Citation Nr: 1119530 Decision Date: 05/20/11 Archive Date: 05/27/11 DOCKET NO. 07-32 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation, to include as secondary to service-connected diabetes mellitus . REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A claim for service connection for heart disease and hypertension was denied by the RO in November 2002. Although the RO apparently reopened this claim in December 2006, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The issue of service connection for hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation, including as secondary to service-connected diabetes mellitus, 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. In November 2002, the RO denied the Veteran's claim for service connection for heart disease, hypertension, and vascular disease of the lower extremities. The Veteran did not perfect a timely appeal. 2. Evidence relevant to the Veteran's claim received since the November 2002 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim; is not cumulative or redundant of the evidence previously considered and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2002 RO decision denying the claim for service connection for heart disease, hypertension, and vascular disease of the lower extremities is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). 2. The evidence relevant to the claim for service connection received since the last final decision is new and material; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. 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, 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The Veteran was initially denied service connection for heart disease, hypertension, and vascular disease of the lower extremities in November 2002. The basis of the denial was that the evidence did not show that heart disease, hypertension, or vascular disease of the lower extremities was related to service-connected diabetes mellitus. After appropriate notice of this decision and of his appellate rights, the Veteran did not file a timely appeal and the decision therefore became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim to reopen in March 2006. Following a careful review of the evidence of record, the Board finds that evidence has been submitted following the RO's final decision in November 2002 that is sufficient to reopen the Veteran's claim for service connection as it is "new" within the meaning of 38 C.F.R. § 3.156. This evidence includes letters from the Veteran's private physicians addressing a relationship between the claimed heart conditions and his service-connected diabetes. In a letter dated April 2006, Dr. B.K.W. stated that the Veteran had significant cardiac issues and found after reviewing the Veteran's medical records and discussing his case with his cardiologist that the Veteran's disease was secondary to his diabetes. In a March 2006 letter, Dr. D.A.B. opined that the Veteran's hypertensive heart disease could be related to his diabetes. In September 2006, Dr. B.K.W. stated in another letter that the link between diabetes and cardiac disease is incredibly well understood and well known. Finally, in a letter dated July 2007, Dr. S.C.H. stated that diabetes mellitus is a known risk factor for the development of atherosclerotic disease and a very likely contributor in the Veteran's case. In addition, Dr. S.C.H. also stated that he believed that the Veteran's diabetic condition aggravated his chronic atrial fibrillation. The Board further finds that this evidence is material as it raises a reasonable possibility of substantiating the claim since it pertains to the nexus between the claimed heart disease and service-connected diabetes mellitus. As new and material evidence has been presented, the claim is reopened. Notice and Assistance The duty to notify and assist has been met to the extent necessary to reopen the claim for hypertension. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Thus, there is no prejudice to the Veteran in deciding his claim at this time. See Kent v. Nicholson, 20 Vet. App. 1 (2006); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER New and material evidence having been received, the claim for service connection for hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation is reopened; the appeal is granted to this extent only. REMAND Having reopened the claim, the Board finds that additional development is required prior to readjudication. In particular, a medical opinion is necessary in this case. In a September 2007 rating decision, the RO granted service connection for atherosclerotic coronary artery disease (CAD). The remaining claimed diseases associated with the heart are hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation. As detailed above, the record includes letters from private physicians addressing a relationship between the Veteran's claimed heart conditions and his service-connected diabetes, in terms of both causation and aggravation. The record also includes the report of a December 2006 VA examination during which the Veteran was noted to have a history of congestive heart disease and hypertensive heart disease, the dates of onset of these diseases were unknown, and was diagnosed as having atrial fibrillation. The examiner opined that the Veteran's atrial fibrillation was secondary to his hypertension and congestive heart failure. The examiner also stated that "this is not due to type 2 diabetes mellitus." In a July 2007 addendum, the examiner stated that the Veteran suffered from hypertension, history of congestive heart failure, and atrial fibrillation. The examiner found that the Veteran's hypertension predated the onset of his diabetes mellitus and opined that hypertension and congestive heart failure alone were more likely than not to be the etiology of the Veteran's atrial fibrillation and the arteriosclerotic vascular disease was at least as likely as not due to his multiple risk factors, not the least of which is his service-connected diabetes mellitus. That opinion did not address whether the service-connected diabetes mellitus aggravated any of the Veteran's heart problems. As noted, the RO granted service connection for CAD in a September 2007 rating decision. The report of a November 2007 VA examination for diabetes mellitus dated the onset of diabetes mellitus to 1998; the onset of congestive heart failure was 1999, and the onset of hypertension was 1980. The examiner stated that the Veteran's congestive heart failure was associated with his CAD, but also commented that the Veteran's chest x-ray and examination did not show any evidence of congestive heart failure decompensation. The Veteran was also diagnosed as having hypertension that was not well controlled and the examiner stated that the literature did not indicate that hypertension was caused by diabetes mellitus. The Veteran's hypertension did affect his congestive heart failure and arrhythmia. The Board finds that a medical opinion is needed in this case in order to determine whether the Veteran's service-connected diabetes mellitus as well as his now-service-connected CAD caused the Veteran's hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation. The opinions provided by the VA examiners and the private physicians were not supported by adequate rationale such that the Board could consider and weigh it against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In addition, opinions provided in the December 2006 VA examination and July 2007 addendum were somewhat confusing. The record still lacks clear evidence of the cause of the Veteran's hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation and whether they are in fact caused by the Veteran's service-connected diabetes mellitus or CAD. Barr v. Nicholson, 21 Vet. App. 303 (2007); Daves v. Nicholson, 21 Vet. App. 46 (2007). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006 (during the course of this appeal), 38 C.F.R. § 3.310 was amended and institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. See 71 Fed. Reg. 52744 (2006). As the Veteran is claiming that his heart conditions are caused by his service-connected diabetes mellitus and as he has been service-connected for CAD, the opinion should adequately address aggravation. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain opinions by a cardiologist to determine the current nature and likely etiology of the Veteran's hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation. The claims folder, to include a copy of this remand, must be made available to and reviewed by the examiner prior to completion of the examination report. Based on the examination and review of the record, the examiner is requested to answer the following questions: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the diagnosed hypertension, hypertensive heart disease/congestive heart failure, and/or atrial fibrillation are related to his active military service? (b) If the answer to (a) regarding hypertension is no, is it at least as likely as not (50 percent or higher degree of probability) that the diagnosed hypertension was caused by the service-connected diabetes mellitus or CAD? (c) If the answer to (b) regarding hypertension is no, is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's service-connected diabetes mellitus or CAD aggravated the Veteran's hypertension? (d) If the answer to (a) regarding hypertensive heart disease/congestive heart failure is no, is it at least as likely as not (50 percent or higher degree of probability) that the diagnosed hypertensive heart disease/congestive heart failure was caused by the service-connected diabetes mellitus or CAD? In providing this opinion, the examiner should determine whether the Veteran currently suffers from congestive heart failure and whether his congestive heart failure is ischemic or hypertensive heart failure. (e) If the answer to (d) regarding hypertensive heart disease/congestive heart failure is no, is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's service-connected diabetes mellitus or CAD aggravated the Veteran's hypertensive heart disease/congestive heart failure? (f) If the answer to (a) regarding atrial fibrillation is no, is it at least as likely as not (50 percent or higher degree of probability) that the diagnosed atrial fibrillation was caused by the service-connected diabetes mellitus or CAD? (g) If the answer to (f) regarding atrial fibrillation is no, is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's service-connected diabetes mellitus or CAD aggravated the Veteran's atrial fibrillation? The physician is advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the physician should indicate, to the extent possible, the approximate level of severity of hypertension, hypertensive heart disease/congestive heart failure, and atrial fibrillation (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 2. Then, readjudicate the claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claim remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs