Citation Nr: 1339288 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 11-03 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an unspecified cardiac disability, to include left ventricular hypertrophy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1980 to September 1992. With regard to the issue of entitlement to service connection for an unspecified cardiac condition, this matter comes to the Board on appeal from a January 2011 rating decision by Regional Office (RO) of the Department of Veterans Affairs (VA). With regard to the claim of entitlement to service connection for a left knee disability, the matter comes before the Board on appeal from a September 2010 rating decision. In January 2013, the Veteran testified at a videoconference hearing held before the undersigned. The issue of waiver of recoupment of a Special Separation Benefit payment has been raised by correspondence dated in August 2012. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of service connection for an unspecified cardiac disability (under a merits analysis) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the hearing in January 2013, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw his appeal on the issue of entitlement to service connection for a left knee disability. 2. By rating decision in October 2008, the RO denied a claim of entitlement to service connection for service connection for an unspecified cardiac disability; a timely notice of disagreement was not received, nor was new and material evidence received within one year. 3. Certain evidence received since the October 2008 rating decision is new and relate to an unestablished fact necessary to substantiate the claim of service connection for an unspecified cardiac disability, CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran on the issue of entitlement to service connection for a left knee disability have been met. 38 U.S.C.A. § 7105(b)(2)(d)(5)(West 2002); 38 C.F.R. § 20.204 (2013). 2. New and material evidence has been received to reopen the claim of service connection for an unspecified cardiac disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). - REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Knee The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Pursuant to 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). Withdrawal may be made by the Veteran or by his authorized representative. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.204(a). In the present case, during the hearing before the undersigned in January 2013, the Veteran indicated that it was his intent to withdraw his appeal for entitlement to service connection for a left knee disability. Thus, there remains no allegation of errors of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for a left knee disability. Unspecified Cardiac Disability An August 2008 decision denied the Veteran's claim of entitlement to service connection for an unspecified cardiac disability. An October 2008 rating decision confirmed the prior denial. The Veteran did not file a timely notice of disagreement, not was new and material evidence received within one year. Although certain medical evidence was received, it was pertinent to an appeal for hypertension and not for the unspecified cardiac disorder. Under the circumstances, the October 2008 denial became final. 38 U.S.C.A. § 7105. The Veteran now requests that the claim be reopened. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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)). It appears that the prior denial was on the basis that there was no unspecified cardiac disability. The RO looked at the left ventricular hypertrophy as a symptom and not a disability per se. The Board notes here that service connection has already been established for hypertension. In connection with the request to reopen his claim, the Veteran has submitted a January 2011 opinion of the Veteran's private physician, Dr. S. Foote, noting that the Veteran had a diagnosis of borderline left ventricular hypertrophy in 1992 and 2008. Dr. Foote stated that left ventricular hypertrophy was not always, but most commonly, caused by uncontrolled hypertension. This seems to suggest that the Veteran may have a cardiac disorder (other than hypertension) which is manifested by or associated with the left ventricular hypertrophy. This new evidence, presumed to be credible, must be viewed as new and material. The claim is therefore reopened. There is no need to address compliance with the Veterans Claims Assistance Act of 2000 (VCAA) at this time as it is anticipated that any deficiencies will be remedied by the actions directed on remand. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a). ORDER The appeal as to the issue of service connection for a left knee disability is dismissed. New and material evidence has been received to reopen the claim of service connection for an unspecified cardiac disability. To this extent, the appeal is granted, subject to the following remand directives. REMAND The Veteran seeks service connection for an unspecified cardiac disorder (other than his hypertension) . He alleges that while in service he experienced chest pains which continued to the present. Service treatment records show the Veteran was treated on numerous occasions for chest pain and cardiac complaints. The Veteran was afforded a VA examination in October 2010 where hypertension and mild left ventricular hypertrophy were diagnosed. (The Board again notes the Veteran is service-connected for hypertension, and that issue is currently not on appeal). The examiner noted that ventricular hypertrophy was a consequence of prolonged untreated hypertension and therefore was evidence of the Veteran's hypertension. The examiner continued that the Veteran did not have coronary artery disease or heart disease in the traditional sense, but that his current heart condition included mild left ventricular hypertrophy, which he stated could be rated as hypertension. However, as noted earlier there is a January 2011 statement from Dr. Foote which raises the possibility that the left ventricular hypertrophy may be a symptom of a cardiac disability and not hypertension. Therefore, the Board finds that a clarifying medical opinion is necessary to determine whether the Veteran has a separate ratable cardiac condition, apart from hypertension, and whether this separate cardiac condition is etiologically related to his service or is caused by his service-connected hypertension. Furthermore, the record suggests the Veteran received treatment at a VA medical center (VAMC). The most recent record of treatment is dated in October 2010. Updated records of treatment for any cardiac conditions may contain pertinent information and must be secured. 38 C.F.R. § 3.159(c)(2). Finally, the record suggests the Veteran receives ongoing treatment by his private medical providers. The most recent record of private treatment is dated in January 2011. Records of private treatment for any cardiac conditions may contain pertinent information and must be secured. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following actions: 1. The RO must obtain copies of all relevant VA treatment records from October 2010 to the present. 2. The RO should ask the Veteran to identify all providers of treatment he has received for his cardiac conditions since 2010 (to include Dr. S. Foote), and to provide any authorizations necessary for VA to obtain all outstanding records of any such private treatment. The RO should attempt to secure for the record copies of the complete treatment records from the sources identified. 3. After completion of the above, the RO should schedule the Veteran for a VA examination by a cardiologist for the purpose of ascertaining the nature and etiology of any current cardiac disorder as well as the significance of the left ventricular hypertrophy. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. After reviewing the claims file (to include service treatment records), and examining the Veteran, the examiner should respond to the following: a. Does the Veteran have a currently diagnosed cardiac disability, separate and apart from his service-connected hypertension? The examiner is requested to address the question of whether the left ventricular hypertrophy is a symptom of the hypertension or indicative of a separate cardiac disability (if so, the separate cardiac disability should be identified.) b. For any diagnosed cardiac disability other than hypertension, is it at least as likely as not (a 50 % or higher degree of probability) that such disability was manifested during the Veteran's active duty service, within one year of discharge, or is otherwise etiologically related to the Veteran's period of active duty service? c. For any diagnosed cardiac disability other than hypertension, is it at least as likely as not (a 50 % or higher degree of probability) that such disability is proximately due to or has been aggravated by the service-connected hypertension? A detailed rationale should be furnished for all opinions. If the Veteran declines to report for the VA examination, the claims-file should nevertheless be forwarded to the appropriate examiner for review, and a report addressing the questions above should nevertheless be completed on the basis of the available evidence and information. 4. In the interest of avoiding further remand, the RO should review the medical opinion obtained and ensure that an adequate opinion with rationale has been offered. 5. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claim under a merits analysis. If the benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and be afford an opportunity for response. The case should then be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs