Citation Nr: 0810860	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  06-04 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines


THE ISSUE

Whether new and material evidence has been submitted to 
reopen the claim for service connection for the cause of the 
veteran's death.


INTRODUCTION

The veteran had recognized service from December 1941 to 
April 1942, and from January 1946 to February 1946.  He was a 
prisoner of war (POW) of the Japanese government from April 
10, 1942, to April 11, 1942.  The veteran died in September 
1985.  The appellant is his widow.

This matter has come before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions dated in July 2005 of 
the Manila, Philippines, Department of Veterans Affairs (VA) 
Regional Office (RO) which denied service connection for the 
veteran's cause of death.


FINDINGS OF FACT

1.  Service connection for the cause of the veteran's death 
was denied in a July 1986 rating decision, and the appellant 
was notified of this decision in August 1986.

2.  Evidence received since August 1986 is cumulative and 
redundant of previously submitted evidence, and does not 
raise a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

Evidence added to the record since the final August1986 
decision is not new and material; thus, the claim of 
entitlement to service connection for the cause of the 
veteran's death is not reopened.  38 U.S.C.A. §§ 5108, 7105 
(West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initial Matters: Duty to Notify and Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper VCAA notice must inform the claimant of 
any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  Pelegrini v. Principi, 18 Vet. App. 
112 (2004).

VCAA notice should be provided to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 
(2004); see also Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. 
Cir. 2006) (the United States Court of Appeals for the 
Federal Circuit stated that the purpose of 38 U.S.C. § 
5103(a) and 38 C.F.R. § 3.159(b) is to require that the VA 
provide affirmative notification to the claimant prior to the 
initial decision in the case as to the evidence that is 
needed and who shall be responsible for providing it.).

Regarding the application to reopen the claim for service 
connection for the cause of the veteran's death, the RO 
provided a VCAA notice letter to the appellant in April 2005, 
prior to the initial adjudication of the claim.  The letter 
notified the appellant of what information and evidence must 
be submitted to substantiate a claim to reopen and a claim 
for service connection, as well as what information and 
evidence must be provided by the appellant and what 
information and evidence would be obtained by VA.  She was 
also told to inform VA of any additional information or 
evidence that VA should have, and was told to submit evidence 
in support of the claim to the RO.  The content of the 
letters complied with the requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b).

The Board notes that, although the appellant was informed of 
what information and evidence must be submitted to 
substantiate a claim to reopen, she was given this notice 
with the qualification that it applies "if" her claim had 
been previously denied.  Thus, as she was not specifically 
told that her claim had been denied in the past, or the 
reason for that denial, this notice does not satisfy the 
requirements of the holding in Kent v. Nicholson, 20 Vet. 
App. 1 (2006). 

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.2007), the 
Federal Circuit held that any error by VA in providing the 
notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b)(1) is presumed prejudicial and that once an error is 
identified by the Veterans Court (Court of Appeals for 
Veterans Claims), the burden shifts to VA to demonstrate that 
the error was not prejudicial.  The Federal Circuit reversed 
the Court of Appeals for Veterans Claims' holding that an 
appellant before the Court has the initial burden of 
demonstrating prejudice due to VA error involving: (1) 
providing notice of the parties' respective obligations to 
obtain the information and evidence necessary to substantiate 
the claim: (2) requesting that the claimant provide ant 
pertinent evidence in the claimant's possession; and (3) 
failing to provide notice before a decision on the claim by 
the agency of original jurisdiction.  See also Simmons v. 
Nicholson, No. 06-7092 (Fed. Cir. May 16, 2007).

Although VA erred by not providing notice to the appellant 
that her claim had been previously denied, or the basis for 
that denial, the record reflects that she was subsequently 
advised of these facts in a December 2005 Statement of the 
Case (SOC).  She was told that her claim had been denied in 
July 1986, and that she had to submit new and material 
evidence, which, in this case, was evidence linking the 
disabilities that caused his death to his military service.  
As noted, she had been previously advised of the general 
definitions of "new" and "material" evidence in the April 
2005 notice, as well as how to substantiate the underlying 
claim for service connection.  The appellant was provided 
ample opportunity to respond to that correspondence and to 
the SOC, and, over the course of the appeal, has had multiple 
opportunities to submit and identify evidence.  The appellant 
has been provided a meaningful opportunity to participate 
effectively in the processing of his claim by VA.  While the 
appellant does not have the burden of demonstrating 
prejudice, it is pertinent to note that the evidence does not 
show, nor does the appellant contend, that any notification 
deficiencies, either with respect to timing or content, have 
resulted in prejudice.

The Court in Dingess/Hartman held that the VCAA notice 
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) 
apply to all five elements of a "service connection" claim. 
As previously defined by the courts, those five elements 
include: (1) veteran status; (2) existence of a disability; 
(3) a connection between the veteran's service and the 
disability; (4) degree of disability; and (5) effective date 
of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).

Element (1) is not at issue.  Regarding elements (2) and (3) 
(current existence of a disability and relationship of such 
disability to the veteran's service), the appellant was 
provided with notice of what type of information and evidence 
was needed to substantiate the claim for service connection 
for the cause of death and a claim to reopen.  Regarding 
elements (4) and (5) (degree of disability and effective 
date), the appellant was not provided with notice of the type 
of evidence necessary to establish a disability rating or 
effective date for the disability on appeal.  Despite the 
inadequate notice provided to the appellant on these latter 
two elements, the Board finds no prejudice to the appellant 
in proceeding with the issuance of a final decision.  In that 
regard, as the Board concludes below that the claim for 
service connection for the cause of the veteran's death is 
not reopened, any questions as to the appropriate disability 
rating or effective date to be assigned are rendered moot.

The Board finds that all relevant evidence has been obtained 
with regard to the appellant's claim to reopen, and that the 
duty to assist requirements have been satisfied.  The VCAA 
imposes a duty upon VA to seek relevant treatment records in 
all cases, but there is no identified relevant evidence that 
has not been accounted for.  38 C.F.R. § 3.159(c)(1)-(3).  
Until a claim is reopened, VA does not have a duty to provide 
a medical examination or obtain a medical opinion.  See 38 
C.F.R. § 3.159(c)(1). 

Legal Criteria

Service Connection

In general, applicable laws and regulations state that 
service connection may be granted for disability resulting 
from a disease or injury incurred in or aggravated by 
military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.303 (2007).  Certain diseases, such as nephritis, will be 
presumed to have been incurred in service if manifested to a 
degree of 10 percent within one year after service.  38 
U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 
3.309 (2007).

If a veteran is a former prisoner of war, certain diseases 
shall be service connected if manifest to a degree of 10 
percent or more at any time after discharge or release from 
active military, naval, or air service even though there is 
no record of such disease during service, provided the 
rebuttable presumption provisions of § 3.307 are also 
satisfied.  38 C.F.R. §§ 3.307(a)(5), 3.309(c).

Service connection may also be granted for a disease first 
diagnosed after discharge when all of the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (2007).

The surviving spouse of a veteran who has died from a 
service-connected disability or compensable disability may be 
entitled to receive dependency and indemnity compensation.  
38 U.S.C.A. § 1310 (West 2002).  In order to establish 
service connection for the cause of the veteran's death, the 
evidence must show that a service-connected disability was 
either the principal or a contributory cause of death.  The 
issue involved will be determined by exercise of sound 
judgment, without recourse to speculation, after a careful 
analysis has been made of all the facts and circumstances 
surrounding the death of the veteran, including, 
particularly, autopsy reports.  38 C.F.R. § 3.312 (2007).

The service-connected disability will be considered as the 
principal (primary) cause of death when such disability, 
singly or jointly with some other condition, was the 
immediate or underlying cause of death or was etiologically 
related thereto.  A contributory cause of death is inherently 
one not related to the principal cause.  In determining 
whether the service-connected disability contributed to 
death, it must be shown that it contributed substantially or 
materially; that it combined to cause death; that it aided or 
lent assistance to the production of death. It is not 
sufficient to show that it casually shared in producing 
death, but rather it must be shown that there was a causal 
connection.  38 C.F.R. § 3.312.

Once the evidence has been assembled, it is the Board's 
responsibility to evaluate the evidence.  38 U.S.C.A. § 
7104(a).  The Secretary shall consider all information and 
lay and medical evidence of record in a case before the 
Secretary with respect to benefits under laws administered by 
the Secretary.  When there is an approximate balance of 
positive and negative evidence regarding any issue material 
to the determination of a matter, the Secretary shall give 
the benefit of the doubt to the claimant.  38 U.S.C.A. § 
7105; 38 C.F.R. §§ 3.102, 4.3.  In Gilbert v. Derwinski, 
1 Vet. App. 49, 54 (1990), the Court stated that "a veteran 
need only demonstrate that there is an 'approximate balance 
of positive and negative evidence' in order to prevail."  To 
deny a claim on its merits, the evidence must preponderate 
against the claim.  See also Alemany v. Brown, 9 Vet. App. 
518, 519 (1996).

New and Material Evidence

A final decision cannot be reopened unless new and material 
evidence is presented.  Pursuant to 38 U.S.C.A. § 5108.  The 
Secretary must reopen a finally disallowed claim when new and 
material evidence is presented or secured with respect to 
that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).

For claims filed on and after August 29, 2001, 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) (2007).

Only evidence presented since the last final denial on any 
basis (either upon the merits of the case, or upon a previous 
adjudication that no new and material evidence had been 
presented), will be evaluated in the context of the entire 
record.  Evans v. Brown, 9 Vet. App. 273 (1996).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

Analysis

In a July 1986 rating decision, the RO denied entitlement to 
service connection for the cause of the veteran's death on 
the basis that there was no evidence of the veteran's cause 
of death, which was listed on the death certificate as 
bilateral pulmonary emphysema and intestinal gangrene, in 
service or within one year from service separation.  The 
appellant was notified of this decision in an August 1986 
letter and she did not file an appeal.  Thus, it is final. 
See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.

At the time of that decision, the evidence of record included 
a processing affidavit dated in January 1946, which showed no 
record of any wounds or illnesses between December 1941 and 
January 1946.  The record also included  the veteran's 
certificate of death, which listed the cause of his death as 
bilateral pulmonary emphysema and intestinal gangrene.  

In order to reopen this claim, new and material evidence must 
be submitted. 38 U.S.C.A. § 5018; 38 C.F.R. § 3.156.  This 
evidence is presumed credible for the purposes of reopening 
an appellant's claim, unless it is inherently false or untrue 
or, if it is in the nature of a statement or other assertion, 
it is beyond the competence of the person making the 
assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. 
Principi, 3 Vet. App. 510 (1992).

After having carefully reviewed the evidence of record, the 
Board finds that the appellant has not presented evidence 
since the July 1986 rating decision that raises a reasonable 
possibility of substantiating the claim for service 
connection for the cause of the veteran's death.  Since 
filing to reopen her claim, the appellant has reiterated her 
own contentions that the veteran's death was related to 
service, and she has submitted additional copies of his death 
certificate and service records.  However, this evidence is 
cumulative and does not raise a reasonable possibility of 
substantiating the claim.

She has also submitted certification from the records center 
of a private hospital showing that there was a record of the 
veteran having received treatment for a cough on February 10, 
1947, without a diagnosis, and subsequent treatment on March 
9, 1947, at which time pulmonary tuberculosis was diagnosed.  
Subsequent treatment in 1948 was noted to be for pulmonary 
tuberculosis, asthma, pharyngitis and emphysema.  Similar 
treatment was noted in 1949, 1950, and 1955.  The appellant 
reported submitting this evidence to establish that 
tuberculosis was manifested to a compensable degree within 
three years of discharge from service.

This medical certification submitted by the appellant has 
been duly considered.  The Board finds, however, that this 
document is inherently incredible.  Significantly, this 
document is dated in May 2005, but describes treatment from 
1947 through 1955, including specific diagnoses noted at that 
time.  Furthermore, it is noted that, although this 
information could be obtained from a patient index, "[a]ll 
records/charts, abstracts of medical consults/confinements 
are no longer available."  The Board finds it inherently 
incredible that no records are available, and yet the 
facility is able to certify through over fifty years later 
the precise diagnoses for which the veteran was treated at 
that time.

In summary, and for the reasons and bases set forth above, 
the Board finds that the evidence received in conjunction 
with the claim to reopen is not new and material, and does 
not serve to reopen the claim for service connection for the 
cause of the veteran's death.  38 U.S.C.A. §§ 5108, 7105; 38 
C.F.R. § 3.156(a).  Having found that the evidence is not new 
and material, no further adjudication of this claim is 
warranted.


ORDER

New and material evidence has not been received and the claim 
for service connection for the cause of the veteran's death 
is not reopened.  The appeal is denied.



____________________________________________
MICHAEL LANE
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs