Citation Nr: 1301522	
Decision Date: 01/15/13    Archive Date: 01/23/13

DOCKET NO.  08-16 452	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability. 

2. Service connection for a heart disability. 


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1965 to October 1967. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for a heart disability.  In February 2011 the RO issued a supplemental statement of the case which addressed the issue of reopening a claim for service connection for a heart disability. 
 
Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim for service connection for a heart disability.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

In July 2012 a Board hearing was held before the undersigned; the transcript is of record. 

The issue of service connection for a heart disability 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 a May 2006 decision, the Board denied service connection for a heart disability.  

2. Evidence submitted since the Board's May 2006 decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a heart disability. 


CONCLUSIONS OF LAW

1. The May 2006 Board decision that denied entitlement to service connection for a heart disability is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104 (2012). 

2. The criteria for reopening the claim for service connection for a heart disability are met.  38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.

In general a Board decision is final.  See 38 U.S.C.A. §§ 7103(a), 7104(a), (b), 7261(a)(3); 38 C.F.R. § 20.1100(a), 20.1104.  However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  Shade v. Shinseki, 24 Vet. App. 110, 117   (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 

The May 2006 Board decision denied service connection, finding that the Veteran's heart disability was not incurred in service nor was it aggravated during service.  Evidence received since the May 2006 Board decision includes the Veteran's testimony that he experienced heart symptoms in service, to include shortness of breath.  The Veteran's testimony is presumed credible for purposes of determining whether the claim should be reopened. 

This evidence is new and material as it was not of record at the time of the May 2006 Board decision and it relates to a material element of the claim (i.e. symptoms of a heart disability in service).  As such, reopening the claim is warranted.  


ORDER

The application to reopen a claim for service connection for a heart disability is granted.

REMAND

Remand is necessary to comply with the duty to assist. 

Decisions of the Board must be based on all of the evidence that is known to be available.  38 U.S.C.A. § 5103(A).  The duty to assist particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA or Social Security records.  Counts v. Brown, 6 Vet. App. 473 (1994).

The record reflects that the Veteran testified that he has been receiving Social Security disability benefits since December 2008 due to his heart disability.  As no attempt has been made to obtain the records used to support the grant of Social Security disability benefits, an additional remand to obtain and associate any such records with the claims file is necessary as such records may contain evidence relevant to the issue on appeal. 

The Veteran also testified that he was having heart surgery the day after the July 2012 Board hearing.  An attempt to obtain these private medical records should be made. 


Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's Social Security Administration (SSA) disability benefits records. 

2. Attempt to obtain recent private treatment records, to include for the Veteran's July 2012 heart surgery.  Provide the Veteran with an authorization and consent form.  

3. After undertaking any other development deemed essential in addition to that specified above, readjudicate the Veteran's claim for service connection for a heart disability.  If the decision remains adverse to the Veteran, furnish him with an SSOC and afford a reasonable period of time within which to respond.



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. 2012).




______________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs