Citation Nr: 0004704 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-13 860A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for a heart disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served on active duty from February 1936 to February 1958. His decorations include the World War II Victory Medal, the EAM Campaign Medal, the American Defense Medal, and the Army Commendation Ribbon. This appeal arises before the Board of Veterans' Appeals (Board) from a June 1998 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), in which the RO determined that new and material evidence had not been presented to reopen a claim for advanced coronary thrombosis, status post coronary bypass surgery for three vessel disease. In his VA Form 9 (substantive appeal), dated September 1998, the veteran indicated that he wished to delay his request for a personal hearing or a travel board to some day closer to the actual hearing date of his claim. The veteran was accordingly scheduled for a travel board hearing on October 21, 1999. He failed to report for that hearing, and there is no indication from the record as to the reasons therefor. As such, the Board has construed his failure to appear as a withdrawal of his hearing request in accordance with 38 C.F.R. § 20.704(d) (1999). The Board will remand for the issuance of a Statement of the Case the issues of entitlement to service connection for measles, nasopharyngitis, back pain, neck pain, temporal headache, left ear ache, severe migraines, left thumb, right fourth distal finger fracture with sublingual hematoma, tonsillitis, status post tonsillectomy, sinusitis, influenza, angina, right ventricular hypertrophy, ulcers of the penis, left index finger laceration, right knee sprain, defective vision, and kidney stones. These issues were denied by the RO pursuant to a March 1999 rating decision, and the Board has construed a January 2000 written brief presentation (which refers to each of the above-noted issues) as a notice of disagreement thereto. A remand is necessary in order that an appropriate Statement of the Case may be issued. See Manlincon v. West, No. 97-1467 (U.S. Vet. App. March 12, 1999). FINDINGS OF FACT 1. In January 1980, the RO denied service connection for a heart condition by finding that based on the evidence of record, the veteran's current heart condition could not be associated with his military service. The RO also noted that the veteran had not responded to a request for evidence of continuity or treatment for a heart condition within the one year presumptive period. As the veteran did not initiate an appeal of the January 1980 decision, that decision became final. 2. In the January 1980 rating decision, the RO did not discuss post-service medical records, dated in 1961 and 1962, which showed treatment for the veteran at the U.S. Army Hospital at Fort Monroe, Virginia. These records include an abnormal ECG report showing complaints of chest pain and findings of sinus tachycardia and right ventricular hypertrophy on ECG examination. 3. The additional evidence not considered previously by the RO bears directly and substantially upon the issue of entitlement to service connection for a heart disorder, and this evidence is so significant that it must be considered in order to fairly decide the merits of such a claim. 4. The record includes evidence of in-service cardiovascular abnormalities as shown on ECG at the time of separation, and similar findings are shown at the time of a 1961 ECG conducted approximately 4 years following the veteran's discharge. An initial diagnosis of coronary artery disease is shown in 1979, and the veteran is currently undergoing treatment for this disability. CONCLUSIONS OF LAW 1. The additional evidence considered since the time of the last final (January 1980) rating action is new and material to a claim for service connection for a heart disorder, and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). 2. The reopened claim for service connection for a heart disorder is well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999), 38 C.F.R. § 20.1103 (1999). However, 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. 38 U.S.C.A. § 5108 (West 1991). During the course of the veteran's appeal with regard to the instant claim, the United States Court of Appeals for the Federal Circuit rendered its decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the Federal Circuit changed the law as it pertains to the submission of new and material evidence and offered guidance as to how the Court of Appeals for Veterans Claims (Court) should review such determinations made by the Board. First, the Federal Circuit invalidated the test adopted by the Court in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), i.e., that evidence was new and material sufficiently to reopen a claim if the evidence, when considered with the other evidence, would raise a reasonable possibility of changing the outcome. The Federal Circuit proceeded to adopt the standard set forth in 38 C.F.R. § 3.156(a) (1999) as the appropriate standard for determining whether new and material evidence had been submitted. Second, as a result of Hodge and the Federal Circuit's recitation that the determination of whether new evidence is sufficiently material is a "fact-specific determination," "a deferential standard of review of these decisions under 38 U.S.C. § 7261(a) becomes the proper one." Fossie v. West, 12 Vet. App. 1 (1998). In recent decisions and in light of the holding in Hodge, the Court has set forth a three-step analysis which must be applied when a veteran seeks to reopen a final decision based on new and material evidence. See Hodge, supra; Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. The Court has also held that in order to reopen a claim, there must be new and material evidence presented or secured "since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." Evans v. Brown, 9 Vet. App. 273, 285 (1996). Prior RO Decision Service connection for a heart condition was originally denied by the RO in February 1980. The RO found that based on the evidence of record, the veteran's current heart condition could not be associated with his military service. In making its February 1980 decision, the RO considered service medical records, post-service treatment reports, and the report of an October 1979 VA examination. At the time of the RO's February 1980 rating decision, it was noted that the veteran had not responded to a request for evidence of continuity or treatment within the one year presumptive period, and medical records concerning recent treatment showed a history of only three years' duration for his heart condition. Service medical records show that on separation examination in February 1958, the heart and vascular systems were clinically evaluated as normal. It was noted that a chest fluoroscopy had revealed a normal sinus rhythm. There was no evidence of left atrial enlargement, and in the right anterior oblique view there was a slight prominence in the region of the main pulmonary artery. The report shows an impression of slight prominence in the region of the pulmonary conus segment, otherwise no evidence of cardiac chamber enlargement on x-ray. The examiner also indicated that history, physical examination, and cardiac fluoroscopy were normal, and that ECG was suggestive of right ventricular hypertrophy. It was noted that a diagnosis of cardiovascular disease could not be made at this time. A February 1958 ECG report shows a notation of "abnormal ECG because of extreme right axis deviation." Post-service medical records show that in 1979, the veteran was seen with a history of severe progressive angina over the last 3 years and a markedly positive treadmill test. Catheterization revealed severe triple vessel coronary artery disease and abdominal aortic atherosclerosis, and the veteran underwent an aortocoronary bypass times 5. On VA examination in October 1979, the following diagnosis was provided: advanced coronary artery thrombosis, status post coronary bypass surgery for 3 vessel disease; good recovery, operation August 1979; no angina or decompensation. By letter dated February 19, 1980, the veteran was notified that the claim for service connection had been denied. Thereafter, an appeal of the adverse decision was not initiated within the time specified by law, and the January 1980 decision became final. New and Material Evidence As noted, the first step in the three-step analysis for new and material evidence claims is to determine whether new and material evidence has been presented under 38 C.F.R. § 3.156 (1999). According to 38 C.F.R. § 3.156(a) (1999), "New and material evidence" means evidence not previously submitted to agency decision makers 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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. As the January 1980 rating decision represents the last final denial of a claim for service connection for a heart disorder, the Board must conduct a review of the evidence submitted since that time in order to determine whether new and material evidence has been presented. Initially, the Board notes that appears that at the time of the January 1980 rating decision, the available evidence included post-service medical records showing treatment for the veteran at the U.S. Army Hospital at Fort Monroe, Virginia. These records are dated in 1961 and 1962, or after the veteran's discharge from active service in 1958, and this documentation includes an ECG report which shows findings of right ventricular hypertrophy. However, it is unclear whether the RO considered these records at the time of the January 1980 rating decision as these records were not mentioned in that decision and the RO indicated that records showing continuity of treatment in the post-service period were not available. In light thereof, the Board has conducted a review of these records in conjunction with the veteran's claim to reopen the previously denied claim for service connection for heart disease. An October 1961 medical record shows that when seen for treatment at the U.S. Army Hospital at Fort Monroe, the veteran complained of pain in the right chest for a duration of two weeks, with no definite relationship elicited for food, exertion, or cough. Examination was negative except for a soft systolic along the left sternal border and heart rate of 100. An October 1961 EKG shows findings of sinus tachycardia and right ventricular hypertrophy. A February 1962 consultation report shows that the veteran was referred based on findings of right heart hypertrophy. It was noted that previous EKG's had shown similar patterns suggesting right ventricular hypertrophy but chest x-rays had not shown anything abnormal. At this time, the veteran reported a burning sensation bilaterally in the lateral chest and axillae during the past few months. It was concluded that in view of no clinical or x-ray support of the EKG suggestion of right ventricular hypertrophy, the diagnosis of right ventricular hypertrophy should not be made. An impression of no cardiorespiratory disease was given. In a VA Form 21-4138 (Statement in Support of Claim), dated December 1997, the veteran requested that his claim for service connection for coronary artery disease be reopened. Additional medical records show that in recent years, the veteran has been followed for treatment of coronary artery disease by both VA and private physicians. A private hospital summary shows that in El Paso, Texas, in November 1989, the veteran underwent an aortocoronary artery bypass times three as treatment for severe coronary artery disease. A VA discharge summary shows that he was hospitalized in November 1991 with primary diagnoses of hypertension and carotid artery disease, at which time he underwent a right carotid endarterectomy as treatment for right carotid stenosis; a cerebral angiography, and a left heart catheterization with coronary graft angiogram. Private medical records, dated from 1992 to 1998, show that the veteran was followed for atherosclerotic heart disease. In 1997 and 1998, the veteran was followed by VA for hypertension and coronary artery disease. The Board has conducted a review of all additional evidence which was not considered by the RO at the time of the January 1980 rating decision. In the Board's view, the record includes evidence, which had not been considered previously, which is new and material to a claim for service connection for a heart disorder. Specifically, the January 1980 denial of service connection for a heart condition was based, at least in part, on a finding that the veteran had not submitted records showing continuity of treatment for a heart condition since the time of service. As noted, however, the record does not indicate that the RO considered post-service medical records, dated in 1961 and 1962, which clearly demonstrate the manifestation of right ventricular hypertrophy and ECG abnormalities within a few years following the veteran's discharge from active service. These findings are similar to the abnormalities shown on ECG during active service. In the Board's view, this additional evidence bears directly and substantially upon the matter of whether a heart disorder was incurred during the veteran's period of active service. Furthermore, the Board has concluded that this evidence is so significant that it must be considered in order to fairly decide the merits of the veteran's claim for service connection for a heart disorder. For these reasons, the Board finds that the additional documentation not previously considered by the RO at the time of the last final rating decision constitutes evidence which is new and material to a claim for service connection for a heart disorder, and the claim is reopened. Well groundedness of claim for service connection for heart disorder Having reopened the claim for service connection for a heart disorder, the Board is now required to determine whether or not the reopened claim is well grounded. The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that the claim is well grounded, that is, that each claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability as provided by a medical diagnosis, (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). The record indicates that the veteran currently suffers from severe coronary artery disease, which is initially diagnosed in the record in 1979, at which time the veteran underwent coronary artery bypass surgery. Service medical records include an abnormal ECG report with findings of right ventricular hypertrophy at the time of separation, with similar findings shown in 1961 at the time of a medical consultation at a U.S. Army Hospital. Thus, the record demonstrates abnormal cardiovascular findings both during service in 1958 and within a few years thereafter, with subsequent diagnosis and treatment for coronary artery disease which is currently manifested. In the Board's view, therefore, the claim for service connection for a heart disorder is plausible, or capable of substantiation, and the requirements for a well grounded claim have been satisfied. ORDER As new and material evidence has been presented, the claim for service connection for a heart disorder is reopened. The reopened claim for service connection for a heart disorder is well grounded. REMAND Having found the reopened claim for service connection for a heart disorder to be well grounded, the Board is of the opinion that further evidentiary development must be conducted prior to adjudication on appeal. VA has a duty to assist the veteran in the development of facts which are pertinent to a well grounded claim. Littke v. Derwinski, 1 Vet.App. 90 (1990). This includes the duty to obtain medical opinions and other documentation which may be necessary to a determination as to whether the claimed benefits are warranted. The record indicates that on separation examination in February 1958, the veteran underwent an ECG which was abnormal, with findings of extreme right axis deviation which suggested right ventricular hypertrophy. The February 1958 separation examination report indicates that history, physical examination, and cardiac fluoroscopy were normal, and it was felt that a diagnosis of cardiovascular disease could not be made at this time. The record also includes the report of a post-service ECG, conducted in October 1961, after the veteran complained of chest pain. The report shows findings of right ventricular hypertrophy. Although a diagnosis of right ventricular hypertrophy was questioned at the time of a February 1962 consultation, in the Board's view it is necessary to obtain a medical opinion regarding the relationship, if any, between the findings of right ventricular hypertrophy which are shown both during service and within four years thereafter to the subsequent diagnosis and treatment for severe coronary artery disease. On remand, the veteran's claims folder will be made available for review by a VA physician specializing in cardiovascular disorders, in order to obtain the required opinions. In addition, the RO will have the opportunity to conduct further evidentiary development, to include a search for records from the U.S. Army Hospital at Fort Monroe, Virginia, where the veteran was treated in the years shortly following his active duty discharge. Finally, the Board notes that in a March 1999 rating action, the RO denied entitlement to service connection for the following disorders: measles, nasopharyngitis, back pain, neck pain, temporal headache, left ear ache, severe migraines, left thumb, right fourth distal finger fracture with sublingual hematoma, tonsillitis, status post tonsillectomy, sinusitis, influenza, angina, right ventricular hypertrophy, ulcers of the penis, left index finger laceration, right knee sprain, defective vision, and kidney stones. The veteran was notified of that rating action by letter dated April 1999. The record now includes a January 2000 written brief presentation, submitted by the veteran's accredited representative, which refers to each of the above-noted issues. The Board has construed this written brief as a notice of disagreement to the March 1999 rating action. The record before the Board does not reflect that an SOC has been issued regarding the claims at issue. In Manlincon v. West, No. 97-1467 (U.S. Vet. App. March 12, 1999), the U.S. Court of Appeals for Veterans Claims (Court) indicated that in a case in which a veteran expressed disagreement in writing with an RO decision and the RO failed to issue a statement of case, the Board should not refer the issue to the RO, but should remand the issue to the RO for issuance of the Statement of the Case. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the veteran and ask that he provide information as to the dates and locations of any medical treatment he received for heart problems in the years immediately following his discharge from active duty, to include either VA or private sources. Utilizing the information provided by the veteran, the RO should contact all named caregivers and facilities in order to request copies of the veteran's treatment records, apart from those records which have already been associated with the claims folder. The veteran should be informed that of particular relevance to his claim would be any records showing treatment for heart problems or abnormalities either within one year following his discharge from service or during the period between his discharge from service and the diagnosis of coronary artery disease in 1979. Regardless of the veteran's response, the RO should contact the U.S. Army Hospital at Ft. Monroe, VA, where the veteran was treated in the years shortly following his active duty discharge, in order to request copies of any available medical treatment records for the veteran for the period of 1958 to the present time. All records obtained through these channels should be associated with the claims folder. In addition, all correspondence generated in conjunction with this evidentiary development should be associated with the record, to include negative responses to requests for additional documentation. 2. Upon completion of the foregoing, the RO should make the veteran's claims folder available for review by a VA physician specializing in cardiovascular disorders. The VA physician should be asked to review the entire claims folder, including service medical records and post-service records, in order to provide an opinion as to the nature of the relationship, if any, between the in- service findings of extreme right axis deviation and right ventricular hypertrophy on ECG (and similar findings subsequently shown on ECG in 1961) and the subsequent development of coronary artery disease which is initially shown in the record in 1979. The physician- reviewer should be asked to comment on the significance, if any, of the notation of "extreme right axis deviation," on ECG in 1958, as well as the findings of "sinus tachycardia," and "QS AVL," "QR AVR" and right ventricular hypertrophy as shown on ECG in October 1961. The physician-reviewer should also provide an opinion as to the likelihood that the current coronary artery disease is related to or was manifested during the veteran's period of active military service. Complete rationales and bases should be provided for any opinions given or conclusions reached. 3. Thereafter, the RO should review the claims folder in order to ensure that the specified evidentiary development has been completed to the extent possible. If any development remains incomplete, appropriate corrective measures should be taken. If the report of the VA physician-reviewer does not contain all of the requested opinions, it should be returned for completion. 4. Upon finding that the required development has been completed to the fullest extent possible, the RO should review the veteran's claim based on all of the evidence which is now of record, in order to determine whether a favorable outcome is now warranted. If the decision remains adverse, the RO should provide the appellant and his representative with a Supplemental Statement of the Case, along with an adequate period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further action, as appropriate. 5. The RO should furnish the veteran an SOC as to his claims for service connection for measles, nasopharyngitis, back pain, neck pain, temporal headache, left ear ache, severe migraines, left thumb, right fourth distal finger fracture with sublingual hematoma, tonsillitis, status post tonsillectomy, sinusitis, influenza, angina, right ventricular hypertrophy, ulcers of the penis, left index finger laceration, right knee sprain, defective vision, and kidney stones. These claims should not be returned to the Board unless the veteran files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. The purpose of this Remand is to conduct further evidentiary development. The Board intimates no opinion as to the ultimate outcome of the claim on appeal. C. P. RUSSELL Member, Board of Veterans' Appeals