Citation Nr: 1608763	
Decision Date: 03/04/16    Archive Date: 03/09/16

DOCKET NO.  14-19 754	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2.

2.  Entitlement to an effective date earlier than April 19, 1999, for the grant of service connection for diabetes mellitus type 2.

3.  Whether there is clear and unmistakable error (CUE) in a September 20, 1971, rating decision that failed to adjudicate a claim for service connection for diabetes mellitus type 2.

4.  Entitlement to service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2.


REPRESENTATION

Appellant represented by:	The American Legion
WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel


INTRODUCTION

The Veteran had active service from June 1969 to June 1971.

This case comes to the Board of Veterans' Appeals (Board) from September 2013 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  In June 2015, the Veteran testified during a Board hearing in Washington, DC.  

In November 2011 and February 2012 statements and also at the June 2015 hearing, the Veteran raised the issue of whether there is clear and unmistakable error in a September 20, 1971, rating decision that failed to adjudicate a claim for service connection for diabetes mellitus type 2.  As shown more fully below, the Board has determined that this issue is inextricably intertwined with the earlier effective date claim that is currently on appeal, and the Board has therefore added this claim as an additional subject for current appellate consideration.  

The issues of entitlement to an earlier effective date for the grant of service connection for diabetes mellitus type 2 and service connection for a heart disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  A November 2007 rating decision denied a claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type.  The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal.  

2.  The evidence received since the November 2007 denial relates to unestablished facts necessary to substantiate the claim for service connection for a heart disability, and raises a reasonable possibility of substantiating the claim.  

CONCLUSIONS OF LAW

1.  The November 2007 rating decision that denied a claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2, is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2015).

2.  New and material evidence has been received to reopen the previously denied claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105(c), (d) (West 2014).  However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108 (West 2014).

"New evidence" is evidence that has not previously been reviewed by VA adjudicators.  "Material evidence" is 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 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).

In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened.  Hickson v. West, 12 Vet. App. 247 (1999).

The claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2, was originally denied in a November 2007 rating decision.  The claim was denied because there was no evidence of current disability or a link between any current disability and service or service-connected diabetes mellitus type 2.  The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal.  There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue.  38 C.F.R. § 3.156(b) (2015).  Thus, the decision became final.  

The pertinent evidence received since the November 2007 denial includes VA medical records listing valvular heart disease as an active problem and aspirin as active medication, private medical records showing complaints of chest pain that were treated with nitroglycerin, and the Veteran's testimony that a physician told him that his heart disability is related to his diabetes.  

Presuming the credibility of the evidence, that evidence suggests that the Veteran has a heart disability that may be related to service-connected diabetes mellitus type 2.  The evidence is new, not cumulative, and relates to unestablished facts necessary to substantiate the claim.  Thus, as new and material evidence has been received, the claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2, is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


ORDER

New and material evidence having been received, the claim for service connection for a heart disability, to include as secondary to service-connected diabetes mellitus type 2, is reopened.  To that extent only, the appeal is granted.


REMAND

The Veteran claims he has a heart disability secondary to his service-connected diabetes mellitus type 2.  

A July 2006 VA echocardiogram found left ventricular diastolic dysfunction and mild tricuspid regurgitation with normal right ventricular systolic pressure.  VA medical records carry a diagnosis of valvular heart disease based on the above echocardiogram.  The findings of a September 2007 VA examination were deemed clinically insignificant for heart disease.  Since that time, private medical records show that the Veteran was admitted for complaints of chest pain in March 2013, treated with nitroglycerin, and diagnosed with chest pain syndrome.  

At the June 2015 hearing, the Veteran testified that a physician had told him that his heart disability is related to his diabetes.  

As the record suggests that the Veteran has a heart disability that may be related to his service-connected diabetes mellitus type 2, he should be afforded a current VA examination to ascertain the nature and likely etiology of any heart disability found, particularly its relationship, if any, to the service-connected diabetes mellitus type 2.  

Prior to the examination, any outstanding medical records should be obtained.  The record contains VA treatment notes through January 2014.  Thus, any treatment notes since that time should be obtained.

The Veteran has also raised the issue of whether there is clear and unmistakable error in a September 20, 1971, rating decision that failed to adjudicate a claim for service connection for diabetes mellitus type 2.  As a favorable determination on that issue could affect the issue of entitlement to an earlier effective date for the grant of service connection for diabetes mellitus type 2, the Board finds that the raised issue is inextricably intertwined with the issue on appeal.  Therefore, these issues must be decided together.  See Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116 (1994).  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any VA treatment records since January 2014.

2.  Schedule the Veteran for a VA examination to ascertain the nature and likely etiology of any heart disability found.  The examiner should review the claims file and note that review in the report.  All indicated tests should then be performed.  The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any heart disability was caused or aggravated (worsened beyond the natural progress of the disease) by the service-connected diabetes mellitus type 2.  The examiner should consider the Veteran's statements regarding disability onset and symptoms since active service.  A complete rationale for all opinions should be provided.

3.  Adjudicate the issue of whether there is clear and unmistakable error in a September 20, 1971, rating decision that failed to adjudicate a claim for service connection for diabetes mellitus type 2.

4.  Then, readjudicate the remaining claims.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the case to the Board.  

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).




______________________________________________
Michael J. Skaltsounis 
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs