Citation Nr: 1304450 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-15 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability. 2. Entitlement to service connection for a heart disability, claimed as secondary to PTSD. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The veteran had active service from May 1948 to May 1952. This case initially came before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In that decision, the RO denied the Veteran's application to reopen his previously denied claim for entitlement to service connection for a heart disability. After the Veteran appealed, the RO, in a March 2008 statement of the case, reopened the claim and denied it on the merits. The Board, however, has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that the RO denied other claims in the March 2007 decision and the Board addressed all of the claims in a September 2008 decision. In that decision, the Board dismissed the application to reopen, finding it was not in appellate status because a substantive appeal had not been filed with regard to this claim. In a March 2011 memorandum decision, United States Court of Appeals for Veterans Claims (the Court) found no error in the Board's decision to dismiss the appeal on this ground but exercised its discretion to set aside the dismissal and remand the application to reopen to the Board for adjudication. The Court affirmed the remainder of the Board's decision. Hence, the only issues remaining before the Board are whether new and material evidence has been received to reopen the claim for service connection for a heart disability and, if so, whether service connection for a heart disability secondary to PTSD is warranted. In a December 2012 reply to the Board's 90 day letter, the Veteran's attorney indicated that she had received a private medical opinion, but it required clarification that she could not obtain within the allotted time. She requested an additional 30 days to submit the new evidence. Significantly, however, this representative wrote that if the Board requested a new opinion, she withdrew the request for additional time to respond and submit additional evidence in support of the remanded claim. The Board is remanding the claim for service connection for a heart disability. As such, the Board finds that the appellant's request for an additional 30 days to submit evidence has been withdrawn. For the reasons stated below, the Board reopens the claim of entitlement to service connection for heart disease. The reopened claim for service connection for a heart disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a February 1979 rating decision, VA denied the Veteran's claim of entitlement to service connection for a heart disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the February 1979 decision relates to an unestablished fact and raises a a reasonable possibility of substantiating the claim of entitlement to service connection for a heart disability. CONCLUSIONS OF LAW 1. The February 1979 decision that denied entitlement to service connection for a heart disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 2. Evidence received since the February 1979 decision is new and material and the claim of entitlement to service connection for a heart disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As the claim of entitlement to service connection for a heart disorder is being reopened, further discussion of VA's compliance with the VCAA at this time is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him"). To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). 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 determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In a February 1979 rating decision VA denied the Veteran's claim of entitlement to service connection for a heart disability. The Veteran was notified of this denial and his appellate rights in a March 1979 letter. In addressing the finality of the February 1979 decision, the Board notes that it found that this decision was final in the September 2008 decision that was affirmed by the Court and the Federal Circuit. The Board adheres to that finding in this decision. The March 1979 letter was not returned as undeliverable and the Veteran did not file a notice of disagreement within the one year appeal period. The appellant's attorney argued that the Veteran submitted new and material evidence within the one year appeal period. For the following reasons, the Board finds, as it did in September 2008 and the Court and Federal Circuit subsequently affirmed, that he did not. The Veteran's representative at that time did send an April 1979 letter to the RO within the one year appeal period. In that letter, the representative informed the RO that the Veteran had been recently hospitalized for treatment of his anxiety disorder, and that the he desired that his case be reviewed. There was no mention of the Veteran's heart disorder or reference to the February 1979 rating decision that denied entitlement to service connection for this disorder. Upon receipt of the representative's April 1979 letter, the RO took action to obtain the treatment reports related to the veteran's inpatient treatment of his anxiety reaction, as applicable regulations then required. See 38 C.F.R. § 3.155(b) (1979). Contrary to the attorney's assertion, the RO's action was not in the context of another or new informal claim for service connection for the heart disorder, but was in response to the representative's letter. The VA Form 10-7131, Exchange of Beneficiary Information and Request For Administrative and Adjudicative Action, notes in the "Remarks" block the representative's notice the veteran was examined at Togus, Maine , in April 1979, and requested a copy of the examination report. The April 1979 VA clinical entries noted the fact the Veteran had been diagnosed by his cardiologist with a heart disorder, but this notation was in the context of his overall medical history and his anxiety symptomatology. Neither the April 1979 letter nor the April 1979 examination report constituted an implied application to reopen the claim for service connection of the heart disorder. Medical examination reports may serve as informal claims solely for a defined group of claims. 38 C.F.R. § 3.157 (2012); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service- connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment, does not establish a claim, to include an informal claim, for service connection. As noted above, the Veteran's representative in April 1979 only addressed the service connected disability - anxiety reaction. He expressed no interest in any other type of claim. Read in any context, the April 1979 clinical entries related to the inpatient treatment for the anxiety disorder do not constitute treatment or discussion of a claim of entitlement to service connection for a heart disorder. It was within the context of an informal claim for an increased rating of a service-connected disability that the RO took the actions it took. At this juncture, the denial of the Veteran's claim for service connection for his heart disorder was not in issue, as it was resolved. Moreover, even assuming arguendo an informal claim to reopen was received, the evidence received did not constitute new and material evidence, as it only noted evidence already considered in the February 1979 decision, specifically that the Veteran had been diagnosed with a heart disorder. As this evidence was merely cumulative of other evidence in the record, it was not new and material under any definition. The Board also notes that a June 1979 decision informed the Veteran that the April 1979 examination report did not indicate a change in the rating of his anxiety reaction and also informed him of his appellate rights. The Veteran did not appeal this decision either and it, too, became final. As there is no correspondence or other document received prior to March 1980, i.e., within one year after receiving notice of the February 1979 decision, that would constitute either an informal claim to reopen the heart claim, or new and material evidence on the issue of service connection for the heart disorder, the February 1979 decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence before the RO at the time of the February 1979 decision included an October 1952 decision granting entitlement to service connection for an anxiety reaction, as well as medical evidence containing diagnoses of heart disorders. The evidence also included a February 1979 letter from Dr. Trask in which he noted the Veteran's diagnosis of a chronic anxiety state since 1951 and current heart disorders. Dr. Trask concluded that, "[i]t appears apparent that his chronic anxiety state has contributed to the development of his coronary insufficiency and angina on exertion." There was also a November 1993 letter treatment plan submitted by Dr. Doiron in which he indicated a diagnosis of PTSD contributing to increased vulnerability to physical ailments in general and cardiovascular problems in particular. In Its February 1979 decision, the RO noted the current heart disability and Dr. Trask's opinion, and found that the Veteran's heart disability was not incurred in service or due to service connected disability. The RO found that no relationship had been established between the Veteran's service connected anxiety reaction and his heart disorder. The RO thus implicitly found that Dr. Trask's letter was not of sufficient probative weight to warrant a finding of nexus between his current heart disability and his service connected psychiatric disability. The evidence received since the February 1979 denial includes a January 2007 VA examination report. After noting the Veteran's current heart disability and examining him, the examiner noted that the appellant had a significant smoking history and long history of a lipid disorder, and that there were the risk factors of his development of coronary artery disease. The examiner concluded, "The coronary artery disease is not caused by the PTSD." The examiner concluded, however, that, "as to aggravation, it is known that anxiety contributes to increased catecholamine which may mildly aggravate the cardiovascular system. However, I stress that the aggravation is mild by comparison to his other risk factors. I am unable to quantify the baseline manifestation." In response to a January 2007 memorandum from the RO indicating that his opinion was not definitive enough to grant service connection and requesting a rationale for his opinion, the VA examiner wrote, "As stated in the report/dictation, I was/am unable to quantify the degree/baseline any further." In response to a February 2007 memorandum specifically asking whether it was at least as likely as not that the Veteran's claimed heart condition was aggravated by his service connected psychiatric disorder, the examiner wrote, "I recant my previous opinion and state that the Veteran's cardiovascular disorder is not caused by or aggravated by the Veteran's service connected psychiatric disorder." At the time of the RO's February 1979 denial, service connection on a secondary basis was only warranted for disability proximately due to or the result of a service-connected injury or disease. 38 C.F.R. § 3.310(a). The Court's decision in Allen v. Brown, 7 Vet. App. 439 (1995) established that entitlement to service connection was warranted on a secondary basis for disability aggravated by service connected disease or injury. That rule was codified in 38 C.F.R. § 3.310(b) in an amendment that took effect on October 10, 2006, after the Veteran filed his application to reopen in this case. See Claims Based on Aggravation of a Nonservice-Connected Disability, 71 Fed. Reg. 52,744 (Sept. 7, 2006). 38 C.F.R. § 3.310(b) also provides that aggravation will not be conceded unless the baseline level of severity of the non-service connected disease or injury is established by medical evidence. As the amendment is more restrictive than the law as it was prior to passage, which allowed for service connection based on aggravation but did not require medical evidence of a baseline, it would not appear to be applicable to the Veteran's claim. As the evidence received after February 1979 has not been considered, it is new. This new evidence relates to an unestablished fact necessary to substantiate the claim, specifically, a nexus between current heart disability and the appellant's service connected PTSD. The RO found the evidence on this question before it in February 1979, Dr. Trask's February 1979 opinion, to be of insufficient probative value to warrant the granting of service connection. The new evidence contains an additional medical opinion on this question. The January 2007 VA examiner opined that the heart disability was not caused by the PTSD but may have been mildly aggravated by the PTSD, a conclusion he later "recanted." The examiner provided a rationale for the conclusion of possible aggravation but did not provide a rationale for the recantation. Given the medical opinion indicating the possibility that the Veteran's heart disability was aggravated by his PTSD, the Board finds that the new evidence, which relates to an unestablished fact, also raises a reasonable possibility of substantiating the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). Reopening of the claim of entitlement to service connection for a heart disability is therefore warranted. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a heart disability. REMAND The only theory advanced by the Veteran and his attorney is that the Veteran's current heart disability is caused or aggravated by his posttraumatic stress disorder. There are multiple medical opinions that have addressed this question. Specifically, Dr. Doiron's November 1993 treatment plan indicating that in which he indicated a diagnosis of PTSD contributing to increased vulnerability to physical ailments in general and cardiovascular problems in particular; Dr. Trask's February 1979 opinion in which he noted the Veteran's diagnosis of chronic anxiety state since 1951 and current heart disorders and concluded, "It appears apparent that his chronic anxiety state has contributed to the development of his coronary insufficiency and angina on exertion;" and the January 2007 VA examiner's contradictory opinions as noted above. Neither Dr. Doiron's nor Dr. Trask's opinions are stated definitely or specifically enough to warrant a grant of service connection, Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to "may or may not" is an insufficient basis for an award of service connection), but the Board agrees with the Veteran's attorney to the extent that a new medical opinion by a VA cardiologist is warranted in this case. That cardiologist should consider all relevant medical literature as to the possible relationship between stress from psychiatric disability and heart disease, including that cited by the Veteran's attorney, as well as the reasoning of VA in concluding that a presumption of service connection was warranted for hypertensive vascular disease for prisoners of war. The Board notes, however, that there is no evidence that the appellant is a former prisoner of war. Accordingly, the claim of entitlement to service connection for heart disability secondary to PTSD is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request an opinion from a VA cardiologist. The claims folder and all pertinent records from Virtual VA must be made available for the cardiologist's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the physician's report. Following a review of the claims file including Virtual VA, the cardiologist should offer an opinion on the following questions: a) Is it at least as likely as not, i.e., is there a 50/50 or better chance, that the Veteran's current heart disability is caused by his PTSD. b) Is it at least as likely as not, i.e., is there a 50/50 or better chance, that the Veteran's current heart disability is aggravated, i.e., made worse, by his PTSD. A complete rationale must be given for all opinions and conclusions expressed. The cardiologist should specifically address the prior medical opinions expressed on this question as discussed above and all relevant medical literature as to the possible relationship between stress from psychiatric disability and heart disease, including that cited by the Veteran's attorney, as well as the reasoning of VA in concluding that a presumption of service connection was warranted for hypertensive vascular disease for prisoner of wars. Again, the Veteran is not a former prisoner of war. 2. Then, after considering whether any additional development to include any additional and necessary rating reexaminations, the RO should readjudicate the claim for service connection for a heart disorder. If any determination remains unfavorable to him, he must be furnished with a supplemental statement of the case, and given an opportunity to respond thereto. The Veteran 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs