Decision Date: 10/12/95 Archive Date: 10/11/95 DOCKET NO. 93-22 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for arteriosclerotic vascular/peripheral vascular disease. 2. Entitlement to an increased (compensable) disability rating for service-connected hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to September 1943. In February 1986, the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, denied the veteran's claim for service connection for arteriosclerotic vascular disease as secondary to his service-connected hypertension. The veteran was notified of this decision in March 1986. He did not appeal it. In July 1990, the RO denied a claim for an increased rating for service-connected hypertension on the basis that the vascular hypertension that the veteran had at the time of the rating decision was considered related to his nonservice-connected arteriosclerotic cardiovascular disease rather than to his service-connected hypertension which was a residual of rheumatic fever in service. This appeal arises from April and June 1993 rating decisions of the RO in New Orleans, Louisiana. The April 1993 rating decision denied a claim for an increased (compensable) disability rating for service-connected hypertension and the June 1993 rating decision denied the veteran's petition to reopen his claim for service connection for arteriosclerotic vascular/peripheral vascular disease as secondary to his service-connected hypertension. The Board notes that on his notice of disagreement the veteran raised for the first time a claim for a nervous condition which he believes is caused by the service- connected hypertension. This issue has not been developed for appellate consideration and is not before the Board at this time. This matter is referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his petition to reopen his claim for service connection for arteriosclerotic vascular/peripheral vascular disease as secondary to his service-connected hypertension and for denying his claim for an increased (compensable) disability rating for his service-connected hypertension. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter and for the following reasons and bases, it is the decision of the Board that no new and material evidence has been submitted to reopen the veteran's claim for service connection for arteriosclerotic vascular/peripheral vascular disease. FINDINGS OF FACT 1. The RO denied a claim for service connection for arteriosclerotic vascular disease in February 1986. The veteran was notified of this decision in March 1986, and he did not appeal it. 2. Evidence presented or secured since the February 1986 RO rating decision denying service connection for arteriosclerotic vascular disease is not relevant or probative of whether arteriosclerotic vascular/peripheral vascular disease is related to rheumatic fever in service or to service-connected hypertension, a residual of rheumatic fever in service. 3. Evidence submitted since the February 1986 RO rating decision, when viewed in the context of all the evidence, both old and new, does not raise a reasonable possibility of changing the outcome of the February 1986 rating decision. CONCLUSIONS OF LAW 1. The February 1986 RO decision denying service connection for arteriosclerotic vascular disease is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Evidence received since the RO's February 1986 rating decision denying service connection for arteriosclerotic vascular disease is not new and material, and the veteran's claim for service connection for arteriosclerotic vascular/peripheral vascular disease has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence to Reopen Claim for Service Connection for Arteriosclerotic Vascular/Peripheral Vascular Disease. Service connection for a disability may be established in several ways including on a "secondary" basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1994); Allen v. Brown, No. 93-245 (U.S. Vet. App. Mar. 17, 1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet.App. 216 (1993), and Tobin v. Derwinski, 2 Vet.App. 34 (1991). To reopen a finally denied claim, a veteran must submit new and material evidence. 38 U.S.C.A. § 5108 (West 1991). Evidence is new when not merely cumulative of other evidence on the record. Material evidence is relevant to and probative of the issue at hand and of sufficient weight and significance that there is a reasonable possibility that, when viewed in the context of all of the evidence, both old and new, the additional evidence will change the disposition of the claim. Vecina v. Brown, 6 Vet.App. 519, 522 (1994); Mintz v. Brown, 6 Vet.App. 277, 280 (1994); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In determining whether new and material evidence has been submitted to reopen a finally denied claim, consideration must be given to all of the evidence submitted since the last final denial on the merits of the claim rather than limited to evidence received since the most recent denial of reopening. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). Determining what the "issue at hand" in a case is depends on the evidence that was before the RO when it last denied the claim on the merits and the reasons for its denial. See Colvin, 1 Vet.App. at 174 (Material evidence is relevant to and probative of the issue at hand). In February 1986, the RO cited provisions of VA Manual M21-1, Chapter 50, Paragraph 50.16, Subparagraph (c) in denying the veteran's claim for service connection for arteriosclerotic vascular disease as secondary to the veteran's service-connected hypertension. The veteran's representative in a June 1994 statement notes that the M21-1 does not comply with the Administrative Procedures Act; however, the Board notes that the February 1986 rating decision is not before the Board on appeal and the Board does not have jurisdiction to review that decision. The February 1986 RO denied the veteran's claim for secondary service-connection for arteriosclerotic vascular disease on the basis that the arteriosclerotic vascular disease was due to the veteran's advancing age rather than to his service-connected hypertension. That the veteran currently has arteriosclerotic vascular/peripheral vascular disease or that he is service-connected for hypertension is not disputed in this case. The "issue at hand" is whether the veteran's arteriosclerotic vascular/peripheral vascular disease is related to the rheumatic fever that he had in service or to his service- connected hypertension, which is considered a residual of the rheumatic fever, as opposed to some other cause such as advanced age. Therefore, in order for the veteran's claim to be reopened, evidence must have been presented or secured since the February 1986 RO decision on the merits which is relevant to and probative of this issue and which creates a reasonable possibility of changing the outcome of the February 1986 rating decision. The evidence pertaining to arteriosclerotic vascular/peripheral vascular disease that has been presented or secured since the RO's February 1986 rating decision includes the following, listed in the order in which it has been received by the RO since the 1986 decision: (1) a December 1989 letter from Dr. F.M. Maranto expressing his opinion that the veteran's atrial fibrillation is related to the rheumatic fever he had in service in 1943; (2) a May 1990 letter from Dr. Maranto stating that he had been seeing the veteran for arrhythmias of his heart, which included paroxysmal atrial tachycardia and atrial fibrillation; that, according to a history provided by the veteran, the veteran had had these arrhythmias since he was in the service in 1943; and that the veteran's arrhythmias are controlled with medication, specifically Lanoxin and Lopressor; (3) a May 1990 VA echocardiogram report showing a slight calcification of mitral valve annulus with normal excursion of anterior mitral leaflet and otherwise normal findings; (4) a May 1990 radiology report of the chest showing changes due to aging, minimal tenting of left diaphragm, an impression of a an essentially normal chest, and a diagnosis of minor abnormality; (5) a May 1990 VA cardiac evaluation showing diagnoses of (a) vascular hypertension and arteriosclerotic cardiovascular disease with (b) peripheral arteriosclerosis; (c) status post operative left aorto-femoral bypass; (d) rheumatic heart disease not present on this examination; (e) mitral insufficiency not present; and the examiner's opinion that diagnoses (a), (b), and (c) were not medically related to the history of rheumatic fever; (6) a memorandum to the VA adjudication officer from Dr. Daniel H. Mattson expressing his opinion that there was nothing in the May 1990 VA examination to suggest the presence of rheumatic heart disease; that the slight calcification of the mitral valve annulus was not felt to be of clinical significance; that no arrhythmias were present during examination or on an accompanying EKG; that the history of cardiac arrhythmias would appear unrelated to rheumatic heart disease; that vascular hypertension may very well be related to the mild elevation previously noted, but that several examinations in the claims file showed normal blood pressure readings even when the veteran was not taking medication; (7) an August 1992 VA radiology report of the chest showing chronic obstructive pulmonary disease (COPD); heart size within normal limits; no acute or active pulmonary infiltration; no significant pleural abnormality; minimal calcification in arch of aorta; an impression of COPD and no evidence of active disease; and a diagnosis of minor abnormality; (8) an August 1992 VA Medical Certificate showing a diagnosis of hypertension and a history of a strange feeling preceding blacking out after an 'explosion' in the head; (9) a March 1985 private consultation report from Dr. Maranto in connection with surgery for prostate cancer including an examination (a) of the heart which showed regular sinus rhythm without murmurs, rubs, gallops, or enlargement; (b) of the veins which showed no distention; (c) of the arteries in which the doctor heard a bruit over the lower abdominal aorta and bruits over both femoral aortas; reported no palpation of dorsalis pedis or posterior tibial pulses bilaterally; and recorded an impression including arteriosclerotic vascular disease with peripheral vascular insufficiency; (10) a December 1988 private MRI or radiology report from a Dr. John C. Marshall showing the heart within normal limits of size; (11) a February 1985 examination report from Dr. Maranto showing a history of rheumatic fever in 1943 and moderately impaired dorsalis pedis pulses; (12) progress notes from Dr. Maranto dating from March 1985 to September 1992 showing numerous blood pressure readings between those dates; (13) a December 1992 VA radiology report of the chest showing a cardiac silhouette not enlarged and abnormal findings pertaining to the lungs; (14) a December 1992 VA examination showing diagnoses of (a) hypertensive and arteriosclerotic cardiovascular disease with a supraventricular tachycardia and premature beats; (b) peripheral vascular disease; and (3) probable recent TIA or other CNS accident. The Board concludes that all of the evidence is "new," i.e., it was not before the RO in February 1986, with the exception of Item (9) and a few of Dr. Maranto's progress notes (Item (12) which predate the RO's February 1986 decision and were before the RO at the time of that decision. However, none of the remaining evidence is "material," i.e., relevant to and probative of the issue at hand in the case and raising a reasonable possibility of changing the outcome of the February 1986 RO decision. The Board so concludes because none of the medical evidence shows a relationship between the veteran's arteriosclerotic vascular/peripheral vascular disease and the rheumatic fever that he had in service or to his service-connected hypertension, which is considered a residual of the rheumatic fever. Dr. Maranto, in Item (1), offers an opinion that atrial fibrillation is related to the rheumatic fever but this opinion is not relevant to arteriosclerotic vascular/peripheral vascular disease, or if it is, its relevance is not made clear by the medical evidence. Moreover, when viewed in the context of the all the evidence, both old and new, it does not raise a reasonable possibility of changing the outcome of the RO's February 1986 decision. For example, an atrial fibrillation is "atrial arrhythmia characterized by rapid randomized contractions of the atrial myocardium, causing a totally irregular, often rapid ventricular rate." Dorland's Illustrated Medical Dictionary 627 (27th ed. 1988). The Board notes that the residual effect of rheumatic fever for which the veteran was initially granted service connection was a mitral insufficiency. A mitral insufficiency or regurgitation is "the backflow of blood from the left ventricle into the left atrium, owing to inadequate functioning (insufficiency) of the mitral valve." Dorland's at 842, 1445. However, as early as February 1944, doctors found no evidence of rheumatic heart disease on examination but rather identified mild arterial hypertension as the sole residual of rheumatic fever in service. Therefore, the RO changed the diagnosis of the veteran's service-connected disability to hypertension in March 1944. As recently as May 1990, a VA examiner no evidence on examination of rheumatic heart disease or of mitral insufficiency, and another VA doctor noted that a slight calcification of the mitral valve annulus was not felt to be of clinical significance. Therefore, in light of this evidence, both old and new, the Board finds that Dr. Maranto's opinion is not material evidence. Although Dr. Maranto states that a heart arrhythmia is related to the rheumatic fever in service, there is evidence in the claims file to show that there is no rheumatic heart disease present. Furthermore, Dr. Maranto's opinion makes no connection between rheumatic fever or hypertension and the disability for which the veteran is claiming service connection, namely, arteriosclerotic vascular/peripheral vascular disease. Because none of the other items of evidence show a connection between the claimed disability and an injury or disease in service either, the Board concludes that they likewise are not material. Because the additional evidence received since the RO's February 1986 rating decision is not new and material in light of applicable law, regulations, and decisions of the United States Court of Veteran's Appeals, it does not provide the required evidentiary basis to reopen the veteran's claim. The RO prior denial in February 1986 of service connection remains final. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). Although in October 1993 and May 1995 statements, the veteran requested that the RO obtain medical records from a VA medical center (VAMC) in Shreveport, the Board holds that the RO had no duty to do so in this case because the veteran, although specifying where the records were, did not state why the evidence that would be obtained would be relevant and pertinent to this claim. See Counts v. Brown, 6 Vet.App. 473, 476-77 (1994). ORDER New and material evidence not having been submitted, a petition to reopen a claim for service connection for arteriosclerotic vascular/peripheral vascular disease is denied. II. Increased (Compensable) Disability Rating for Service-connected Hypertension. REMAND In December 1989, the veteran submitted a statement to the RO requesting that his service-connected hypertension be reevaluated because it limited the amount of work he could do. The last time VA had evaluated the veteran's service- connected hypertension was in December 1985. Under these circumstances, the Board concludes that the veteran has presented a well grounded claim for an increased disability evaluation for his service-connected disorder within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). In October 1993 and May 1995 statements, the veteran requested the RO to obtain medical records from a VAMC in Shreveport. In a June 1994 statement, the veteran's representative notes that the RO denied the veteran's claim for an increased (compensable) disability rating for service-connected hypertension by stating, "[E]ntitlement to an increased evaluation for service-connected hypertension may not be granted because the current symptomatology including elevated blood pressure and weak peripheral pulses is the result of the arteriosclerotic process and not associated with the history of rheumatic fever causing elevated systolic pressure shortly after military service." The veteran's representative contends that the RO relied on its own unsubstantiated medical conclusion in denying the veteran's claim for an increased disability rating. The Board agrees with the representative. In a May 1990 VA examination, the examiner concluded that "Diagnoses 1, 2, and 3 are not medically related to history of rheumatic fever." Diagnosis 1 included vascular hypertension and arteriosclerotic cardiovascular disease. The examiner did not comment any further. The RO has apparently interpreted this diagnoses to mean that the arterial hypertension with which the veteran was diagnosed after service as a residual of rheumatic fever was a different hypertension from the hypertension from which he now suffers. This may be a fair interpretation but the Board feels more medical evidence is necessary to be sure that the interpretation of the medical evidence in this case is accurate. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the regional office (RO) for the following development: 1. The veteran should be asked to provide a list of those who have treated him for his service-connected hypertension, and the RO should obtain all records of any treatment reported by the veteran that are not already in the claims file, including the records from the Shreveport VAMC reported by the veteran in October 1993 and May 1995 statements. These records should be associated with the claims file. 2. The RO should schedule the veteran for a special VA hypertension examination. All indicated tests are to be conducted. The examiner must have access to the claims file, and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examination is to be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The examination report must include a detailed account of all manifestations of the veteran's service-connected disability and must disassociate those disorders or disabilities that are not residuals of the service-connected disorder. For example, the examiner should note that, although the veteran's service medical records are missing, he had rheumatic fever in service in 1943 and was service- connected for mitral insufficiency. However, by 1944, doctors could find no evidence of rheumatic heart disease but they did find mild arterial hypertension and the veteran's service-connected disorder was changed from mitral insufficiency to hypertension. The examiner should also review the December 1989 opinion of Dr. Maranto, the May 1990 VA examination, the July 1990 Memorandum from Dr. Daniel H. Mattson to the Adjudication Officer, and the December 1992 VA examination. The examiner should express opinions as to the following matters: (1) What is the likelihood that the hypertension that the veteran now experiences is related to the service-connected hypertension which was thought in the 1940's to be a residual of rheumatic fever in service? Can the veteran's present hypertension be clearly disassociated from the service-connected hypertension such that it can be said with medical certainty that the service-connected hypertension resolved at a certain point and the hypertension that the veteran now experiences began at another point? If so, when did those points occur? (2) What is the likelihood that the veteran had mild arterial hypertension which resulted from rheumatic fever and that that hypertension has been aggravated in recent years by other disorders? What are those other aggravating disorders? (3) From a review of the veteran's medical history as presented by the medical evidence in the claims file, what is the likelihood that the arteriosclerotic cardiovascular and peripheral vascular disease are the result of advancing age or factors other than the rheumatic fever in service? What is the likelihood that the service-connected mild hypertension caused or aggravates the arteriosclerotic cardiovascular and peripheral vascular disease? The examiner's report should include a detailed rationale for all conclusions reached. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1994) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 4. The RO should readjudicate the claim for an increased rating for the veteran's service-connected hypertension based on a complete and contemporaneous examination report and all other relevant medical evidence. Following completion of these actions and, if the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -