Citation Nr: 0810098 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-13 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to warrant reopening a claim of entitlement to service connection for post traumatic stress disorder (PTSD), for accrued benefits purposes. ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from December 1967 to January 1972. The veteran died on February [redacted], 2004; the appellant is his daughter and was his guardian. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. By a unappealed decision dated in July 1998, the RO determined that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for PTSD. 3. The veteran filed to reopen the claim of entitlement to service connection for PTSD in July 2003, but he died on February [redacted], 2004, while the claim was pending. 4. A timely claim for accrued benefits was filed in March 2004. 5. Additional evidence received since the RO's July 1998 denial, and of record at the time of the veteran's death, is cumulative of evidence previously of record, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence submitted since the RO's 1998 denial, and prior to the date of the veteran's death, is not new and material; and the claim for service connection for PTSD, for accrued benefit purposes, is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007), does not apply in the instant case. The only issue before the Board is whether there was evidence in VA's possession on or before the date of the veteran's death to support appellant's claim for accrued benefits. Moreover, evidence submitted by the appellant after the veteran's death may not be considered. 38 C.F.R. § 3.1000(d)(4) (2007). Law and Regulations Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2007). Claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary's claim to reopen a finally disallowed claim based upon new and material evidence or a deceased beneficiary's claim of clear and unmistakable error in a prior rating or decision. Any new and material evidence must have been in VA's possession on or before the date of the beneficiary's death. 38 C.F.R. § 3.1000(d)(5) (2007) Evidence in the file at the date of death means evidence in VA's possession on or before the date of the beneficiary's (in the instant case, the veteran's) death, even is such evidence was not physically located in the VA claim folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2007). Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. See 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). While an accrued benefits claim is separate from the veteran's service connection claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the appellant is not entitled to accrued benefits. Factual Background and Analysis At the time of the veteran's death, there were two pending claims. These claims were (1) entitlement to service connection for alcohol dependence; and, (2) a request to reopen a claim of entitlement to service connection for PTSD. The appellant did file an application for accrued benefits within one year of the veteran's death. However, the appellant's substantive appeal of April 2005 was limited to the PTSD claim. As will be explained below, new and material evidence had not been submitted to warrant reopening the PTSD claim. As such, there were no unpaid benefits to which the veteran was entitled to at the time of his death. A claim of entitlement to service connection for PTSD was denied by a rating action in 1993, which became a final decision because it was not appealed. 38 U.S.C.A. § 7105. Thereafter, the veteran sought to reopen the claim and, in a July 1998 rating action, reopening the claim was determined as not warranted because the veteran had not submitted new and material evidence. The veteran did not appeal that latter determination, and it also became final. 38 U.S.C.A. § 7105. More recently, the veteran again sought to reopen the claim in July 2003. The veteran, through the current appellant, was informed as to the necessity of submitting new and material evidence. In correspondence dated September 30, 2003 and October 3, 2003, VA explained to the veteran that the record did not show credible supporting evidence of a in service stressor necessary to support entitlement to service connection for PTSD. The veteran died on February [redacted], 2004. Even though a rating decision of March 8, 2004 determined that new and material evidence had not been submitted, the claim was actually pending at the time of the veteran's death. The present appeal derives from a claim for accrued benefits filed in March 2004. VA law for claims received after August 29, 2001, provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) a link, established by medical evidence, between current PTSD symptoms and an in- service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2007). The evidence of record at the time of the July 1998 determination reflects that the veteran had service in Vietnam in a support capacity rather than in a combat role per se. Accordingly, credible evidence of an in-service stressor was initially necessary to reopen the claim. PTSD was included among the diagnoses of record over the years. During the period between that determination and the veteran's death, the veteran submitted statements in July 2003 and August 2003 to the effect that he saw action in Vietnam. Also associated with the claims folder were VA outpatient treatment records dated beginning in 2000. He submitted no supporting evidence prior to his death relating to stressors. It is well settled that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The appellant appears to urge that entitlement to service connection for PTSD is warranted on the basis of the multiple diagnoses of PTSD. However, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 396 (1996). The appellant filed a timely claim for accrued benefits. Thus, the Board must adjudicate the issue pending at the time of the veteran's death for purpose of accrued benefits. However, the applicable regulation permits the Board to address only the evidence of record that was associated with his claims folder at the time of his death. See 38 C.F.R. § 3.1000(a). The evidence that will be discussed below is therefore limited only to that which was part of the veteran's file up to the date of his death in February 2004. At the point when the veteran was deceased, credible supporting evidence of alleged stressors or combat service had not been submitted. The Board finds that the evidence added to the claims file from the period between July 1998 and February [redacted], 2004 does not relate to an unestablished fact necessary to substantiate the claim, that it is either cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and that it does not raise a reasonable possibility of substantiating the claim. It is not "new and material" and the claim is not reopened. Additional evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence was not received, the claim for service connection for PTSD, for accrued benefit purposes, is not reopened. ORDER New and material evidence has not been received; the application to reopen the claim for service connection for PTSD, for accrued benefits purposes, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs