgitation. This evidence is both new and material, insofar as it was not previously before the RO and it substantiates a previously unsubstantiated fact, the presence of the claimed heart murmur. [As in the Board's July 2007 decision, for purposes of this decision the Board will assume that a murmur in fact constitutes a disability rather than a mere incidental finding without medical significance.] With respect to the previously unestablished Hickson (3), there has been added to the record no evidence as to a relationship between the veteran's military service and the recently identified heart murmur. As such, the claim may not be reopened. See Evans, supra. As discussed above, the veteran's contentions that there is a relationship between this hear murmur and his military service are not probative and cannot serve to reopen the claim. See Moray v. Brown and Routen v. Brown, both supra. In this case, there is still no competent medical evidence that the heart murmur identified in July 2004 is related to the heart murmur identified in the May 1970 separation examination (Hickson element 3). Consequently, the evidence associated with the veteran's claims file since September 1970, with regard to systolic heart murmur does not raise the reasonable possibility of substantiating the veteran's claim of entitlement to service connection for a systolic ejection murmur. See 38 C.F.R. § 3.156 (2007). The claim accordingly is not reopened, and the benefits sought on appeal remains denied.. As noted above, VA's duty to assist does not attach until a claim is reopened. Thus, even though elements (1) and (2) are now arguably met, there is no duty on the part of VA to obtain a medical nexus opinion. Cf. Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. (CONTINUED ON NEXT PAGE) ORDER New and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for heart disease was not received. The benefit sought on appeal remains denied. New and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for a systolic ejection murmur was not received. The benefit sought on appeal remains denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs