Citation Nr: 1503048 Decision Date: 01/22/15 Archive Date: 01/27/15 DOCKET NO. 10-30 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence sufficient to reopen the issue of entitlement to service connection for a heart disability has been submitted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1978 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claim to reopen entitlement to service connection for a heart disability, and a January 2010 rating decision which found moot the issue of entitlement to a TDIU. A hearing was held on May 13, 2014, in Philadelphia, Pennsylvania, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board notes that Veteran's former attorney purported to withdraw the Veteran's appeal as to the issue of whether new and material evidence had been submitted sufficient to reopen a claim for service connection for a heart disability, via a letter dated May 12, 2014. The Veteran appeared at the Board hearing on May 13, 2014 and testified that he wished to continue the appeal. The Veteran's former attorney has since had his VA accreditation canceled and the Veteran's signed pro se election form was received by the Board in December 2014. The Board thus finds that the Veteran has demonstrated his intention to continue the appeal. The issues of entitlement to service connection for a heart disability and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a December 1993 rating decision, the RO denied the Veteran's claim for service connection for a heart disability; during the relevant appeal period, the Veteran did not submit a notice of disagreement and new and material evidence was not received. 2. Evidence associated with the claims file since the December 1993 decision is new, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a heart disability. CONCLUSIONS OF LAW 1. The December 1993 rating decision, in which the RO denied the Veteran's claim for service connection for a heart disability, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993); currently 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. As evidence pertinent to the claim for service connection for a heart disability, received since the RO's December 1993 denial is new and material, the criteria for reopening the claim are met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Without deciding whether the notice and development required have been satisfied with respect to the Veteran's claim, the Board concludes that these duties do not preclude the Board from adjudicating this claim, because the Board is taking favorable action by reopening the claim, and is granting in full the benefits sought on appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran. II. New and Material Evidence In December 1993, the RO denied the Veteran's claim for service connection for a heart disability. The Veteran was informed of the decision and did not submit a Notice of Disagreement or new and material evidence during the appeal period. The RO's December 1993 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993); currently 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). The evidence of record for the December 1993 rating decision consisted of VA treatment records, service treatment records and the Veteran's statements. The basis for the RO's denial was that there was no evidence of a heart condition in service or within one year following discharge and no medical evidence of a current heart disability. 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). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by 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). The United States Court of Appeals for Veterans Claims (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, 117 (2010). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). During the May 2014 Board hearing, the Veteran testified that he had gone to the emergency room several times during the preceding three years for chest pain. A January 2010 VA stress test included an impression of Abnormal SPECT stress/rest myocardial perfusion study, with evidence of small ischemia in the apex. This evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim, specifically, the existence of a current heart disability. Therefore, it is new and material, and reopening the claim for service connection for a heart disability is warranted. ORDER New and material evidence having been submitted, the claim for service connection for a heart disability is reopened. REMAND Reasons for remand: To provide the Veteran with VA examination; to procure outstanding private treatment records and records of in-patient hospitalization during service; and to issue a Statement of the Case (SOC). The Veteran contends that he has a heart disability which is related to service and to his service-connected posttraumatic stress disorder (PTSD) with substance induced mood disorder, and alcohol/drug abuse. The Veteran has not yet been provided with VA examination with respect to the nature and etiology of any heart disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court of Appeals for Veterans Claims held that an examination is required when there is (1) competent evidence of a current disability or recurrent symptoms, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). At the May 2014 Board hearing, the Veteran testified that he had gone to the emergency room several times during the preceding three years for chest pain. A January 2010 VA stress test included an impression of Abnormal SPECT stress/rest myocardial perfusion study, with evidence of small ischemia in the apex. The Veteran also testified at the Board hearing that he was diagnosed with an arrhythmia during service, and his service treatment records include a September 1982 separation examination report recording the Veteran's endorsement of experiencing pain or pressure in his chest. Based on this evidence, the Board finds that on remand, the Veteran should be scheduled for a VA examination to assess the nature and etiology of any heart disability. The Board notes that although the Veteran testified at the Board hearing that he had gone to the emergency room at the DCMH on multiple occasions during the prior three years, the most recent treatment record from this private facility in the claims file is from July 2008. VA has a duty to make reasonable efforts to obtain relevant private treatment records on behalf of the Veteran. Since a complete set of treatment records regarding the presence of any current heart disability and/or diagnosis is relevant to the claim, they should be obtained, pending any necessary release from the Veteran. 38 C.F.R. § 3.159(c)(1) (2014). The Veteran also testified that during his period of active service, he was hospitalized for chest pains, overnight, at the 29 Palms Naval hospital. In a prior statement, submitted in May 1993, the Veteran specified that he was hospitalized during September 1981. In this statement, he also indicted that he was hospitalized at Camp Pendleton for approximately a week in June 1980, at Kadena Air Base in May 1982 and at the Navy Hospital in Okinawa in June 1982. The Board notes that clinical in-patient treatment records may be stored separately from the Veteran's service treatment records. VA's duty to assist requires it to make as many requests as necessary to secure relevant Federal records, including military STRs. 38 C.F.R. § 3.159(c)(2). As these outstanding records are relevant to the Veteran's claim, and there is no indication of prior efforts to retrieve them, they should also be requested on remand. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159. Finally, the RO issued a rating decision in January 2010 in which it found that the Veteran's claim for a TDIU was moot because he is currently evaluated at 100 percent for his service-connected PTSD. The Veteran submitted a Notice of Disagreement with this determination in February 2010. When a Notice of Disagreement has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). As adjudicative action on the appeal of the issue of entitlement to a TDIU has not yet been taken, the issue must be remanded for the issuance of an SOC and to give the Veteran the opportunity to complete an appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a release form for private hospital records from DCMH from July 2008 to the present. After securing the Veteran's written authorization, obtain the private records identified. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow her the opportunity to obtain the records. (Note: The Board is using initials to protect the identity of the Veteran. In all correspondence to the Veteran, the full name of the private facility, which can be found in the Board hearing transcript, should be used in order to aid him in responding to the request.) 2. Request from any appropriate source any in-patient/hospitalization records for the Veteran at Camp Pendleton for approximately a week during June 1980, at 29 Palms Naval hospital during September 1981, at Kadena Air Base in May 1982, and at the Navy Hospital in Okinawa in June 1982. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional to assess the nature and etiology of any heart disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. The examiner should then address the following: Provide a diagnosis for any heart disability present at any time during the appeal period (April 2009 to present). For any diagnosis provided, state an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the heart disability arose during active service or is otherwise related to any incident of service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart disability was caused by his service-connected PTSD with substance induced mood disorder, and alcohol/drug abuse. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart disability was aggravated by his service-connected PTSD with substance induced mood disorder, and alcohol/drug abuse. For purposes of this analysis, 'aggravation' is defined as a permanent worsening of the not service-connected disability beyond that due to the natural disease process. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. After completing the aforementioned, and conducting any additional development deemed necessary, readjudicate the issue of entitlement to service connection for a heart disability in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 5. After completing the above, conduct any additional development deemed necessary then readjudicate the claim for a TDIU and issue a Statement of the Case addressing the issue. The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect to that issue. The appellant 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs