Citation Nr: 1340141 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-14 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for cardiomyopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1975 to December 1983. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Salt Lake City, Utah Department of Veteran Affairs (VA) Regional Office (RO). In December 2011, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. The matter of service connection for cardiomyopathy on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An unappealed August 2002 rating decision denied the Veteran service connection for cardiomyopathy based essentially on findings that such disability was not manifested in, or shown to be causally related to, his service. 2. Evidence received since the August 2002 rating decision includes medical evidence that relates the Veteran's cardiomyopathy to his service, relates to an unestablished fact necessary to substantiate the claim of service connection for cardiomyopathy, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for cardiomyopathy may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). It applies to the instant claim. However, inasmuch as this decision grants that portion of the claim that is being addressed, i.e. reopens the claim, there is no reason to belabor the impact of the VCAA on this matter, as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis An August 2002 rating decision denied the Veteran's claim of service connection for cardiomyopathy essentially on the basis that the evidence did not show that such disability was manifested during service or within a year after service, and was not otherwise shown to be causally related to his service. He did not appeal this decision and it became final. 38 U.S.C.A. § 7105. Generally, a claim on which there is a prior final denial may not be reopened and reconsidered unless 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 newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board notes that it has reviewed all evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. 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. Evidence of record at the time of the August 2002 rating decision included service treatment records (which are silent for complaints, treatment, or diagnosis of a heart disability); a September 1988 VA examination (that did not find heart abnormality); treatment records from Dr. C.S.C. (showing diagnoses of cardiomyopathy since 2001); and VA treatment records (showing treatment of cardiomyopathy). The record in August 2002 did not include a medical opinion regarding the etiology of the cardiomyopathy. Evidence received since the August 2002 rating decision pertaining to the claim to reopen includes two opinions from Dr. C.S.C. that relate the Veteran's cardiomyopathy. Taken at face value (as required for the purpose of reopening), these opinion letters address the matter of a nexus between the claimed disability and the Veteran's service, relate to an unestablished fact necessary to substantiate the claim of service connection for cardiomyopathy, and raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received since August 2002 is both new and material, and that the claim of service connection for cardiomyopathy may be reopened. ORDER The appeal to reopen a claim of service connection for cardiomyopathy is granted. REMAND When the Board reopens a claim that the RO did not, the matter must be remanded for RO initial de novo consideration unless there is a waiver of such consideration by (or on behalf of) the Veteran, or the Board finds that the Veteran would not be prejudiced by from the Board's de novo adjudication of the claim in the first instance. Hickson v. Shinseki, 23 Vet. App. 394, 399-401 (2010). The Veteran has not waived RO initial consideration of the reopened claim, and the Board is unable to find that he would not be prejudiced by denying RO initial consideration of the claim. Therefore, a remand for RO development and initial de novo consideration of the reopened claim is necessary. The case is REMANDED for the following: The RO should review the entire record, arrange for any further development indicated (e.g., a VA examination to secure a nexus opinion), and readjudicate de novo the Veteran's claim of service connection for cardiomyopathy. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs