Citation Nr: 1338466	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  13-04 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement for service connection for mitral valve prolapse.


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel






INTRODUCTION

The Veteran served on active duty from October 1980 to March 1981.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA).

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.


FINDINGS OF FACT

1.  A September 2008 RO decision continued a prior denial of service connection for mitral valve prolapse; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 

2.  Evidence added to the record subsequent to the appeal period does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

New and material evidence has not been received to reopen the claim of entitlement to service connection for mitral valve prolapse.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Additionally, in March 2006, the Court held that because the terms 'new' and 'material' in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).

The record reflects that the Veteran was provided all required notice in a November 2010 letter, prior to the March 2011 rating decision deciding the claim to reopen.  

As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran.  In this regard the Board notes that VA has obtained the Veteran's service treatment records and post-service treatment records.  Documents were requested from the Social Security Administration (SSA) but VA received a negative response and further efforts to obtain them would be futile.  38 C.F.R. § 3.159 (c) (2).

Although no VA examination was provided and no VA opinion was obtained in response to the Veteran's claim to reopen, VA is not obliged to provide an examination or obtain an opinion in response to a claim to reopen if new and material evidence has not been presented.  See 38 C.F.R. § 3.159(c) (4).

The Veteran has not identified any outstanding evidence that could be obtained to substantiate her claim; the Board is also unaware of any such evidence.  Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim.

Accordingly, the Board will address the merits of the claim.

Legal Criteria

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase, 'raises a reasonable possibility of substantiating the claim' as 'enabling rather than precluding reopening.'  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c) (4), which, 'does not require new and material evidence as to each previously unproven element of a claim.'  Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).

Factual Background and Analysis

The Veteran's claim of entitlement to service connection for mitral valve prolapsed was denied in a November 2001 rating decision.  The Veteran filed a timely notice of disagreement (NOD), was furnished a statement of the case (SOC), but failed to perfect the appeal or submit any pertinent evidence within the appeal period.  

In June 2008, the Veteran filed a request to reopen the claim for entitlement to service connection for mitral valve prolapse.  Based on this application to reopen, the RO sent the Veteran letter in July 2008 requesting that she submit new and material evidence.  Due to the Veteran's failure to submit any evidence, the RO denied the claim in September 2008.  The RO informed the Veteran of her appellate rights but she did not appeal the decision or submit any pertinent evidence within the appeal period.   
 
In October 2010, the Veteran submitted a statement requesting that the claim be reopened.  In the March 2011 rating decision on appeal, the RO declined to reopen such claim.

The evidence associated with the claims file at the time of the November 2001 rating decision included the Veteran's service treatment records (STRs), a Milwaukee VA Medical Center (VAMC) report from November 1998, and private medical records from November 1995 and May 1998.  The Veteran's October 1985 VA examination report shows that she was noted to have a history of prolapsing mitral valve.  A January 1999 VA examination report reflects the examiner's opinion that the mitral valve prolapse more likely than not preceded the Veteran's entrance into the military and was not caused or aggravated by her short term in service.  The January 1986 initial rating decision denied the Veteran's claim finding the prolapsing mitral valve pre-existed service and was not aggravated by service.  A February 1999 rating decision denied reopening the claim due to lack of new and material evidence.  The November 2001 rating decision denied the claim to reopen because although the evidence of record demonstrated current prolapsing mitral valve, the evidence still did not suggest either that the Veteran's 'mitral valve prolapse did not exist before active duty or that it was aggravated by active service.  No additional pertinent evidence was added to the record prior to the last final denial of the claim in September 2008.

Evidence added to the record since the September 2008 rating decision includes VAMC records from February 2011 to April 2011.  The February 2011 VAMC records note indications of valvular heart disease and the April 2011 report notes moderate aortic regurgitation due to non-compliance and poor follow-up after the Veteran complained of a squeezing sensation over the left heart for two days.  The Board notes that SSA records were requested in May 2011; however, a negative response was received advising that SSA had no medical records for the Veteran.   

The additional VAMC treatment records demonstrate treatment for current prolapsing mitral valve.  The records are not material because they do not tend to establish a previously unestablished fact, namely that the Veteran's mitral valve prolapse originated in service, is causally related to service, or was aggravated by service.  Therefore, the records do not raise a reasonable possibility of substantiating the claim.     

The Veteran's brief statements have also been added to the record but they do not address an unestablished fact necessary to substantiate the claim or otherwise establish a reasonable possibility of substantiating the claim.  Therefore, her statements are not material.

In sum, there is still no competent evidence that the Veteran's mitral valve prolapsed was incurred in or aggravated by service.  The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Thus, the Board finds that new and material evidence has not been submitted, and reopening of the claim is not in order.


ORDER

New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for mitral valve prolapse is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs