Citation Nr: 18132305
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 12-03 017
DATE:	September 6, 2018
ORDER
New and material evidence has been received to reopen the claim of entitlement to service connection for a heart murmur, and the request to reopen is granted.
REMANDED
Entitlement to service connection for a heart murmur is remanded.
FINDING OF FACT
The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a heart murmur.
CONCLUSION OF LAW
New and material evidence has been received to reopen the claim of entitlement to service connection for a heart murmur.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1969 to February 1971.  This matter comes before the Board on appeal from a March 2010 Regional Office (RO) rating decision.  In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge.
Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart murmur
Rating actions from which an appeal is not perfected become final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.
A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim.  See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994).
New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion.  Id.
For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Congenital or developmental defects are not diseases or injuries, and therefore they may not be service-connected.  38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90 (July 18, 1990).  The presumption of soundness does not apply to congenital or developmental defects.  Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009).
This case was originally denied in an April 1971 rating decision because the Veteran’s functional heart murmur was determined to be a constitutional or developmental abnormality, which is not a disability under the law.  The Veteran was notified of this decision in April 1971, but he did not appeal.  Therefore, this decision became final and new and material evidence is required to reopen it.
The April 2009 rating decision found that new and material evidence had not been received to reopen the claim because heart murmurs are considered congenital or developmental defects, which are unrelated to service and not subject to service connection.  The Veteran was notified of this decision in April 2009, but he did not appeal.  Therefore, this decision became final and new and material evidence is required to reopen it.
At his May 2018 Board hearing, the Veteran testified that his doctor has told him that “the high blood pressure is because of the heart murmur.”  (See Board hearing transcript, page 7.)  He also testified that his hypertension was diagnosed a couple of months after service.  (See Board hearing transcript, pages 12-13.)  The Board notes that a March 1971 VA examination report notes blood pressure readings of 126/84, 130/84, and 126/84.  Pre-hypertension is defined as systolic pressure between 120mm and 139mm and diastolic pressure from 80mm to 89mm.  M21-1 III.iv.4.G.3.d.  
The hearing testimony evidence is new because it was not of record at the time of the April 2009 rating decision.  It is material in that it is evidence that suggests an abnormal heart murmur.  Therefore, new and material evidence has been received, and the claim of entitlement to service connection for a heart murmur is reopened.
REASONS FOR REMAND
Entitlement to service connection for a heart murmur is remanded.
Having reopened the Veteran’s claim, the Board finds it necessary to remand it so that the Veteran may undergo a VA examination to determine whether he has a current disability subject to service connection that is related to service.  
In addition, the Veteran testified at his Board hearing that he sought treatment at the VA Medical Center (VAMC) in Birmingham in 1971.  (See Board hearing transcript, pages 9-10.)  The Veteran has also been treated at the Shoals Area Community Based Outpatient Clinic (CBOC).  (See Board hearing transcript, page 11.)  On remand, the RO/Appeals Management Center (AMC) should attempt to obtain these records.
The matter is REMANDED for the following action:
1. Obtain all relevant VA treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in April 2016.  These efforts should specifically include attempts to obtain VA medical records from the Birmingham VAMC that were created in 1971 immediately following the Veteran’s separation from service, and any records from the Shoals Area CBOC.  
2. Schedule the Veteran for an appropriate VA examination for the claim of entitlement to service connection for a heart murmur.  The Veteran’s file should be made available for review by the examiner.  The examiner should review the file and this fact should be noted in the accompanying medical report.  
The VA examiner is requested to address the following:
a) State all of the Veteran’s current heart diagnoses.
b) For any current diagnoses, to include any valvular heart disease and hypertension, is it at least as likely as not (50 percent probability or greater) etiologically related to a heart murmur?  In so opining the examiner is asked to do the following: (1) explain the difference between an “innocent murmur” and an “abnormal murmur”; and (2) indicate whether the Veteran’s heart murmur is reflective of any valvular heart disease and in so doing, explain the significance, if any, of the March 1971 VA examination report blood pressure readings of 126/84, 130/84, and 126/84. 
The examiner should set forth all examination findings, along with a complete rationale for the conclusions reached.

 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Elizabeth Jalley, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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