Citation Nr: 0201884 Decision Date: 02/27/02 Archive Date: 03/05/02 DOCKET NO. 95-17 070 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a renal disability, for accrued benefits purposes. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Jill W. Mitchell, Esq. ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The appellant is the widow of the veteran who had active service from March 1968 to March 1970. In a May 1990 rating decision the RO denied the veteran's claim for service connection for kidney disease, on the basis that there was no evidence of the veteran's having a kidney problem in service. The veteran was notified of this decision in June 1990. A decision of the Board of Veterans' Appeals (Board) in December 1992 found that the veteran's substantive appeal was untimely filed. A September 1993 RO rating decision determined that new and material evidence was submitted to reopen the claim, but then denied service connection for a kidney condition. The veteran was notified of this decision. His appeal was pending at the time of his death in April 1994. RO rating decisions in November 1994 and March 1995 denied service connection for the cause of the veteran's death, and denied service connection for kidney disease for accrued benefit purposes. The appellant appealed these decisions to the Board. In a July 2000 decision the Board determined that no new and material evidence had been submitted to warrant reopening the claim of entitlement to service connection for renal disease for purposes of accrued benefits; and denied service connection for the cause of the veteran's death on the basis that the claim was not well grounded. The appellant appealed the July 2000 Board decision to the United States Court of Appeals for Veterans Claims (hereinafter, the Court). In a March 2001 Motion for Remand, the Secretary of Veterans Affairs (VA) noted the recent enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (Nov. 9, 2000), which substantially amended statutory provisions concerning the assistance to be afforded claimants of veterans' benefits, and its applicability to cases not finally decided on the date of enactment. The Court granted the Secretary's Motion and vacated the July 2000 Board decision. Thereafter, the case was returned to the Board for action consistent with the Secretary's motion and the Court's Order. In December 2001, the appellant submitted additional evidence directly to the Board and waived initial consideration of the evidence by the RO. With respect to the claim for accrued benefits, the Board must address the question of new and material evidence in the first instance because the issue 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); Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Barnett; Hickson v. West, 11 Vet. App. 374, 377 (1998). In the additional argument and evidence submitted to the Board in December 2001, the appellant's representative also contended that the appellant was entitled to benefits under 38 U.S.C.A. § 1318, raising the issue of entitlement to a total disability rating for over ten years for the first time; and was entitled to service connection for gingivitis. As those issues have not been fully developed for appellate review, they are referred to the RO for such further development as may be necessary. FINDINGS OF FACT 1. By RO rating decision of May 1990, service connection for a kidney disability was denied. 2. By a decision in December 1992, the Board determined that it did not have jurisdiction over the veteran's claim for service connection for a kidney disability because his substantive appeal was untimely. 3. The evidence received since the last final denial of service connection for a kidney disability, and of record at the time of the veteran's death, is cumulative of evidence previously of record. 4. The veteran died August [redacted], 1994. The death certificate shows the immediate cause of death as acute myocardial infract due to coronary artery disease due to arteriosclerosis. A history of kidney transplant was listed as a significant condition contributing to death, but not resulting in the underlying cause. 5. During his lifetime the veteran was not service-connected for any disability. 6. At the time of his death the veteran's application to reopen his claim of entitlement to service connection for renal disease was in appellate status, pending forwarding to the Board. 7. Based on evidence received after the veteran's death, renal disability had its onset in service and played a significant role in his developing arteriosclerosis or cardiovascular heart disease that caused his fatal myocardial infarction. CONCLUSIONS OF LAW 1. The May 1990 RO decision denying service connection for a kidney disability is final. 38 U.S.C.A. § 7105(c) (West 1991) (formerly 38 U.S.C.A. § 4005(c)); 38 C.F.R. § 20.1100 (2001) (formerly 38 C.F.R. § 19.192). 2. Evidence submitted since the 1990 decision is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 2001); 38 C.F.R. § 3.156 (2001). 3. The veteran's renal disability contributed substantially and materially to his death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Assist and Provide Notice As noted above, there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case the appellant's application appears to be intact. She has contended through her representative that she was not advised of the evidence necessary to substantiate her claim for accrued benefits. However, she has been informed of the information necessary to substantiate her claims via the statement of the case, the supplemental statement of the case, and the discussion contained in the Board's previous decision. As will be discussed below, accrued benefits can only be awarded on the basis of evidence of record at the time of the veteran's death. Thus, additional evidence could not serve to substantiate the claim for accrued benefits. There does not appear to be any relevant evidence that has not been associated with the claims folder. The Board finds that all relevant evidence has been obtained with regard to the appellant's claim for entitlement to service connection for the cause of the veteran's death. Hence, no further assistance to the appellant is required to fulfill VA's duty to assist her in the development of the claims. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001). Moreover, the appellant's representative has had an opportunity to present argument to the Board subsequent to the adoption of the VCAA and its implementing regulations. The representative has, in fact, presented argument regarding the VCAA. The implementing regulations are meant to define terms used in the Act, and provide guidance for carrying out the requirements of the Act. The regulations, with the exception of development in the case of attempts to reopen finally denied claims made after August 21, 2001, are not meant to bestow any new rights. 66 Fed. Reg. 45,629 (Aug. 29 2001). Thus as to the non-final claim, the appellant is not prejudiced by the Board's initial application of the regulations to that claim. Since the appellant's claim to reopen was made prior to August 21, 2001, she is not prejudiced by the Board's initial application of the new regulations. II. Factual Background Service medical records at the time of the veteran's pre- induction examination in January 1968 show no defects. In April 1968, the veteran complained of sore ankles and reported ankle pain since the third week of basic training. Upon examination, both ankles were swollen. Service medical records dated in April 1968 show that the veteran complained of pain in his dorsal spine, intermittently for about one year. There was no evidence of musculoskeletal abnormality. The examiner noted back pain, etiology obscure. Service medical records at the time of the veteran's separation examination in November 1969 show no defects. The evidence of record at the time of the final May 1990 rating decision consisted of service medical records; private hospital records dated in 1984, showing end-stage renal disease and dialysis treatment; a VA radiographic report of the veteran's chest and spine, dated in 1984; reports of VA examinations in February 1984; and a March 1990 medical statement by John Reineck, M.D., noting that it was conceivable that the veteran's kidney disease existed as early as 1968. Evidence submitted since the May 1990 decision includes private hospital records dated in March 1981, showing chronic renal insufficiency; and a July 1993 statement by Dr. Reineck, indicating that a large number of kidney disease evolve to end stage renal disease over a long period of time, and that it was possible that the veteran's kidney disease was present in the late 1960's or even before. Evidence received subsequent to the veteran's death includes a death certificate, showing a history of kidney transplant as a significant condition contributing to his death in August 1994; an October 2001 opinion by Craig N. Bash, M.D., noting his review of the veteran's claims folder and medical records (discussed further below); and a notarized affidavit of appellant dated in November 2001, affirming that the veteran looked swollen and puffy when he returned from service, that he no longer wore his wedding ring because his fingers were too swollen, and that he mentioned on several occasions that his shoes felt too tight. Dr. Bash, a neuro-radiologist, concluded that the veteran's demise due to myocardial infarction was a secondary result of his renal disease, and that the veteran's renal disease was first manifested in service as peripheral edema. The opinion was supported with references to medical treatises. III. Accrued Benefits The law and regulation governing claims for accrued benefits provide that, upon the death of a veteran, a lawful surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). Evidence in the file at date of death, as used in 38 C.F.R. § 3.1000(a), includes uncertified statements, which are essentially complete and of such weight as to establish service connection for disease or injury when substantiated by other evidence in file at date of death, or when considered in connection with the identifying, verifying, or corroborative effect of the death certificate. 38 C.F.R. § 3.1000(d)(4)(i). A grant of service connection requires medical evidence of a current disability, medical, or in some cases lay, evidence of in-service incurrence of a disease or injury, and medical evidence of a nexus between the claimed in-service disease or injury and the current disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran's claim for service connection was denied during his lifetime and that denial is final, a survivor claiming entitlement on the basis of accrued benefits, as would the veteran had he lived, is permitted to have a "new adjudication of a prior claim only if there is new and material evidence in the file which has not previously been considered." Zevalkink v. Brown, 102 F.3d 1236, 1242 (1996). In determining whether new and material evidence has been submitted the Board looks to all evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); see 38 U.S.C.A. §§ 5108, 7104.. The Boards 1992 decision constituted a determination that it did not have jurisdiction to decide the veteran's claim. Thus the last final denial of the veteran's claim consists of the RO's May 1990 rating decision. In considering whether the claim may be reopened, a two-step analysis must be employed. First, the Board must determine whether the evidence submitted to reopen the claim is both new and material. Secondly, if, and only if, the Board determines that the evidence is both new and material, the claim is deemed to have been reopened and it must be evaluated on the basis of all of the evidence of record, both new and old. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New 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). The first step in the two-step analysis involves two questions: (1) is the newly presented evidence "new," that is, not previously submitted to agency decisionmakers, and not cumulative or redundant; and if new, (2) is the newly presented evidence "material," that is, does it bear directly and substantially upon the specific matter under consideration, and is it so significant that it must be considered in order to fairly decide the merits of the claim? In addition, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is no requirement, however, that such evidence, when viewed in the context of all of the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Once it is determined that the evidence is not new, no further analysis is required, because evidence cannot be "new and material" if it is not "new." The analysis must end and the claim is not reopened. Vargas-Gonzalez v. West, 12 Vet. App. 321, 327 (1999); Smith v. West, 12 Vet. App. 312, 315 (1999); 38 C.F.R. § 3.156(a) (2001) In this case the evidence received between the May 1990 denial of service connection and the date of the veteran's death is cumulative. Additional medical records confirm the veteran's previously known history of renal disease. Dr. Reineck's July 1993 statement duplicates his March 1990 statement. In both statements he speculated that it was possible that kidney disease was present in service, but that it was also possible that the disease had its onset at some other time. The Court has previously held that statements from doctors which are inconclusive as to the origin of a disease cannot fulfill the nexus requirement for service connection. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The use of cautious language does not always express inconclusiveness in a doctor's opinion on etiology, and such language is not always too speculative for purposes of finding a nexus. Cf. Watai v. Brown, 9 Vet. App. 441 (1996). In Obert v. Brown, the Court held that a medical opinion expressed in terms of "may," also implies "may or may not" and is too speculative to establish a plausible claim. Bostain v. West, 11 Vet. App. 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993). Dr. Reineck's opinions are on their face inconclusive. They are both to the effect that kidney disease could have been incurred in service, before service, or at some time thereafter. In any event, the 1993 opinion, and the other evidence added to the record between May 1990 and the date of the veteran's death, merely echoes evidence considered in the May 1990 decision. As such the newly received evidence is not new and cannot serve to reopen the claim for service connection for kidney disease. IV. Entitlement to Service Connection for the Cause of the Veteran's Death To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service- connected disability to constitute a contributory cause, it is not sufficient to show that it casually share in producing death, but rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. As noted above, the medical opinion of Dr. Bash reflects that the veteran's death due to myocardial infarction was a secondary result of his renal disease. Dr. Bash further concluded that the veteran's renal disease was first manifested in service as peripheral edema. Dr. Bash provided a reason for his opinion, namely that the veteran had gained 13 pounds during his short service tour, which was consistent with nephrotic syndrome and peripheral edema. Such evidence made it plausible that the veteran's renal disability had begun in service. Dr. Bash supported his opinion with references to medical treatises and a review of the claims folder. Dr. Bash further noted that the veteran had a long history of kidney-induced hypertension, which likely caused his cardiovascular heart disease and death. This evidence, as well as medical references, support Dr. Bash's conclusion that the veteran's death due to myocardial infarction was a secondary result of his renal disease. The Board notes that there is some evidence against the appellant's claim. The veteran denied a history of swelling of the face and swelling of the lower extremities in March 1981, and kidney disease was not reported prior to 1981. However, the Board finds that the evidence is in favor of the appellant's claim. The appellant contends that the veteran's denial of any history of swelling was because he had ignored it for so long and had become accustomed to the swelling. She related that she had personally observed swelling dating back to the veteran's period of active service. Perhaps most significantly, Dr. Bash related symptoms documented during service to the subsequently diagnosed kidney disease, and ultimately to the cause of the veteran's death. There are no medical opinions contrary to that of Dr. Bash. Thus the evidence is in favor of the claim and service connection for the cause of the veteran's death is warranted. ORDER New and material evidence has not been submitted, and the claim for service connection for renal disability for accrued benefit purposes is denied. Service connection for the cause of the veteran's death is granted. Mark D. Hindin Member, Board of Veterans' Appeals