Citation Nr: 1605684 Decision Date: 02/12/16 Archive Date: 04/01/16 DOCKET NO. 04-31 063 ) DATE FEB 12 2016 ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for mitral valve prolapse (MVP). 2. Entitlement to service connection for a bilateral arm/shoulder disorder, to include as due to the service-connected cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to August 1998. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was processed using the Veterans Benefits Management System (VBMS).  In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The Veteran testified before the undersigned in an October 2015 Central Office Board hearing in Washington, D.C. The transcript of the hearing is included in the record. Regarding the issue of whether new and material evidence has been received to reopen service connection for MVP, the Board recognizes that there are some procedural deficiencies, to include no statement of the case. During the October 2015 Board hearing, the Veteran noted that she did file a substantive appeal as to “all issues” and wished to proceed with her appeal regarding that issue. Accordingly, the Board will take jurisdiction of the issue. See e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal). The issue of service connection for a bilateral arm condition was previously remanded by the Board in October 2010 to obtain a medical opinion. This was accomplished and the claim was readjudicated in a July 2014 supplemental statement of the case. In October 2010, the Board had also remanded the issues of service connection for a left hand condition and service connection for a right hand condition. Thereafter, in a July 2014 rating decision, the RO granted service connection for right and left thumb extensor tenosynovitis with arthritis. Accordingly, those issues are no longer before the Board for consideration. The issues of service connection for MVP (reopened) and service connection for a bilateral arm/shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed April 1999 rating decision denied service connection for MVP. 2. The evidence received since the April 1999 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for MVP. CONCLUSIONS OF LAW 1. The April 1999 rating decision, which denied reopening the claim for service connection for MVP, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received subsequent to the April 1999 rating decision is new and material; the claim for service connection for MVP is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156(a) (2015). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The Veteran's previously denied claim for service connection for MVP is reopened, as explained below. The reopened claim on appeal is being remanded for further development. As such, there is no prejudice to the Veteran and no further discussion of the VCAA is required. Reopening of Service Connection for MVP The Veteran was initially denied service connection for MVP in an April 1999 rating decision because the Veteran was not found to have a current diagnosis of MVP as her cardiac examination was found to be within normal limits. The Veteran was notified of the rating decision, but did not file a notice of disagreement with the April 1999 rating decision. Therefore, the April 1999 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In a May 2005 rating decision, the RO confirmed and continued the Veteran’s claim for service connection for MVP. Although the claim was reopened, the RO found that the evidence did not show that the Veteran’s MVP was incurred or related to service. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. Because the April 1999 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: 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) (2015). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the April 1999 rating decision consisted of the Veteran's service treatment records and a September 1998 VA examination. The evidence received subsequent to the June 2007 rating decision includes, in pertinet part, the Veteran's October 2015 Board hearing. During the hearing, the Veteran testified that she was diagnosed with MVP in service in 1979. She noted that, as a result of her MVP, she now has to take antibiotics when having surgery or prior to going to the dentist. See Board Hearing Transcript at pg. 8. This evidence, which is presumed to be credible for purposes of reopening the claim, shows that the Veteran continues to have a MVP diagnosis that may have first been diagnosed in service. The Board finds that the October 2015 Board hearing transcript is new, as it was not of record prior to the issuance of the April 1999 rating decision. The evidence, moreover, is material within the meaning of applicable law and regulations because it is probative of the issue at hand. Accordingly, the Board finds that the newly added evidence relates to an unestablished fact necessary to substantiate the Veteran's claims of service connection for MVP. 38 C.F.R. § 3.156(a). As such, the Veteran's claim for service connection for MVP is reopened. ORDER New and material evidence having been received, the claim for service connection for MVP is reopened. REMAND Service Connection for MVP In an August 1978 service treatment record, it was noted that the Veteran had valvular heart disease as manifested by mitral valve prolapse, which was noted to be hemodynamically insignificant and essentially asymptomatic. In a March 1979 service treatment record, the Veteran was seen for ruptured membranes and active labor. It was noted that the Veteran had previously had a “diagnosis of mitral valve prolapse.” During the October 2015 Board hearing, the Veteran testified that she was diagnosed with MVP in service in 1979. She noted that, as a result of her MVP, she now has to take antibiotics when having surgery or when being seen by a dentist. The Board finds that a VA examination is warranted to assist in determining whether the Veteran has a currently diagnosed MVP disorder, and if so, whether it was incurred in or otherwise related to service. Service Connection for Bilateral Arm Disorder The Veteran is seeking to establish service connection for a bilateral arm/shoulder disorder. During the October 2015 Board hearing, the Veteran testified that her bilateral arm symptoms may be related to her service-connected cervical spine disability. The Veteran was afforded a VA examination in March 2009. The examiner, following interview and examination of the Veteran, as well as x-ray examination, confirmed the diagnosed bilateral rotator cuff tendonitis, manifested by bilateral arm pain. The examiner, in both March 2009 and May 2010, did not provide an opinion as to the etiology of the diagnosed disorder. Pursuant to the Board’s October 2010 remand directive, the Veteran was afforded another VA examination in January 2011. The examiner noted that the Veteran had a diagnosis of bilateral shoulder rotator cuff tendinitis. The examiner then opined that it was less likely than not that the Veteran’s bilateral shoulder disorders were related to service. In support of this opinion, the examiner noted that the symptoms in service did not mention rotator cuff problems. Specifically, the arm pain during service was thought to be due to bicep tendon strain and mostly from the cervical spine issues. Based on this evidence, the Board finds that the Veteran should be afforded another VA examination to assist in determining whether the Veteran’s bilateral arm/shoulder disorder is caused or aggravated by the service-connected cervical spine disability. Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records (not already of record) and associate them with the electronic claims file. 2. Schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of the Veteran's claimed mitral valve prolapse disorder. The evidence of record, including a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests and evaluations deemed necessary should be performed. The examiner is then asked to address the following: (a) Does the Veteran currently have a diagnosis of mitral valve prolapse? (b) If so, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s mitral valve prolapse was incurred in service or is otherwise related to service? The examiner must provide a complete rationale for his or her opinions with references to the evidence of record. 3. Schedule the Veteran for an appropriate VA examination to assist in determining the etiology of her bilateral arm/shoulder disorder. Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a) Is it as least as likely as not (i.e., 50 percent or greater probability) that the Veteran's bilateral arm/shoulder disorder (diagnosed as bilateral shoulder rotator cuff tendinitis) is caused or aggravated ( permanently worsened) by the service-connected cervical spine disability? (b) If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. The examiner must provide a complete rationale for his or her opinions with references to the evidence of record. 4. After all the above development has been completed, readjudicate the remaining claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans’ Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA clearly explaining why you believe that the BVA committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that such letter be as specific as possible. A general statement of dissatisfaction with the BVA decision or some other aspect of the VA claims adjudication process will not suffice. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Director, Management, Planning and Analysis (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM MAR 2015 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the General Counsel (022D) 810 Vermont Avenue, NW Washington, DC 20420 The Office of General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM MAR 2015 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2014, WHICH WILL NOT BE USED IN THE APPEAL OF SS 408 98 6362 FLOSSIE B. PURYEAR - 4 -