Citation Nr: 1331459 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-15 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island 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: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1956 to August 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Providence, Rhode Island RO. In August 2013, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the claims file. 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). FINDINGS OF FACT 1. An unappealed May 1959 rating decision denied the Veteran service connection for rheumatic heart disease, finding in essence that such disability was unrelated to his service. 2. Evidence received since the May 1959 RO rating decision includes a private medical statement indicating that the Veteran had rheumatic heart disease with mitral stenosis diagnosed in January 1959 (within one year following separation from service); relates to an unestablished fact necessary to substantiate the claim of service connection for rheumatic heart disease; and raises a reasonable possibility of substantiating such claim. 3. It is reasonably shown that the Veteran's rheumatic heart disease was manifested to a compensable degree within one year following his discharge from active duty. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for rheumatic heart disease may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Rheumatic heart disease may be presumed to have been incurred in service, and service connection for such disease is warranted. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA applies in this case. However, as the benefit sought is being granted, there is no need to belabor the impact of the VCAA on this claim as any VCAA-mandated notice or duty to assist omission is harmless. Factual Background Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. An unappealed May 1959 rating decision denied the Veteran service connection for rheumatic heart disease, finding in essence that such disability was not manifested on or related to his service. The evidence of record in May 1959 consisted of the Veteran's STRs, which are silent for any complaints, findings, treatment, or diagnosis relating to heart disease, and a May 1959 VA examination report which includes a diagnosis of rheumatic heart disease with mitral valvulitis Class I and notes that the "Veteran never had any rheumatic fever" and "[w]as found in January of 1959 to have murmurs of the rheumatic heart by the National Guard. Perusal of in-service records reveals no cardiac findings." Evidence received subsequent to the May 1959 rating decision includes an undated statement from E. J. Mara, M.D., received in February 2011 (which lists the Veteran's address as the one of record in 19590, the Veteran's hearing testimony, and VA and private treatment records. The statement from Dr. Mara indicates that the Veteran was examined in January 1959, when rheumatic heart disease with mitral stenosis was diagnosed. Dr. Mara noted that the Veteran reported he was discharged from service in August 1958 and, on January 1959 National Guard examination, a murmur was noted. During the videoconference hearing, the Veteran recalled that he was drafted in 1956 and had no problems on physical examination for enlistment; however, his heart would palpitate during vigorous exercise in service. On examination for Reserve service after discharge, he was told that he had a heart problem and it was suggested that he see a cardiologist. His heart disease was subsequently confirmed on cardiology examination and he has experienced progressively increased heart problems since service discharge. VA and private treatment records from 1989 to the present show the Veteran's history of ongoing heart treatment. Legal Criteria As is noted above, the Veteran's initial claim of service connection for rheumatic heart disease was denied in May 1959. He was properly notified of the decision and of his appellate rights; he did not appeal the decision (or submit new and material evidence in the year following), and it is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(b). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (to include cardiovascular disease) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for cardiovascular disease). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Analysis As the May 1959 rating decision which denied service connection for rheumatic heart disease was based essentially on finding that such disability was not manifested in, or related to, the Veteran's service, for evidence to be found new and material, it must be evidence not of record in May 1959 that addresses such a finding. The evidence received since May 1959 includes an undated statement from Dr. Mara and the Veteran's hearing testimony and suggests that the Veteran's heart disease had its onset in service. This additional evidence tends to relate the Veteran's heart disease to his service, and therefore specifically addresses the unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "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.") Thus, the additional evidence received is both new and material, and the claim of service connection for rheumatic heart disease may be reopened. The analysis proceeds to de novo review of the claim. The Board notes that the Veteran is not prejudiced by the Board's proceeding with de novo review of this claim without returning it to the RO for their initial consideration upon reopening because this decision grants the benefit sought. The record shows that the Veteran's heart problems were diagnosed as rheumatic heart disease in January 1959, within the one year period after his August 1958 separation from service. Although (as an effect of the passage of time on availability of contemporaneous records) there is no conclusive evidence that the rheumatic heart disease was manifested to a compensable degree during the one year period the one year period following the Veteran's separation from service, that it was found to be disqualifying for National Guard service, and merited referral to a cardiologist, and the Veteran's hearing testimony (which the Board finds forthright and credible) describing the impact of cardiac symptoms on function suggest it was indeed manifest to a compensable degree at that time. Resolving any remaining reasonable doubt in the Veteran's favor as mandated (see 38 C.F.R. § 3.102), the Board finds that it is shown that his rheumatic heart disease was manifest to a compensable degree in the first year following his discharge from active duty, and may be presumed to have been incurred therein. See 38 U.S.C.A. § 1112, 1137; 38 C.F.R. § 3.307, 3.309. Accordingly, service connection for rheumatic heart disease is warranted. ORDER The claim of service connection for rheumatic heart disease is reopened; service connection for rheumatic heart disease is granted on de novo review. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs