Citation Nr: 1323525	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  10-40 826A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Whether new and material evidence has been received to reopen a claim for heart disease claimed as congestive heart failure, secondary to service-connected hypertension.  


REPRESENTATION

Appellant represented by:	Elizabeth F. Lunn, Attorney


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active military service from May 1971 to November 1978.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The RO styled the case as a service connection case, but the Board has restyled it, as discussed below, as a new and material evidence case. 


FINDINGS OF FACT

1.  The Veteran's claim for service connection for congestive heart failure (CHF), secondary to his service-connected hypertension, was denied in a February 2008 rating decision.  He did not appeal that decision, although appropriately notified of it, or submit any additional evidence concerning this claim within one year of receiving notification of that decision.

2.  The additional evidence since received is cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim.


CONCLUSION OF LAW

In the absence of an appeal, that February 2008 rating decision last considering and denying the claim for service connection for hypertrophic obstructive cardiomyopathy (claimed as congestive heart failure) is final and binding based on the evidence then of record, and there is not new and material evidence since to reopen this claim.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.200, 20.1103 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law that it is required to apply.  This includes statutes enacted by Congress and published in Title 38 of the United States Code ("38 U.S.C.A."), regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court/CAVC) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue 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.  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). 

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

However, if VCAA notice was not provided prior to the initial adjudication of the claim or, if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case ("SOC") or Supplemental Statement of the Case ("SSOC"), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in July 2009.  Dingess, 19 Vet. App. at 473.  The letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective responsibilities in obtaining evidence.  The letter also informed him of what constituted new and material evidence.  He was informed that new evidence must be evidence that was submitted to VA for the first time and that was not cumulative or redundant of evidence already considered.  He was informed that material evidence must relate directly to substantiation of the claim.  The July 2009 letter also explained that his claim was previously denied because his claimed condition was not shown to have been incurred during his service or caused by, a result of, or aggravated by his service-connected hypertension.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  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).

The duty to assist provisions of the VCAA also have been met.  The claims file contains service treatment records (STRs), service personnel records, reports of VA and private physicians post-service medical treatment, and the Veteran's lay statements.

The Veteran has not been afforded a VA examination to assess the nature and etiology of his congestive heart failure because no new and material evidence has been submitted that would reopen the claims.  VA's duty to assist the Veteran in the development of his claims is not triggered unless and until a claim is reopened.  See 38 U.S.C.A. § 5103A.  Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet. App. 542 (1996) (holding that unless new and material evidence has been submitted, the duty to assist does not attach); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence).  That said, the Veteran was afforded a VA examination in July 2009 for an increased rating hypertension claim.  During that examination, the examiner opined on the Veteran's congestive heart failure, and the Board finds this opinion probative. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

Petition to Reopen the Claim for Service Connection for Congestive Heart Failure, Secondary to Hypertension 

Relevant to this characterization of the issue on appeal, the Board notes that a change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition.  38 C.F.R. §§ 4.13, 4.125; Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).  In this instance, the RO denied the Veteran's claim for hypertrophic cardiomyopathy (HOCM), which was initially claimed as congestive heart failure (CHF), secondary to his service-connected hypertension, in February 2008.  The RO found that the heart condition was not incurred in or aggravated by his service, nor was it caused by his hypertension.  The Veteran did not submit a Notice of Disagreement and the rating decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012).  

In June 2009, the Veteran requested to "reopen [his] claim" for CHF.  The RO, in a September 2009 rating decision, denied the Veteran's claim on the merits.  Although the RO styled the case as a service connection claim, new and material evidence is necessary to reopen the claim since the current diagnosis and claim are based on the same factual basis as the prior denial.  However, the requirement of the receipt of new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal, regardless of the RO's action in the matter.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996).  Further, inasmuch as the RO has already addressed the merits of the service connection claim, the Veteran is not prejudiced by the Board's recharacterization of the issue as one necessitating new and material evidence as the duty to notify has been satisfied, and the Veteran has been given the opportunity to submit information and evidence in support of his underlying claim.  Thus, the Board finds that all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

Generally, service connection may be granted for a 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(a) (2012).  In addition, 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).  Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by a service connected disability or aggravated by a service connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Under 38 U.S.C.A. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim.  King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence.  See 38 U.S.C.A. § 5108.

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). 

In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed."  Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Only in cases in which the newly submitted evidence is "inherently false or untrue" or beyond the competence of the person making the assertion does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994). 

At the time of the February 2008 denial, the record consisted of the Veteran's STRs, a January 2008 VA examination, treatment records from May 2007 to September 2007 from Cape Fear Valley Medical Center, and treatment records from June 2007 to September 2007 from Cape Fear Cardiology Associates.  

The Veteran's induction examination in January 1971 cites a heart murmur, but there is otherwise no discussion of any heart-related condition in the STRs.  In the January 2008 VA examination, the Veteran was diagnosed with "hypertrophic obstructive cardiomyopathy (HOCM) with mitral insufficiency and atrial fibrillation."  The examiner found the HOCM "to be genetic in its origin, and it is not caused by hypertension."  The examiner further explained that "hypertension has been shown not to aggravate HOCM.  Atrial fibrillation and mitral insufficiency are well known sequelae of HOCM."  Furthermore, the Veteran was diagnosed with acute congestive heart failure (CHF), but this CHF was "secondary to a combination of HOCM, mitral insufficiency, and acute onset atrial fibrillation, not hypertension."  The Veteran's private medical records confirm a diagnosis of HOCM, but do not discuss its etiology.  See, e.g., September 2007 Cardiology Consultation ("patient has an uncertain history of hypertrophic cardiomyopathy", June 2007 Cardiology Consultation ("patient has a "long-term history of . . . [HOCM]").  Moreover, CHF is mentioned in these records, but again its etiology is not discussed.  See September 2007 Cardiology Consultation (CHF is listed as one of 11 "impressions" and is deemed "resolved"). 

The February 2008 rating decision denied his claim for CHF, secondary to service connected-hypertension because the CHF was not shown to have been incurred in or aggravated by his military service or secondary to service-connected hypertension.

In support of his current petition to reopen this claim, the evidence of record since the February 2008 rating decision includes a July 2009 VA examination, VA medical records from August 1999 to November 2011, and private medical records from January to March 2008.

The Board finds that this evidence is not new and material because it does not raise a reasonable possibility of substantiating his claim.  38 C.F.R. § 3.156(a). Specifically, none of the evidence received indicates his CHF or any other heart disease was either incurred during or aggravated by his military service or caused or aggravated by his service connected-hypertension. 

The Veteran was afforded a VA examination in July 2009 for an increased rating hypertension claim.  During that examination, the examiner opined that the Veteran's CHF was "due to HOCM, not secondary to hypertension."  The VA medical records discuss the past history of CHF, but its etiology is never discussed.  See February 2008 VA inpatient treatment record (CHF is "evidenced by past medical history.")  The private medical records confirm a diagnosis of HOCM, but again no etiology of the Veteran's CHF is discussed.  See, e.g., February 2008 consultation with D.L., M.D. (Veteran has "CHF with HOCM" and his episodes of CHF are "related to atrial fibrillation"), and February 2008 Interpretation Summary from Southwest Regional Medical Center (echocardiogram findings are "consistent with HOCM").  

As mentioned above, the July 2009 VA examination repeats the findings of the January 2008 VA examination.  Additionally, the evidence of episodes of CHF is not material because the evidence of record prior to, so certainly at the time of, the February 2008 denial showed he had been treated for said condition.  See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are not material to issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence).

Finally, although the Veteran has not contended that his claimed heart disease is due to exposure to Agent Orange, the Board has considered whether recent regulatory amendments regarding ischemic heart disease and Agent Orange exposure may be the basis for reopening the Veteran's claim.  The law provides a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service.  Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions.  Effective August 31, 2010, VA has amended 38 C.F.R. §3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange).  75 Fed. Reg. 53202 -53216 (August 31, 2010); see also 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6) (2012).  

Specifically, the law provides that, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  See 38 C.F.R. § 3.307(a)(6)(iv).   

However, service records indicate that the Veteran did not serve in the Republic of Vietnam; that he served in Korea from September 1971 to June 1974; that there has been no diagnosis of ischemic heart disease; and more importantly, that the Veteran's congestive heart disease has been attributed to a combination of a genetic heart condition, specifically hypertrophic obstructive cardiomyopathy and secondary mitral insufficiency and atrial fibrillation.  See 38 C.F.R. § 3.307(d) (evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease).  Therefore, even assuming that there was exposure to Agent Orange in Korea for purposes of reopening the claim, entitlement to service connection for congestive heart failure would not be warranted on a presumptive basis due to herbicide exposure and there exists no competent evidence otherwise suggestive of direct service connection.  See 38 C.F.R. §§ 3.307, 3.309; see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 

In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).



ORDER

As no new and material evidence has been received, the claim for service connection for congestive heart failure, secondary to service-connected hypertension, is not reopened.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs