Citation Nr: 0005711 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-08 498 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a cardiac disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from July 1984 to April 1988, and from November 1990 to January 1991. By rating decision in March 1992, the Winston-Salem, North Carolina RO denied service connection for a cardiac disorder. The veteran was notified of that decision by letter dated that same month; however, he failed to file a timely appeal therefrom and that action became final. See 38 C.F.R. §§ 20.302, 20.1103. Recently, the veteran requested that the claim for entitlement to service connection for a cardiac disorder be reopened. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 1995 and December 1995 rating decisions by the Winston-Salem, North Carolina RO that determined that no new and material evidence had been submitted to reopen the claim for entitlement to service connection for a cardiac disorder. In June 1998, a hearing was held at the Winston-Salem, North Carolina RO before C.W. Symanski, who is the member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). This case was before the Board in December 1998 when it was remanded for additional development. FINDINGS OF FACT 1. Entitlement to service connection for a cardiac disorder was denied by rating decision dated in March 1992; the veteran did not appeal this denial. 2. Additional evidence submitted since March 1992 does not tend to show the presence of current disability related to service and is not so significant that it must be considered in order to decide fairly the merits of the claim. CONCLUSIONS OF LAW 1. A March 1992 rating decision that denied service connection for a cardiac disorder is final. 38 U.S.C.A. §§ 1110, 1131, 5107, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.303, 3.306, 20.302(a), 20.1103 (1999). 2. Evidence received since March 1992 is not new and material, and the veteran's claim for service connection for a cardiac disorder has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A March 1992 rating decision denied the veteran's claim for service connection for a cardiac disorder, on the basis that a cardiac disorder existed prior to service and was not aggravated by service. Although the veteran was given written notification of this determination that same month, a timely appeal was not thereafter received. The rating decision, therefore, became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (1999). The claim, however, will be reopened if new and material evidence has been submitted since the last final decision on the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The issue of new and material evidence must be addressed in the first instance by the Board because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Once the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Id. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or by the RO). In determining whether new and material evidence has been submitted, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Under applicable regulation: [n]ew and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Evans v. Brown, 9 Vet. App. 273 (1996). It should also be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Second, if it is determined that the evidence is new and material, the Board must reopen the veteran's claim and evaluate the merits of that claim in light of all the evidence, both old and new. Masors v. Derwinski, 2 Vet. App. 181, 185 (1992). In the case at hand, the evidence available for the RO's consideration in March 1992 included: private treatment records dated from 1969 to 1971; a February 1983 pre- enlistment examination report; the veteran's service medical records from his first period of service from 1984 to 1988; VA treatment records dated in 1988; private treatment records dated from 1989 to 1990; the veteran's service medical records from his second period of service from 1990 to 1991; and a February 1992 VA report of examination. Private treatment records dated from 1969 to 1971 note that the veteran had a heart murmur that was first heard at the age of two. Diagnosis was atrial septal defect. A February 1983 pre-enlistment report of medical history notes the veteran's history of open heart surgery at age 5. Upon examination, clinical evaluation of the heart was normal. A September 1984 service medical record notes findings of a systolic murmur, asymptomatic, and occasional arrhythmia. The veteran was cleared for airborne training. Service medical records from the veteran's first period of service note that he declined a separation examination in April 1988. VA treatment records dated in 1988 are negative for complaints or findings of a cardiac disorder. Private treatment records dated from 1989 to 1990 note that the veteran was seen on several occasions with cardiac complaints. Treatment records from Raleigh Community Hospital dated in August 1989 note that the veteran was seen with complaints of rapid heartbeat and shortness of breath; impression included atrial flutter. The veteran underwent cardioversion. Treatment records from Wake Medical Center dated in January 1990 note the veteran's complaints of palpitations; diagnosis included proximal atrial flutter. The veteran was admitted for cardioversion. A February 1990 statement from John S. Kelley, M.D., notes a diagnosis of congenital heart disease. Dr. Kelley noted that the veteran was having problems with recurrent atrial flutter, and recommended that the veteran limit his physical activity for six months. In a November 1990 letter, Dr. Kelley stated that, in his opinion, the veteran was unable to participate in active duty. Service medical records from the veteran's second period of service from November 1990 to January 1991 include December 1990 medical evaluation board (MEB) proceedings. The MEB found that the veteran's atrial septal defect and recurrent atrial flutter existed prior to service and were not aggravated therein. Discharge was recommended, and the veteran was discharged in January 1991. A February 1992 VA examination report notes the veteran's history of secundum atrial septal defect, status post repair at the age of five, recurrent atrial flutter with a rapid ventricular response, and pacemaker implantation in January 1992. The examiner noted the veteran's complaints of shortness of breath with moderate activity. He denied any chest pain. Examination of the heart revealed regular rate and rhythm with no murmur, rub or gallop. A pacemaker was noted in the left upper chest area. EKG revealed occasional sinuous rhythm with pace ventricular beats and occasional AV sequential pacing. Assessment included history of recurrent atrial flutter and status post secundum atrial septal defect repair. Upon consideration of this evidence, the RO denied service connection for a cardiac disorder, holding that a cardiac disorder existed prior to service and was not aggravated by service. The March 1992 rating decision was not appealed and became final. In April 1995, the veteran requested that the claim for entitlement to service connection for a cardiac disorder be reopened. The newly submitted evidence includes: a May 1995 VA examination report; private treatment records dated from 1991 to 1994; and a transcript from a June 1998 Travel Board hearing. The May 1995 VA examination report notes diagnoses for disabilities not herein at issue. No complaints or findings of a cardiac disorder were noted. As this medical evidence is not material to the claim at hand, it does not afford a basis upon which the veteran's claim may be reopened. The private treatment records note continuing cardiac treatment following service; diagnosis included atrial flutter. This additional evidence is new in that it shows treatment for cardiac problems following service, but no findings relating the problem to active military service are given. As the private treatment records are not material to the claim at hand, demonstrating only that the veteran had post-service problems, they do not afford a basis upon which the veteran's claim may be reopened. Furthermore, the private treatment records do not refer to aggravation of a cardiac disorder or the onset of a cardiac disorder during service; therefore, the evidence does not constitute new and material evidence sufficient to reopen the claim of service connection for a cardiac disorder. In addition, the other newly submitted evidence includes a transcript from a June 1998 Travel Board hearing. During the hearing, the veteran testified that he had no knowledge of any heart problems immediately prior to his first period of active service. He further testified that six months after discharge from his first period of active service, he began to experience dizziness and rapid heartbeats. He stated that his heart problem was diagnosed in August 1989. The veteran reported that, in August 1989, his doctor indicated that his military service could have aggravated his heart condition. The Board notes that lay assertions of medical causation do not suffice to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet. App. 211, 214 (1993). Moreover, the veteran was advised during the 1998 hearing that it would be to his benefit to submit medical evidence of a link between the service and current cardiac symptoms, but he has not provided any such medical evidence. In short, because the veteran's opinion is not supported by medical expertise, it is not probative of the issue at hand, namely whether the veteran has a current disability which is attributable to service. Therefore, the veteran's statements do not afford a basis upon which the veteran's claim may be reopened. ORDER New and material evidence not having been submitted, the claim for service connection for a cardiac disorder is not reopened. C. W. SYMANSKI Member, Board of Veterans' Appeals