BVA9504289 DOCKET NO. 93-10 936 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from November 1969 to February 1970. Service connection was originally denied for heart disease in a rating decision, dated in July 1985. The veteran was notified of this determination by correspondence, dated in the following month. The veteran did not issue a timely appeal following such notification. He attempted to reopen his claim for service connection in December 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the December 1992 rating decision, which confirmed the denial status with respect to the veteran's claim for service connection for heart disease. CONTENTIONS OF APPELLANT ON APPEAL Claiming aggravation of a preexisting heart condition, the veteran and his representative direct the Board's attention to events that followed the veteran's appendectomy surgery, performed during active service. At that time, the veteran reportedly experienced cardiac failure. A cardiac work-up showed enlargement of the left atrium, incomplete right bundle branch block with right axial deviation and mitral stenosis with a Grade I/VI DIASTOLIC murmur. The veteran notes that the absence of symptoms prior to his surgery was in sharp contrast with the findings made immediately thereafter. On this basis, it is argued that the preexisting heart condition was aggravated in service. 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 new and material evidence has been received to reopen the claim for service connection for a heart condition. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The March 1971 reports of treatment from Barnes Hospital, received into the record since the July 1985 rating decision, were not previously of record, are relevant and probative to the issue at hand and when viewed in the context of all the evidence create a reasonable possibility of a change in the outcome of the claim for service connection for a heart condition. CONCLUSION OF LAW New and material evidence has been received to reopen a claim for service connection for a heart condition. 38 U.S.C.A. §§ 1110, 1153, 5107, 5108, 7104 (West 1991); 38 C.F.R. 3.102, 3.156(a), 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran has presented a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all appropriate development has been accomplished and that there is no further duty to assist the veteran in order to comply with the provisions of this section. As noted above, service connection was originally denied for heart disease in an unappealed rating decision, dated in July 1985. This decision was based on the evidence then of record, which included service medical records and the June 1985 report of the initial VA examination. Private medical records on file at that time reflect evaluation and treatment for mitral valve stenosis in the early 1980s. The agency of original jurisdiction held that the veteran's mitral valve stenosis existed prior to the his service and was not aggravated during his 56 days of active duty. Under the law, if new and material evidence is received with respect to a claim that has been previously disallowed, VA shall reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. "New and material evidence" means evidence that was not previously of record and must be more than merely cumulative. Colvin, v. Derwinski, 1 Vet.App 171, 174 (1991). "Material evidence" means evidence that is relevant and probative to the issue at hand and creates a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). Evidence received into the record since the July 1985 denial includes the report of the veteran's March 1971 admission to Barnes Hospital for mitral stenosis. This report reflects that the veteran had been in relatively good health until about two years prior to the hospital admission. At that time, following an appendectomy, he had an episode of "heart failure" and coughed up a large amount of bloody sputum. Cardiac catheterization showed the presence of a "bad valve which needed repair." Over the two years that followed, he experienced a marked decrease in exercise tolerance, dyspnea on exertion, shortness of breath and a sharp stabbing chest pain. It was also noted that the veteran had passed several physical examinations while in high school and on the medical examination for induction into service, without the mention of a murmur. This medical report lends some support to the veteran's allegations that his preexisting heart condition was without significant symptoms prior to the events that took place during his active service and that the condition was aggravated in active service. The veteran also submitted sworn testimony and statements of his family members who attest to the absence of cardiac symptoms prior to the veteran's active service. At this stage of the discussion, the Board observes that for the purpose of determining whether evidence is new and material, the credibility of the evidence, not its weight, is to be presumed. Cox v. Brown, 5 Vet.App. 95, 98 (1993); Justus v. Principi, 3 Vet.App. 510, 513 (1992). The March 1971 report, in conjunction with the veteran's sworn testimony and the corroborative statements of the veteran's family members were not previously of record, and when viewed in the context of the entire record creates a reasonable possibility of a change in outcome. Accordingly, the Board concludes that the veteran has submitted new and material evidence with respect to the issue of entitlement to service connection for heart disease. Hence, a reopened claim has been presented. ORDER The veteran has presented new and material evidence to reopen his claim for service connection for a heart condition. In this regard, the appeal is granted. REMAND Once VA determines that the claimant has produced new and material evidence, the case is reopened and the veteran's claim is evaluated in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Nonetheless, the Board is of the opinion that additional development is necessary prior to a review of the merits of the claim. A medical examination should be obtained to determine the nature and etiology of the veteran's current heart condition. Also, a medical opinion based on a review of the entire clinical record should be obtained in order to determine the medical probability that the cardiac symptoms noted in service constituted an aggravation of a preexisting heart condition. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should afford the veteran a VA cardiovascular examination in order to determine the current nature and etiology of his existing heart disease. All necessary special tests and studies should be accomplished. The examining physician is requested to review the veteran's claims folder and to offer opinions as to medical probability that the veteran currently has heart disease that may be associated with his active service and the medical likelihood that the cardiac symptoms noted in the veteran's active service constituted an aggravation of a preexisting disability-i.e., an increase in disablement beyond the natural progress. 2. The RO then should review the veteran's claim for service connection for heart disease in light of the additional development. If the benefit sought on appeal is not granted, then the veteran and his representative should be provided with a supplemental statement of the case. After he and his representative have been given an opportunity to respond, the case file should be returned to the Board for further appellate review, if necessary. The purpose of this REMAND is to procure clarifying data. Moreover, the Board must ensure that the veteran not prejudiced by a review of the merits at this stage, and thus, it believes that a REMAND in this instance will afford the veteran due process of law. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. LAWRENCE M. SULLIVAN 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 1991), 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The 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).