Citation Nr: 1321283 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-25 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for congestive heart failure with swelling of the feet, ankles and hands, previously claimed as cardiovascular disability (hereinafter "CHF"). 2. Entitlement to service connection for CHF. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and C.T. ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975. This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a January 2008 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Columbia, South Carolina. In December 2011, the Board remanded the claim to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC for further development of the record, to include scheduling the Veteran for a videoconference hearing. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ") in April 2013. A transcript of that hearing is associated with the eFolder on Virtual VA (hereinafter "Virtual VA"). The issue of entitlement to service connection for CHF is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDINGS OF FACT 1. The Veteran's original claim of service connection for cardiovascular disability was denied by an unappealed rating decision in March 2004, of which the Veteran was advised in March 2004. 2. The evidence received since the March 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for CHF and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed March 2004 rating decision, which denied service connection for cardiovascular disability, is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 3.158, 3.160(d), 20.201, 20.302, 20.1103 (2012). 2. New and material evidence has been received, and the claim for service connection for CHF is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). However, until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this decision the Board reopens the claim for service connection for CHF. Since the Board is reopening the claim, there is no need to discuss whether there has been compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), in terms of notifying the Veteran of the evidence necessary to substantiate the element or elements of his claim that were found insufficient in the previous denial. Kent, 20 Vet. App. at 10-11; see also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). This is because the Board is reopening the claim irrespective of any Kent concerns. Under this circumstance, there is no prejudice to the Veteran in adjudicating the application to reopen without further discussion of VA's duties to notify and assist. Bernard v. Brown, 4 Vet. App. 384 (1993). The Merits of the Claim-New and Material Evidence The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may 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) (2012). The Veteran is seeking to reopen his claim for service connection for CHF. The Board presently reopens the claim. In a March 2004 rating decision, the RO denied entitlement to service connection for cardiovascular disability on the basis that the Veteran failed to provide evidence of any diagnosed cardiovascular disability that could be associated with any event or experience in military service. That is, the RO determined that the Veteran failed to provide evidence of a current disability, evidence of incurrence or aggravation of a disease or injury in service, and evidence of a nexus, or link, between the in-service injury or disease and the current disability. The March 2004 rating decision is final but may be reopened upon receipt of new and material evidence. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). At the time of this denial, the pertinent evidence of record included the Veteran's service treatment records and VA treatment records, and a VA general examination report, along with the Veteran's written statements. Evidence submitted since the March 2004 rating decision, includes written statements and hearing testimony from the Veteran and his niece, and VA and private treatment records. The Veteran sought to reopen his claim in July 2007. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). Section 3.156(a) "must be read as creating a low threshold," and "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence." Id. at 10. Instead, it is intended to guide VA adjudicators in "determining whether submitted evidence meets the new and material requirements." Id. However, "[f]or reopening, 38 U.S.C. § 5103A(a) does not require VA to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim." Id. at n.7. The Board has thoroughly reviewed the evidence associated with the claims file subsequent to the March 2004 rating decision and finds that this evidence constitutes new and material evidence which is sufficient to reopen the previously denied claim for service connection. The majority of this evidence is new, in that it was not previously of record. In this regard, VA and private treatment records show ongoing treatment for cardiovascular symptomatology. Moreover, the Veteran and his niece have presented various written statements and hearing testimony in support of his claim, which have included description of the development of his CHF, and associated symptomatology. 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 claims 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). The Veteran and his niece are competent to describe observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Therefore, the newly received evidence pertains to elements of the claim that were previously found to be lacking. Furthermore, as will be discussed below, the evidence triggers VA's duty to provide examination. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds the lay evidence presented by the Veteran and his niece, along with VA and private treatment records showing current treatment for CHF and related cardiovascular pathology, to generally provide more information concerning the circumstances surrounding the onset and etiology of his CHF, see Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998), and thus are material in that they relate to previously unestablished facts that tend to substantiate the Veteran's claim. For these reasons, the Board finds that the additional evidence received since the March 2004 rating decision warrants a reopening of the Veteran's claim of service connection for CHF, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for CHF and, to that extent only, the claim to reopen is granted. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claim on appeal that has been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Notably, new evidence in the form of Internet research pertaining to the claimed CHF was submitted in May 2013. Although the Veteran's representative indicated at the April 2013 Board hearing that they intended to submit a waiver of initial RO consideration of that evidence, no such waiver was included. The Federal Circuit has emphasized the Board's status as "primarily an appellate tribunal," and has held that the Board is prohibited from considering additional evidence without having to remand the case to the RO for initial consideration, unless having an appropriate waiver from the Veteran. Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In any event, in light of the need for a remand of this case, the RO will have the opportunity to review such additional evidence in the first instance on remand and, if necessary, to issue a Supplemental Statement of the Case (SSOC). Additionally, review of the record indicates that a new VA examination and medical opinion be obtained to evaluate the nature and etiology of the claimed CHF. In this regard, the service treatment records show that on discharge Report of Medical Examination, dated in July 1975, the Veteran was observed to have a "functional 2/6" systolic ejection murmur at left sternal border. The post-service clinical record, dated from 2003 to 2012, shows that the Veteran underwent multiple left cardiac catheterizations, and was treated for various cardiovascular disorders since his separation from service. In this regard, a November 2003 VA treatment record shows the Veteran was diagnosed with minimal elevated cardiac troponin with normal ck-mb: second set of cardiac enzymes negative. Cardiology felt that this finding was consistent with an increase of myocardial ischemia, and recommended that once the acute problem resolved the Veteran undergo a catheterization. The Veteran was prescribed "lovenox." He was also diagnosed with supraventricular tachycardia, must likely multifactorial, for which he was prescribed "carvedilol," and with dilated myocardiopathy. Also in November 2003, the Veteran was diagnosed with an atrial flutter, for which he was prescribed an IV of "lopressor." In January 2004, the Veteran underwent a VA general examination. Here, the Veteran gave a history of being treated with nine different medications for his heart that he got from VA. The examiner noted that this could not be confirmed by review of the record because the claims file was unavailable for review. The Veteran did not know the names of his medications, but reported that he had angina on occasion, which went away on its own. He noted that he could walk approximately a city block before becoming short of breath. On physical examination, the Veteran's blood pressure was 150/90 and his pulse was 80. On cardiovascular examination, the examiner observed S1 and S2 with no murmurs, rubs or gallops. The examiner noted that there were no current laboratory tests or diagnostic studies in the computer, and none were clinically indicated from the examination. The Veteran was diagnosed with alcohol abuse and dependence, and with posttraumatic stress disorder, but not with any cardiovascular disability. A November 2004 VA treatment record shows a history of cardiomyopathy related to alcohol abuse, congestive heart failure and arrhythmia. He also underwent an echocardiogram (hereinafter "ECHO") in November 2004, which revealed findings of technically difficult study with poor parasternal and apical four chamber acoustic window; left ventricle appeared mildly dilated with at least moderate to severe impairment in global systolic function; relaxation impairment of left ventricular filling consistent with diastolic dysfunction; right ventricle with at least moderate impairment in global systolic function; minimal pericardial effusion; dilated inferior vena cava; and left atrial cavity appearing normal in size. A private treatment record from "Palmetto Baptist Medical Center," dated in April 2006, shows diagnosis of dilated cardiomyopathy. A VA discharge summary, for inpatient treatment from November 2006 to December 2006, reveals the Veteran underwent an ECHO and electrocardiography (hereinafter "EKG") in November 2006. The ECHO study revealed normal left ventricle size and systolic function; Grade I diastolic dysfunction; normal left ventricle wall thickness; mild left atrial dilatation; normal right ventricle size and function; normal right ventricle wall thickness; normal opening of aortic valve with all three leaflets seen; normal structure and function of mitral valve; normal structure and function of tricuspid valve; trivial tricuspid regurgitation; pulmonary artery not well seen; normal aortic root size; and normal size of inferior vena cava. The EKG study revealed sinus tachycardia, and when compared to an EKG in July 2005, fusion complexes were no longer present. The criteria for septal infarct were also no longer present. The Veteran also underwent EKGs in July 2007 and August 2009. A VA treatment record, dated in December 2007, reflects the Veteran was diagnosed with angioedema. The Board finds the January 2004 VA examiner's opinion to be of no probative value as it did not address the post-service clinical record showing treatment for various cardiovascular disorders since 2003. Also, the examiner did not have the ability to review the Veteran's claims file prior to or during the examination. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). The Court has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, the Board finds it necessary to obtain additional VA examination and medical opinion to evaluate the nature and etiology of any diagnosed cardiovascular pathology noted in the record and on examination. See 38 U.S.C.A. § 1110, 1131, 1310 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). Accordingly, the Board finds that a new examination and opinion is in order. McLendon v. Nicholson, 20 Vet. App. 79 (2006). This review must be conducted with a review of the claims folder including Virtual VA. Also, the Veteran testified that he received VA treatment in the 1990's for his CHF and related cardiovascular pathology. Virtual VA was reviewed and did not reveal any VA treatment records from the 1990's, although there was an annotation that they contained records from January 1996 to June 2012. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, VA must obtain any outstanding records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to request that the Veteran identify all healthcare providers that have treated him for his CHF and any other cardiovascular pathology, and provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. After securing any necessary release forms, with full address information, the RO/AMC should request that all records of medical treatment not currently associated with the claims file should be requested. The RO/AMC should also obtain copies of all outstanding VA treatment records not yet associated with the claims file, to specifically include any VA treatment records dated in the 1990's. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records obtained pursuant to these requests must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. It is not necessary for records existing in the Virtual VA system to be printed. 2. The RO/AMC must arrange for a VA examination with an appropriate clinician to determine the nature and etiology of any cardiovascular pathology diagnosed. All indicated studies and tests are to be performed. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. After reviewing the claims files, including recent submissions of Internet research by the Veteran, the examiner should identify all cardiovascular pathology noted in the record, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed cardiovascular pathology, to specifically include CHF, had its onset during service or within one year of service discharge, or is otherwise causally related to any event or circumstance of his active service. The examiner should address the Internet research provided by the Veteran in May 2013 in the report. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record, to include the testimony of his niece. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 3. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the claim for service connection. If the benefit sought is not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs