Citation Nr: 18149589 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-31 731A DATE: November 9, 2018 ORDER New and material evidence has been received, the claim of entitlement to service connection for a heart disability is reopened. Entitlement to service connection for ventricular arrhythmia is granted. Entitlement to service connection for hypertension (claimed as high blood pressure) is dismissed. Entitlement to service connection for diabetes mellitus is dismissed. Entitlement to service connection for peripheral neuropathy is dismissed. FINDINGS OF FACT 1. In a final May 1988 rating decision, the RO denied entitlement to service connection for heart disability; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final May 1988 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for heart disability. 3. Resolving all reasonable doubt in the Veteran’s favor, his heart disability, specifically ventricular arrhythmia, had its onset during active service. 4. In an August 2018 correspondence, the Veteran requested to withdraw his claims for service connection for hypertension, diabetes mellitus, and peripheral neuropathy. CONCLUSIONS OF LAW 1. The May 1988 rating decision that denied the claim for service connection for a heart disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a heart disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a heart disability, specifically ventricular arrhythmia, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for withdrawal of a Substantive Appeal by the Veteran with respect to the issues of entitlement to service connection for hypertension, diabetes mellitus, and peripheral neuropathy have been met. 38 U.S.C. § 7105 (b)(2) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Given the Board’s favorable disposition of the claim for service connection for a heart disability, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c) (2012); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Additionally, 38 C.F.R. § 3.156 (b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161 - 62 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 1988 rating decision, the RO denied the Veteran’s claim for service connection for a heart disability. In May 1988, the Veteran was advised of the rating decision and his appellate rights. The Veteran did not file a NOD. In addition, no new and material evidence pertaining to the Veteran’s claim was received within one year of the May 1988 rating decision. Therefore, the May 1988 rating decision is final. In the May 1988 rating decision, the RO denied the Veteran’s claim for service connection for a heart disability because the evidence did not show that his heart disability, ventricular arrhythmia, had been permanently aggravated by his military service, or that he had been diagnosed with an organic heart disease in service or within one year of service. The evidence of record at the time of the decision consisted of service treatment records, military personnel records,and a September 1986 private treatment record. Since the Veteran’s last prior final denial in May 1988, the record includes VA treatment records, to include an October 2012 VA examination, private treatment records, to include an October 2017 private medical opinion, and lay statements. All of this evidence indicates that the Veteran did not have a pre-existing ventricular arrhythmia. Additionally, the Veteran submitted an October 2017 private medical opinion from Dr. M. B. Shoag, in which the physician opined that the Veteran’s ventricular arrhythmia began during service and did not pre-exist service. The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The VA treatment records, private treatment records, and lay statements are presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a heart disability is reopened. Service Connection 1. Entitlement to service connection for a heart disability The Veteran contends that his heart disability, specifically ventricular arrhythmia, is due to his military service. The Board concludes that the Veteran has a current diagnosis of ventricular arrhythmia that is related to his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The June 1976 enlistment examination does not show a diagnosis of, complaints of, or treatment for a heart disability. Service treatment records show that the Veteran was diagnosed with a benign murmur and it was noted that he had had an irregular heartbeat since childhood. In October 1981, he was diagnosed with ventricular arrhythmia. In the January 1985 separation examination, the Veteran reported palpitation or pounding heart. In an October 2012 VA examination, the Veteran was diagnosed with ventricular arrhythmia. The Veteran reported that the Veteran had been hospitalized for ventricular tachycardia and had undergone ablations in 2010 and 2011. The examiner found that the Veteran’s tobacco use and obesity limited his level of metabolic equivalents. In an October 2017 letter, Dr. Shoag opined that the Veteran’s arrhythmia began during service and was unrelated to murmurs. He stated that while service treatment records noted that the Veteran had a heart murmur prior to service, it was diagnosed as a benign flow murmur in service and there were no indications that the Veteran had arrhythmias prior to service. Dr. Shoag found that the Veteran became symptomatic of ventricular arrhythmia during service as evidenced by worsening dizziness, lightheadedness, and pre-syncopal episodes. Additionally, he noted that the Veteran’s in-service EKG and cardiac rhythm strips noted supraventricular and ventricular arrhythmias. In light of the foregoing the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s ventricular arrhythmia had its onset in service. Resolving reasonable doubt in the appellant’s favor, service connection for ventricular arrhythmia is granted. See 38 C.F.R. § 3.102; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). 2. Entitlement to service connection for hypertension (claimed as high blood pressure), diabetes mellitus, and peripheral neuropathy A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). The withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. In an August 2018 correspondence, the Veteran’s representative notified the Board of the Veteran’s desire to withdraw his appeals for his disability claims for service connection for hypertension, diabetes mellitus, and peripheral neuropathy. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues, and they must be dismissed. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel