BVA9505139 DOCKET NO. 93-13 319 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim seeking entitlement to service connection for rheumatic heart disease. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active military service from May to November 1958. The veteran filed his initial claim seeking service connection for a heart disorder in August 1966. Service connection for the veteran's rheumatic heart disease was denied in a rating decision of October 1966. Notice of this action was issued to the veteran in November 1966. An appeal was not filed within one year of the notification. Consequently, the October 1966 rating decision became final. The instant matter came before the Board of Veterans' Appeals (the Board) on appeal from a determination of June 1992 by the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA) that new and material evidence had not been submitted to reopen the veteran's claim for service connection for residuals of rheumatic heart disease. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that new and material evidence sufficient to reopen his claim for service connection for residuals of rheumatic heart disease has been submitted. In this regard, evidence, in the form of hearing testimony, written physicians' opinions, and lay statements, has been proffered to show that the veteran's rheumatic heart disease was aggravated by his active military 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 sufficient evidence has been submitted to reopen the veteran's claim for service connection for rheumatic heart disease. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for rheumatic heart disease was denied by a rating decision in October 1966; no timely appeal was filed. 3. The evidence added to the record since the October 1966 rating decision includes letters prepared by the veteran's mother, wife, and other acquaintances, statements prepared by two private physicians, and the testimony presented by the veteran during a personal hearing. 4. Such evidence is new, relevant and probative; there is a reasonable possibility that it, when considered with the other evidence already of record, could change the outcome of the case. CONCLUSION OF LAW The October 1966 rating decision denying service connection for rheumatic heart disease is final; however, new and material evidence has been presented to reopen that claim. 38 U.S.C.A. §§ 1131, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the RO denied the veteran's claim for service connection for rheumatic heart disease in October 1966. He did not file an appeal within one year of notice of the adverse determination. Under applicable law and VA regulations, that decision is final, and the veteran's claim may not be reopened and reviewed unless new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. New and material evidence is evidence 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). Further, "material evidence is relevant and probative of the issue at hand," and in addition, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171 (1991). As a threshold matter, in connection with the veteran's claim to reopen, we note that we have found that the claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that the veteran has presented a claim which is plausible or capable of substantiation. The pertinent evidence available at the time of the RO's decision in October 1966 consisted of the veteran's service medical records, including the reports of induction and separation examinations. The records show that the veteran completed a report of medical history in June 1957, prior to his induction, wherein he reported a history of acute rheumatic fever with no recurrences or sequelae. Thereafter, in May 1958, the veteran was given a physical examination for induction into the military. On that occasion, a military physician again noted the veteran's history of acute rheumatic fever, and observed that there was no evidence of carditis or other sequelae from that disease. Minimal diastolic pressure was noted, with blood pressure recorded as 150/34. Reference was made to chest x-ray, taken in June 1957, which had been interpreted as negative. The veteran was determined to be qualified for induction. The service medical records further demonstrate that on a dental record, dated within 2 weeks of entry on active duty, it was noted that the veteran had had rheumatic heart disease at age 19 (he was then 22 years old). The veteran was examined in October 1958 for evaluation of a heart murmur. On that occasion, the veteran complained of shortness of breath and forceful heart action on exertion, which had not been present during the basic training phase of his military service. He reported that prior to service he had been hospitalized for 5 months for treatment of rheumatic fever and had convalesced for 6 months before returning to work. Physical examination revealed enlargement of the veteran's heart, as well as the presence of aortic diastolic and systolic murmurs. The relevant diagnostic impression was rheumatic heart disease with aortic insufficiency and possible mitral insufficiency. The veteran's case was referred to a Medical Board, which found that the veteran's rheumatic heart disease existed prior to his induction into the military and recommended that he be separated from active service. Based on the relevant clinical data contained in the service medical records, the RO determined that service connection was not warranted for the veteran's rheumatic heart disease, since there was no evidence of aggravation of that disorder during service beyond the natural progress of the disease. The new evidence submitted by the veteran, in support of his claim to reopen, consists of letters and statements prepared by his mother, his wife, his treating physicians, and other family acquaintances, as well as testimony given at an October 1992 hearing on appeal. In her letter, the veteran's mother wrote that the veteran first became ill with rheumatic fever during the Winter of 1954. According to the veteran's mother, he was hospitalized for approximately six months, during which time it was revealed that he had suffered some damage to his heart as a result of the rheumatic fever. The veteran's mother also recalled that he was inducted into the military in 1958. She further noted that the veteran's heart condition was worse when he left the military. In her statement, the veteran's wife recalled that she first met him in the Fall of 1965. According to his wife, the veteran was chronically ill at that time. She further explained that the veteran's mother informed her of his medical history, including the hospitalization in 1954 and his physical disqualification from the military in 1958. The veteran's wife also noted that the veteran's physical condition had deteriorated since she first met him. In a letter that was originally submitted to the Social Security Administration, an individual acquainted with the veteran's circumstances wrote that the veteran was unable to work due to an unspecified illness. Another individual reported that she had visited the veteran's home during the Winter of 1954. She also indicated that she maintained contact with the veteran's mother throughout the course of his treatment for rheumatic fever, and was surprised to learn that he had been drafted into the military, despite the seriousness of his illness. In a brief statement, Dr. Paul R. Lewis noted that his diagnosis of the veteran's condition, following evaluation in January 1990, was rheumatic heart disease. Another physician, Dr. Donald E. Blair, noted that the veteran presented for treatment in April 1992, during which time he related his history of rheumatic fever, and military service. Dr. Blair opined that the veteran's heart condition is "service connected." At the time of his October 1992 hearing, the veteran repeated much of the information contained in his service medical records, including information pertaining to pre-service treatment for rheumatic fever, the absence of any symptoms of rheumatic heart disease during his basic training, and subsequent manifestations, during service, of that disease, such as shortness of breath and the enlargement of his heart. The veteran testified that he received post-service treatment from several physicians whose names he was unable to recall. He did however state that he has received treatment at the VA Medical Center located in Lexington, Kentucky since 1971. A transcript of the veteran's testimony is of record. The United States Court of Veterans Appeals has held that in determining whether new and material evidence justifies reopening of a claim, the evidence should be presumed to be credible. Once the claim is reopened, the presumption as to the credibility of the evidence no longer applies. Justus v. Principi, 3 Vet.App. 510 (1992). With respect to the veteran's claim for service connection for rheumatic heart disease, we do find that new and material evidence has been submitted for the purpose of reopening his claim. Specifically, the statements submitted by the veteran's mother and Dr. Blair are relevant and probative of the issue on appeal. This evidence is not merely cumulative of other evidence of record. This evidence is augmented by the veteran's sworn testimony from the October 1992 hearing, which suggests that his rheumatic heart disease was present at the time of his induction and has persisted since service, thus demonstrating chronicity. Thus, we find that this evidence satisfies the regulatory definition of "new and material," and, must be considered in order to fairly decide the merits of the veteran's claim. 38 C.F.R. § 3.156(a). Accordingly, as new and material evidence has been presented, the veteran's claim for service connection for rheumatic heart disease is reopened and de novo consideration of the claim must be accorded by the RO. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for rheumatic heart disease, and to this extent the appeal is granted, but is subject to the following remand action. REMAND In view of the above determination that the veteran's claim seeking entitlement to service connection for rheumatic heart disease is reopened, the RO must be provided an opportunity to conduct a de novo review of the reopened claim, based on the evidence in its entirety. Bernard v. Brown, 4 Vet.App. 384 (1993). The Board notes, moreover, that in conducting such de novo review, it is imperative that the RO apply the presumption of soundness at entry to this case, pursuant to the provisions of 38 C.F.R. § 3.304(b) (1994). That regulation provides, in pertinent part, that when considering whether the presumption of soundness at entry applies, only conditions recorded in examination reports are to be considered as noted. History of preservice existence of conditions does not constitute a notation of such conditions. In this regard, the attention of the RO is directed to a recent, relevant decision of the Court of Veterans Appeals in Crowe v. Brown, No. 93-550 (U.S. Vet. App. Dec. 20, 1994). The VA has a duty to assist the veteran in the development of facts pertinent to his well grounded claim. 38 U.S.C.A. § 5107(a). As noted above, the veteran testified during his October 1992 hearing that he has received treatment at the Lexington, Kentucky VA Medical Center (VAMC Lexington) since 1971. Currently, there are no medical records from that facility on file. We further note that our review of the claims folder shows that the veteran has not been examined by the VA. In light of the questions concerning possible aggravation of his rheumatic heart disease during service, the Board finds that development of additional evidence is needed to satisfy the VA's duty to assist the veteran in connection with his claim. Accordingly, the case is REMANDED to the RO for the following actions: 1. In view of the remarks of the veteran and his mother relating to extensive pre- service hospitalization for rheumatic fever and rheumatic heart disease, the RO should attempt to secure the records of such hospitalization or other medical treatment, for inclusion in the record. As well, the veteran should be requested to provide the names and addresses of any other medical care providers, VA or private, who furnished treatment to him for rheumatic heart disease subsequent to military service. Efforts should be made to secure these records. 2. In the event the veteran has received additional treatment from Drs. Lewis and Blair, those records should be obtained and made a part of the claims folder. 3. The RO should request that VAMC Lexington furnish all up-to-date records related to treatment of the veteran at that facility since 1971. All records obtained from VAMC Lexington should also be associated with the claims folder. 4. After all the development requested above has been accomplished, the RO should schedule the veteran for a VA cardiology examination. The examiner should review the claims folder, particularly the history of rheumatic fever and rheumatic heart disease prior to service. All necessary and appropriate diagnostic tests and procedures should be conducted and the findings reported in accordance with the applicable provisions of VA's Physician's Guide for Disability Evaluation Examinations. Following review of all pertinent clinical data, the examiner should comment whether rheumatic heart disease existed prior to service and, if it did, whether it increased in severity during service. 5. The RO should then consider the issue on appeal. Based on the evidence received as a result of this remand action, the RO should consider whether the presumption of soundness at entry is applicable in this case and, if so, whether it has been rebutted by clear and unmistakable evidence that rheumatic heart disease existed prior to service. If appropriate, a determination should be made on whether there was an increase in severity of the disease and, if so, whether such increase was due to natural progress of the disease. These determinations should be made pursuant to 38 C.F.R. §§ 3.304(b), 3.306 (1994). 6. If the veteran's claim remains denied, both he and his representative should be furnished with a supplemental statement of the case, which includes a recitation of the newly developed evidence and citation to all relevant law and regulations, including those set forth above. The veteran should be afforded the requisite 60 days to respond to the supplemental statement of the case. 38 C.F.R. § 20.302(c) (1993). Thereafter, the case should be returned to the Board for further appellate consideration, if in order. By its REMAND, the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted. The purpose of this REMAND is to procure additional evidence and to ensure due process of law. N. R. ROBIN 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. 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. This 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) (1993).