Citation Nr: 1312244 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 04-00 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for heart disability, to include ventricular pre-excitation with recurrent supraventricular tachyarrhythmia with Wolf-Parkinson-White (WPW) Syndrome. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from August 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was before the Board in May 2011. The Veteran appealed the Board's May 2011 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated February 6, 2012, the Court vacated the Board's May 2011 denial and remanded this matter to the Board for compliance with the instructions included in the February 2012 Joint Motion To Vacate and Remand. This matter was remanded in June 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by contacting the Veteran (by letter dated in June 2012) to determine whether the 1990 and 1992 ablations were done at the VA or a private medical facility; obtaining outstanding VA treatment records from the Dallas, Texas medical facility and issuing a supplemental statement of the case (SSOC). See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. In an October 2000 decision, the Board reopened the Veteran's claim of service connection for heart disability, but then denied the claim on the merits; the Veteran did not appeal from the October 2000 decision. 2. Evidence received since the October 2000 Board decision is cumulative or redundant and evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for heart disability. CONCLUSIONS OF LAW 1. The October 2000 Board decision which denied the Veteran's claim of entitlement to service connection for heart disability is final. 38 U.S.C.A. § 7104 (West 2002). 2. New and material evidence has not been received to reopen the claim of service connection for heart disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in February 2002 and January 2003. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with additional notice in March 2006 and November 2008, subsequent to the initial adjudication. Altogether, the notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Kent v. Nicholson, 20 Vet. App. 1 (2006), advising him of the applicable laws and regulations, and information and evidence necessary to reopen his claim of service connection for heart disability. While the March 2006 and November 2008 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in August 2006, May 2007, November 2009 and February 2013 supplemental statements of the case, following the provision of notice in March 2006 and November 2008. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA treatment records and lay statement, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the veteran the opportunity to give testimony at a DRO hearing in May 2005. On a statement received in February 2013, the Veteran's representative stated that there was no additional evidence to submit and requested that the case be forwarded to the Board immediately. In a statement received in March 2013, the Veteran's representative stated that he had no arguments to present and requested that the Board proceed with the adjudication of the claim. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. New and Material Evidence The reopening of the Veteran's heart disability claim was denied by rating decision in November 1981. He did not complete and appeal, and the November 1981 rating decision became final. 38 U.S.C.A. § 7105(c). The Veteran subsequently requested that his claim be reopened. The request was denied and the Veteran then appealed to the Board. By decision in October 2000, the Board reopened the claim, but denied on the merits. The Veteran did not appeal from the October 2000 Board decision, and that decision is final. 38 U.S.C.A. § 7104. The Veteran subsequently again requested that the claim be reopened. The RO denied the request, and the present appeal to the Board ensued. The request to reopen the Veteran's claim for heart disability, to include ventricular pre-excitation with recurrent supraventricular tachyarrhythmia with WPW Syndrome involves an underlying claim of service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a 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; 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 cardiovascular diseases, 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). Evidence of record at the time of the October 2000 Board decision included service treatment records, post-service VA and private medical records, statements and letters from the Veteran, the transcript of an August 1995 Board hearing, and VA examination reports and opinions dated in the late 1990's. Based on that record, the Board reopened the Veteran's claim and then denied under a merits analysis on the bases that the Veteran's heart disorder was a congenital defect which could not be service-connected and that there was no superimposed acquired cardiac disease or injury during service. The Veteran did not appeal from the October 2000 Board decision, and it became final. 38 U.S.C.A. § 7104. Evidence received since the October 2000 Board decision includes duplicate copies of a December 1976 separation examination showing that ventricular pre-excitation with recurrent supraventricular tachyarrhythmia with WPW Syndrome existed prior to service and was not aggravated by service; and a January 1977 Medical Evaluation Board proceeding revealing that the Veteran had a disorder of heart rhythm that had been present since the age of 15, that there was no evidence of aggravation in service, and that any worsening was attributable to the natural progression of the disease. Also included was a duplicate copy of an October 1999 VA letter from M.A., RN, MS, FNP-C and K.R, M.D., that noted that the Veteran has WPW, which is a congenital defect, and that he was undergoing treatment; and it was additionally noted that M.A. had been informed that the treatment for palpitations began while the Veteran was in service. The Board notes that the aforementioned evidence is not new. Rather, it is cumulative and redundant of the evidence previously considered. Additional evidence received since the 2000 Board decision includes an April 2002 VA letter from M.A., who reported the Veteran's condition at the time; a February 2002 VA treatment record that shows treatment for WPW; a transcript of a May 2005 DRO hearing in which he reported not having a preexisting condition prior to entering service; and various lay statements from those who know the Veteran and notice his difficulty breathing and tiring easily. The Veteran also submitted January 2007 and May 2009 VA letters from M.A., who stated that the Veteran's WPW was successfully ablated in 2001. It was noted that the Veteran had a history of WPW and paroxysmal atrial fibrillation. It was additionally noted that the syncope that the Veteran reported in service could be caused by a superventricular tachycardia or paroxysmal atrial fibrillation in conjunction with the WPW syndrome. M.A. found that the symptoms are consistent with the diagnosis. The Veteran further submitted a June 2009 VA letter from T.N., M.D., who stated that he had treated the Veteran since September 2008. When asked by the Veteran for an opinion regarding his military hospitalization for symptoms of palpation, Dr. T.N. responded that according the Veteran's narrative history, the Veteran has symptoms that could be related to his current cardiac diagnosis of WPW and paroxysmal atrial fibrillation. Evidence obtained as a result of the June 2012 Board remand includes various VA treatment records from January 2002 and November 2011 show a past medical history of WPW status post ablation, no syncope or presyncope, and physical examination of his heart rate. Although the evidence discussed above is new, the above-mentioned evidence is not material as the evidence does not suggest either that the Veteran's cardiac disorder is not a congenital defect or that there is a superimposed acquired cardiac disorder which was manifested during service or otherwise related to service. The Board acknowledges the Veteran's statement received in January 2004 in which he noted that the Army had accepted him "as a whole and healthy person and there is no evidence" that he had a preexisting condition. In support of his claim, the Veteran submitted various lay statements from those who had witnessed the symptoms of his disability; and one in particular stated in a letter dated in April 2006 that the Veteran was in good health prior to entering service. At the May 2005 DRO hearing, it was asserted that the Veteran was found physically and mentally sound entering the military. The Veteran asserted that he would not have been sent overseas if he had a medical problem. The Veteran and his representative found it strange that this congenital problem was not identified earlier in the Veteran's military career. The Veteran also testified that he had never been hospitalized for anything prior to entering service, and he did not know how the Medical Board concluded that he had a preexisting condition since he was a teenager. However, assertions and testimony that there was no preexisting heart disorder had been advanced in connection with the appeal which was denied by the Board in 2000; therefore, the statements and testimony offered in this regard in connection with the current appeal are duplicative. In sum, there has been no new and material evidence received. Accordingly, the Board's analysis must end here and the appeal is denied. See 38 U.S.C.A. § 5108. ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for heart disability, to include ventricular pre-excitation with recurrent supraventricular tachyarrhythmia with WPW Syndrome. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs