Citation Nr: 0814003 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-40 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart disorder, to include as secondary to service-connected rheumatic fever. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability. ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from November 1951 to November 1955. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). FINDINGS OF FACT 1. An August 1999 Board decision denied the veteran's claim of entitlement to service connection for a heart disorder. 2. Evidence associated with the claims file since the August 1999 Board decision is not material and does not raise a reasonable possibility of substantiating the issue of entitlement to service connection for a heart disorder, to include as secondary to service-connected rheumatic fever. 3. Service connection is currently in effect for an anxiety disorder, rated as 50 percent disabling, and rheumatic fever, rated as 0 percent disabling. The veteran's combined disability rating is 50 percent. 4. The veteran is not precluded from securing or following substantially gainful employment as a result of his service-connected disabilities alone. CONCLUSIONS OF LAW 1. The evidence received since the August 1999 Board decision is not new and material, and therefore, the claim of entitlement to service connection for a heart disorder, to include as secondary to service-connected rheumatic fever, is not reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2007). 2. A total disability rating for compensation purposes based on individual unemployability (TDIU) is not warranted. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication, a letter dated in November 2003 satisfied the duty to notify provisions. Additional letters were also provided to the veteran in December 2005 and March 2006, after which the claims were readjudicated. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records, VA medical treatment records, and indicated private medical records have been obtained. VA examinations were provided to the veteran in connection with his claims. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Heart Disorder An unappealed Board decision in August 1999 denied the veteran's claim of entitlement to service connection for a heart disorder on the basis that there was no medical evidence of record that the veteran experienced a heart disorder during military service or within 1 year after separation from military service. The August 1999 decision also stated that there was no competent evidence of record that related the veteran's heart disorder to military service or to a service-connected disability, to include rheumatic fever. The relevant evidence of record at the time of the August 1999 Board decision consisted of the veteran's service medical records, service personnel records, numerous private medical records dated from 1968 to December 1998, numerous statements from the veteran and other lay persons, VA medical examination reports dated in April 1962, September 1995, and August 1996, and a transcript of a March 1999 hearing before the Board. The veteran did not file a notice of disagreement after the August 1999 Board decision. Therefore, the August 1999 Board decision is final based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1103 (2007). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Although the RO has repeatedly adjudicated this claim directly, the veteran's claim has never been formally reopened. Even if the claim had been reopened, any finding that the veteran submitted new and material evidence is not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. In July 2003, a claim to reopen the issue of entitlement to service connection for a heart disorder, to include as secondary to service-connected rheumatic fever, was received. Evidence of record received since the August 1999 Board decision includes numerous private medical records dated from 1968 to July 2007, VA medical examination reports dated in May 2001 and November 2003, and statements from the veteran dated in June 2004 and May 2006. Little of the evidence of record dated prior to January 1999 is new, as it was already associated with the record at the time of the August 1999 Board decision; this notably includes a great deal of private medical records that were re-submitted multiple times. While some of the evidence dated prior to January 1999 is new, it is redundant of information that was of record at the time of the August 1999 Board decision. All of the evidence of record dated in January 1999 or later is "new" in that it was not of record at the time of the August 1999 Board decision. However, none of the new evidence submitted since the August 1999 Board decision is material, as it does not have a reasonable possibility of substantiating the veteran's claim. As noted in the August 1999 Board decision, the evidence of record must show one of two different things in order for service connection to be awarded. First, evidence that the veteran's heart disorder began in-service or was manifested to a compensable degree within one year after separation from active service. Second, that the veteran's currently diagnosed heart disorder is related to military service or to a service-connected disability. In this case, none of the new evidence shows that the veteran's currently diagnosed heart disorder began during military service or within one year of separation from active service. As such, in order for it to have a reasonable possibility of substantiating the veteran's claim, the new evidence must show that his currently diagnosed heart disorder is related to military service or to a service-connected disability. There is no new medical evidence that discusses a direct link between the currently diagnosed heart disorder and military service. A June 2007 letter from a private physician stated that the veteran's heart disorder "is related to the rheumatic fever he contracted while in the Armed Forces." While this is evidence of a nexus between the veteran's currently diagnosed heart disorder and a service-connected disability, it does not provide a reasonable possibility of substantiating the veteran's claim as it provides no basis whatsoever for its conclusion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). However, the September 1995, August 1996, and November 2003 VA heart examination reports, provide medical opinions that the veteran's heart disorder was not related his service-connected rheumatic fever. All of these examination reports based their conclusions on the lack of specific physical findings that would substantiate such an etiological finding. The only other 'new' medical evidence that comments on any nexus that may exist between the veteran's heart disorder and his service-connected rheumatic fever are private medical reports dated between January 1999 and April 1999, which stated that the veteran had "Rheumatic Fever [with] heart by [history]." Nevertheless, the reports specifically state that this diagnosis is based on the veteran's reported history. Accordingly, they are not competent to show that the veteran's heart disorder is related to his service-connected rheumatic fever and therefore, they are not material for purposes of reopening in that there is no reasonable possibility that it would change the outcome. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). This finding is substantiated by the reports themselves which make no other reference to the a nexus between the veteran's heart disorder and his service-connected rheumatic fevers, including specific diagnoses of heart disorders that do not mention etiology of any kind. Id. Accordingly, none of the 'new' evidence provides a competent medical opinion, substantiated by the evidence of record and supported by a detailed basis, that the veteran's heart disorder is related to military service or to a service-connected disability. As such, the 'new' evidence does not have a reasonable possibility of substantiating the veteran's claim. Since the additional evidence received since the August 1999 Board decision is not material and does not raise a reasonable possibility of substantiating the veteran's claim, it does not constitute new and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for a heart disorder, to include as secondary to service-connected rheumatic fever. As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), an extraschedular rating is considered where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Service connection is currently in effect for an anxiety disorder, rated as 50 percent disabling, and rheumatic fever, rated as 0 percent disabling. The veteran's combined disability rating is 50 percent. Therefore, the percentage criteria of 38 C.F.R. § 4.16(a) are not met. Moreover, the Board finds no basis for an extraschedular rating of TDIU. The medical evidence of record shows that the veteran is unemployable. At least 16 letters from private physicians dated between December 2004 and July 2007 stated that the veteran was totally disabled. However, the medical evidence of record shows that the veteran is not unemployable due to his service-connected disabilities alone, without regard to any nonservice-connected disabilities. The December 2004 to July 2007 letters from private physicians stated that the veteran was disabled due to his disabilities as a whole. These disabilities included coronary heart disease, post-coronary artery bypass graft status and left femoral/popliteal bypass graft status, hypertension, dyslipidemia, type II diabetes mellitus, anxiety, depression, peripheral vascular disease, and pituitary macroadenoma. Of these, anxiety is the only disability for which service-connection has been granted. Furthermore, a June 2004 letter from a private physician specifically stated that the veteran was "unable to work full time, secondary to the extent of his vascular disease." As such, the medical evidence of record does not show that the veteran is precluded from securing or following substantially gainful employment as a result of his service-connected disabilities alone, without regard to any nonservice-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to TDIU. The veteran does not meet the percentage criteria under 38 C.F.R. § 4.16(a) and the evidence does not otherwise demonstrate an inability to secure or follow a substantially gainful occupation due to his service-connected anxiety disorder and rheumatic fever. Accordingly, TDIU is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been submitted, the claim to reopen the issue of entitlement to service connection for a heart disorder, to include as secondary to service-connected rheumatic fever, is denied. A total disability rating for compensation purposes based on individual unemployability is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs