Citation Nr: 1216477 Decision Date: 05/08/12 Archive Date: 05/16/12 DOCKET NO. 11-04 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen the previously denied claim of service connection for heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from April 1941 to November 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by a special expedited processing unit ("Tiger Team") of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This decision, in pertinent part, determined that new and material evidence had not been submitted to reopen a previously denied service connection claim for arteriosclerotic heart disease (previously claimed as coronary artery disease with chronic congestive heart failure, status post myocardial infarction and coronary artery bypass graft secondary to the service-connected malaria). The Board has recharacterized the disability for which service connection is currently being sought as "heart disease." The claim is now under the jurisdiction of the RO located in Detroit, Michigan. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The now reopened service connection claim for heart disease is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision dated in February 2008, the Board denied the Veteran's claim of service connection for coronary artery disease with chronic congestive heart failure, status post myocardial infarction, and status post coronary artery bypass graft; the Veteran was notified of this decision and of appellate rights; and the Veteran did not perfect an appeal to the decision within the allotted time and the decision became final. 2. The evidence added to the record since the February 2008 Board decision is not cumulative or redundant and, when considered with previous evidence of record, relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection. CONCLUSION OF LAW Subsequent to the final February 2008 Board decision, new and material evidence has been received to reopen the claim of service connection for heart disease. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. To provide adequate notice with regard to an application to reopen a claim, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In regard to the Veteran's application to reopen his claim in this case, the Board finds that new and material evidence has been submitted sufficient to reopen the above-mentioned claim previously denied by the Board in February 2008. Thus, further discussion concerning those requirements is not necessary as this action is favorable to the Veteran, and it therefore cannot be prejudicial to him regarding this aspect of his appeal. See Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The claim for service connection for heart disease was most recently finally denied by the Board in February 2008. The evidence of record at that time included the Veteran's service treatment records, which did not show that cardiovascular disease was manifest in service or to a compensable degree within one year of service discharge. An October 1943 service physical examination showed that the heart was not enlarged. There were no thrills and no murmurs; sounds were quite loud. A soft systolic murmur over the pulmonic area was not considered significant. The record shows that the Veteran contracted malaria and amoebic dysentery while in service in New Guinea. Service connection for malaria was granted in an April 1944 rating decision, and service connection for dysentery was granted in a November 1948 rating decision. In a June 1950 rating decision, service connection for dysentery was recharacterized as irritable colon syndrome secondary to service-connected amoebic dysentery and a 10 percent disability evaluation was assigned. A January 2005 VA heart examination report includes a diagnosis of coronary artery disease status post coronary artery bypass graft. The examiner opined that the Veteran's heart disorder was not caused by or the result of his service-connected malaria and/or ambiasis. She added that there was no medical literature relating malaria and ambiasis with the subsequent development of coronary artery disease. In July 2005, the Veteran submitted an internet article, attributable to BBC News, which states that the dehydration that results from dysentery can be fatal if untreated, as vital organs, such as the heart, require a minimum amount of water and salt to function. With regard to a relationship between the Veteran's malaria and dysentery and heart disease, the Board also noted in its February 2008 decision that there were conflicting medical opinions of record. One, a statement received in November 2004, and supplied by L. G., a physician's assistant, stated that he believed that the Veteran's heart problems "may be" related to having malaria and amebiasis, which would have significantly weakened his heart. Two, the VA examiner in January 2005 stated that there was no medical literature relating malaria and amebiasis with the subsequent development of coronary artery disease many years later. She concluded that the Veteran's current heart condition was not caused by or the result of service-connected malaria and amebiasis. The Board, in denying the claim in February 2008, found that the Veteran's coronary artery disease with chronic heart failure, status post myocardial infarction, status post coronary artery bypass graft was not etiologically related to service or to a service-connected disability. The Veteran was notified of this decision in February 2008, but did not express disagreement with the decision. The Veteran sought to reopen his service connection claim for heart disease, characterized as "arteriosclerotic heart disease" less than a week before the issuance of the Board's February 2008 decision. See VA Form 119, Report of Contact. This has no bearing on the fact that the Veteran did not appeal the Board's February 2008 decision to the United States Court of Appeals for Veterans Claims (Court). The RO informed him by letter of May 2009 that his claim had been previously denied in March 2005, and that new and material evidence was needed for him to reopen it. He was provided notice of the definition of new and material evidence as set out in 38 C.F.R. § 3.156. The fact that the Veteran was not informed that the last final denial was by the Board in February 2008 has no prejudicial effect on the Veteran as, as noted, the claim is being reopened. After the application to reopen the Veteran's claim, additional pertinent evidence associated with the Veteran's claims folder includes a November 2000 operative report from Covenant Healthcare, which shows he underwent a triple aortocoronary bypass grafting procedure. He also submitted other private medical records showing his receipt of ongoing care for his coronary artery disease. Also associated with the record is an attachment to a VA Form 646, dated in October 2011. As part of the attachment, the Veteran's accredited representative indicated that a review of past treatment records showed that quinine was utilized in the Veteran's treatment for malaria. He added that this medication affected the heart in the sense that it may cause arrhythmias. Also, an Informal Hearing Presentation, submitted by the Veteran's representative in April 2012, shows that it was argued that the Veteran's taking quinine to treat his malaria had "aggravated" his heart condition over time. The representative also cited an internet medical website, which indicated "Quinine" was used alone or with other medications to treat malaria (a serious or life-threatening illness that is spread by mosquitoes in certain parts of the world) and may cause serious or life-threatening side effects, including severe bleeding problems, kidney damage, irregular heartbeat, and severe allergic reactions. As the previous final February 2008 denial of service connection was premised on a finding that, in part, the Veteran's claimed heart disease was not secondarily-related to a service-connected disability, for evidence to be new and material (i.e., relating to unestablished facts necessary to substantiate the claim and raising a reasonable possibility of substantiating the claim), the evidence would have to relate to a currently-manifested heart disorder being linked to a service-connected disability. The Board has thoroughly reviewed the evidence associated with the claims file subsequent to the Board's February 2008 denial and finds that this evidence constitutes new and material evidence which is sufficient to reopen the previously denied claim for service connection for heart disease. The majority of this evidence is certainly new, in that it was not previously of record. The Board also finds that the statements presented by the Veteran's accredited representative, in which it is asserted that quinine used by the Veteran for treatment of his service-connected malaria aggravated his heart condition over time is material because this statement, and the underlying argument presented, raises a reasonably possibility of substantiating the claim. The Board must presume the credibility of this evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claim and may not assess its probative weight in relation or comparison to other evidence for reopening purposes. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Therefore, this new evidence, presumed to be credible, is related to unestablished facts of providing a possibility etiological link between the use of quinine and the subsequent development of heart problems. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for heart disease. The Board notes that the adjudication of the Veteran's appeal does not end with the finding that new and material evidence has been received. In further adjudication of the claim, the presumption that the additional evidence is true without regard to the other evidence of record no longer applies. For the reasons stated in the REMAND portion of this decision below, the Board concludes that additional development is required in order to address the merits of the underlying service connection claim. ORDER Having received new and material evidence to reopen a claim of entitlement to service connection for heart disease, the appeal is granted to this extent only. REMAND The reopening of the claim of service connection for heart disease triggers certain duty to assist provisions of the VCAA, which must be met prior to de novo review of the claim. The duty to assist includes obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. The medical record includes information pertaining to the Veteran's currently-claimed heart disease. As noted, the Veteran has asserted that his claimed heart disease is secondarily-related to a service-connected disorder. Namely, his taking quinine for treatment for malaria. The Veteran is not shown to have been provided a VA examination concerning his heart disease which addressed this precise theory of entitlement to service connection. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Further, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Ascertaining whether the Veteran currently has heart disease which was related to his active military service -- to include being secondarily related to a service-connected disability -- is best resolved by obtaining a competent medical opinion. Under the VCAA, VA is required to 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. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). In view of the foregoing, this matter is REMANDED to the RO for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO/AMC should arrange for the Veteran's complete claims file, to include his service treatment records and all post service medical evidence (both VA and private) be reviewed by an appropriate VA medical professional to determine the etiology of his heart disease. The reviewing medical professional should review the entire claims folder, and render medical opinions as to whether it is at least as likely as not (i.e., is there at least a 50 percent probability) as to the following: A. Is it at least as likely as not that the Veteran has heart disease which is the result of his active military service? B. Is it at least as likely as not that any heart disease shown to be present is caused OR aggravated by the Veteran's service-connected malaria, to include the in-service use of quinine for malaria treatment. If it is determined that the Veteran's heart disease was worsened by the Veteran's service-connected malaria (to include his taking quinine for treatment), to the extent that is possible the examiner should indicate the approximate degree of disability or baseline (e.g., mild, moderate, severe) before the onset of the aggravation. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Davis, Hunt. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The report should contain medical history and clinical findings, and a rationale for medical conclusions rendered. 2. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action has not been undertaken or is deficient in any manner, the RO must take appropriate corrective action. 3. Following completion of all indicated development, the RO should readjudicate the issue on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs