Citation Nr: 1308231 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-33 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatic heart disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from April 13, 1953 to June 24, 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in October 2009, a statement of the case was issued in February 2010, and a substantive appeal was received in August 2010. On the substantive appeal, the Veteran requested a Travel Board hearing; however, in a November 2012 statement, he withdrew the hearing request. The Veteran had also initiated an appeal regarding a claim of service connection for chronic obstructive pulmonary disease (COPD) with emphysema. However, in the August 2010 substantive appeal, he specifically limited his appeal to the issue regarding rheumatic heart disease. Therefore, the matter regarding service connection for COPD is not on appeal before the Board. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. A March 1999 Board decision found that no new and material evidence had been submitted to reopen the Veteran's previously denied claim of service connection for rheumatic heart disease. The Veteran did not appeal the Board's decision, nor was new and material evidence received within one year. 2. Certain evidence received since the March 1999 Board decision relates to an unestablished fact necessary to substantiate the claim of service connection for rheumatic heart disease. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for rheumatic heart disease is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. In a March 1999 decision, the Board found that no new and material evidence had been submitted to reopen the Veteran's previously denied claim for entitlement to rheumatic heart disease. The Veteran did not appeal the Board's decision. Therefore, that decision is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. "New" evidence means existing evidence not previously submitted to agency decisionmakers. 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). 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 issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether a condition pre-existed service, the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must be considered. 38 U.S.C.A. § 3.304(b); see Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). A lack of aggravation can be shown by establishing either that there was no increase in disability or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence at the time of the March 1999 Board decision included the Veteran's STRs, postservice treatment records, and numerous lay statements. The Veteran's STRs include findings of heart disease. On January 1953 service pre-induction examination, the heart was normal on clinical evaluation. However, in May 1953, it was noted that he had had shortness of breath on exertion for about 3 years; his local doctor stated that he had a leaking valve. There was no history of rheumatism. The Veteran reported left chest pain both related to and unrelated to exertion, usually afterward, and his heart beat fast all the time. On physical examination, the impression was of organic heart disease, rheumatic type or congenital. It was recommended that the Veteran stop training and return for a final evaluation and disposition. He was re-examined one week later and the previous physical findings were confirmed. The final diagnosis was rheumatic heart disease, inactive, type unknown, with enlarged heart and mitral insufficiency; the line-of-duty determination was that the heart disease was not aggravated by reason of military service. It was recommended that the Veteran be separated from service as being unfit for general or even limited duty. On June 1953 Medical Board proceedings, it was determined that the Veteran's heart disease originated in approximately 1949, was not incident to service, existed prior to entry on active duty, and was not permanently aggravated by active duty. The June 1953 service separation examination repeated the aforementioned final diagnosis and line-of-duty determination. On November 1958 VA examination, the Veteran reported being examined approximately one month after entering service with complaints of shortness of breath and chest discomfort. It was noted that he had a loud apical systolic murmur and he was discharged from service with the diagnosis of rheumatic mitral insufficiency. The Veteran reported that he knew about a murmur prior to entering service. He gave no history of rheumatic fever. He stated that he was not ill with shortness of breath or chest discomfort prior to entering service. The diagnosis was organic heart disease, class II. A December 1958 rating decision denied service connection for heart disability, based essentially on findings that the disability pre-existed service and was not aggravated in service. The rating decision noted no evidence of rheumatic fever during service, and positive findings recorded within a short time after the Veteran entered active duty. The post-service treatment records show treatment for newly diagnosed congestive heart failure in February 1986. These records from U.C. Davis Medical Center also include findings of aortic valve and mitral valve thickening as well as mitral valve regurgitation. At that time, the Veteran also reported a history of rheumatic fever at age 5. On October 1989 treatment, the Veteran complained of dizziness upon standing, with near syncope, without vertigo, head trauma, chest pain, shortness of breath, or alcohol use. Symptomatic orthostatic hypertension, etiology unclear, was diagnosed. On March 1990 treatment, the Veteran's assessments included coronary artery disease, stable. There was no evidence of congestive heart failure. A history of rheumatic fever at age 5 was noted. In December 1993 statements, the Veteran's brother stated that, to the best of his knowledge and recollection, the Veteran did not have any heart problems prior to joining the Army in 1953. The Veteran's mother stated that the Veteran had no history of heart disease when he entered service; a physical examination was performed, all tests were negative, and he was then accepted into the Army. The Veteran contended that his heart condition was brought on by the rigors of training and being issued a gas mask that leaked. A February 1994 rating decision denied service connection for heart disease, based essentially on findings that the STRs strongly support the conclusion previously reached by the Medical Board and VA that rheumatic heart disease existed prior to service and was not aggravated by service. A January 1995 rating decision found that no new and material evidence had been submitted to reopen the claim for heart disease. In June 1995 statements, the Veteran's friend P.Y. stated that he grew up with the Veteran; they used to play ball together and joined the service together. He stated that the Veteran was never sick and had no shortness of breath until he went into the Army and began basic training. He stated that the Veteran was unlucky and was given a leaking gas mask, after which he started going down. Another friend, R.W., stated that he had known the Veteran since they were children, and he had never known him to have a heart problem or shortness of breath, even when playing basketball in high school. In a June 1995 RO hearing, the Veteran testified that he had no health problems before entering service. He testified that, in training, he had to go to a gas chamber and was given a leaky gas mask, which allowed gas into his system and caused him to pass out, and he had been slowly going down ever since that time. He testified that his father told him to say he had a history of three years of problems with difficulty breathing on exertion, because he was trying to get the Veteran out of service. He testified that he sought treatment after service, including a two week hospital stay in 1957, although he did not remember if the treatment was for his heart. He testified that he went to the hospital a few times in 1970, and he had a major heart attack in 1972 and was treated by VA. He testified that he had another major heart attack in 1986. In a July 1995 statement, Dr. Hosoume stated that the Veteran was under his care for a history of congestive heart failure, which was currently stable. He noted the Veteran's report of a history of rheumatic heart disease diagnosed in 1953. Dr. Hosoume opined that the rheumatic heart disease could certainly contribute to the Veteran's development of heart failure diagnosed in 1986. In a February 1996 statement, the Veteran's mother stated that the Veteran did not have rheumatic fever at age 5 (as he reported on medical treatment) or thereafter, and she has another son who developed rheumatic fever between ages 5 and 7. A September 1997 Board decision (on appeal from the January 1995 rating decision) found that new and material evidence had not been submitted to reopen the claim of service connection for a heart disorder. In a November 1998 memorandum decision, the Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the matter for readjudication based on new case law. In a March 1999 decision, the Board again found that new and material evidence had not been submitted to reopen the service connection claim for rheumatic heart disease. The Veteran did not appeal the March 1999 decision to the Court, and it became final. Evidence received since the March 1999 Board decision includes VA and private treatment records, two medical opinion letters, and duplicate STRs. On March 2000 VA treatment, the Veteran reported smoking half a pack to one pack per day of tobacco x 47 years. On April 2000 VA treatment, the assessments included asthma/COPD, hypertension, and status post two myocardial infarctions. In a January 2008 statement, Dr. Yeates noted that the Veteran had first seen him that day and wanted him to write a letter with respect to the Veteran's heart disease (including two previous heart attacks) as well as an incident in basic training while in service in which a faulty gas mask resulted in a hospitalization for three days. Dr. Yeates opined that this incident may or may not have contributed to the Veteran's heart problems. Dr. Yeates further opined that the Veteran's smoking history, high cholesterol and hypertension most likely have contributed to his heart problems as well. A June 2008 rating decision found that no new and material evidence had been submitted to reopen the claim for rheumatic heart disease. A January 2009 rating decision also found that no new and material evidence had been submitted to reopen the claim for rheumatic heart disease. The Veteran also submitted a private medical opinion which was to the effect that it is more likely than not that the Veteran's heart trouble was aggravated by his military induction training. This provider further opined that the Veteran's exposure to mustard gas training is more likely than not to be the cause of his lungs and heart conditions. Because service connection for rheumatic heart disease was previously denied based on findings that such disability pre-existed service and was not aggravated by service, for evidence to be new and material in this matter, it would have to relate to these findings. Board finds that the private medical opinion that it is more likely than not that the Veteran's heart trouble was aggravated by his military induction training, must be presumed to be credible for purposes of the new and material evidence analysis. As such, it is new and goes to an unestablished fact necessary to substantiate the claim. This item of evidence is new and material and the claim is reopened. There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations at this time. It is anticipated that any VCAA deficiencies will be remedied as a result of actions directed in the remand section of this decision. ORDER The claim of service connection for rheumatic heart disease is reopened. To this extent, the appeal is granted, subject to the directives in the following remand section of this decision. REMAND Given the reopening of the Veteran's claim, the Board finds that further medical development is necessary to fully assist the Veteran with his claim. Accordingly, the case is hereby REMANDED for the following actions: 1. The Veteran should be scheduled for an appropriate VA examination by a medical doctor. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should respond to the following: a) Did the Veteran's heart disease preexist his entry into active duty service? b) If so, did the Veteran's heart disease increase in severity during service beyond the natural progress of the disease? Please set forth detailed reasons with citation to pertinent medical evidence, with discussion (as appropriate) of the role, if any, of exposure to mustard gas or other toxic gases during basic training. In the event the Veteran fails to report for the examination, the RO should nevertheless forward the claims file to an appropriate medical doctor for review and for responses to the posed questions. 2. In the interests of avoiding further remand, the RO should review the medical opinion to ensure that it is responsive to the posed questions. 3. After completion of the above, the RO should review the claims file under a merits analysis. If the Veteran's claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs