Citation Nr: 0811707 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-07 732 ) 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 presented to reopen a claim of entitlement to service connection for cause of the veteran's death. ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served as a member of the Philippine Commonwealth Army from October 1941 to June 1946. During the period of April 10, 1942 to September 21, 1942, the veteran was a prisoner-of-war (POW). The veteran died in January 1993, and the veteran's widow is the appellant in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO). The RO determined that the appellant had not submitted new and material evidence to reopen the claim of service connection for cause of the veteran's death. FINDINGS OF FACT 1. Service connection for cause of the veteran's death was denied by the Board in a February 2004 decision. 2. Since the February 2004 Board decision which denied entitlement to service connection for cause of the veteran's death, evidence that relates to an unestablished fact necessary to substantiate the claim has not been presented or secured. CONCLUSION OF LAW The February 2004 Board decision that denied entitlement to service connection for cause of the veteran's death is final. Evidence presented since that decision is not new and material. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1100, 20.1105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision Applicable Laws and Regulations New and Material Generally, a claim which has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[i]f 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." Therefore, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c); See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the appellant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the United States Court of Appeals for Veteran Claims (Court) indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. Service Connection for Cause of Death Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. See 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due a service- connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability causally shared in producing death, rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). Special presumptions are applicable for certain diseases specific as to former prisoners of war. Under 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309(c), if a veteran is: (1) a former prisoner of war, and (2) as such was interned or detained for not less than 30 days, certain chronic diseases, such as avitaminosis, beriberi (including beriberi heart disease), chronic dysentery, helminthiasis, malnutrition (including optic atrophy associated with malnutrition), pellagra, irritable bowel syndrome, peptic ulcer disease or peripheral neuropathy (except where directly related to infectious causes), 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis At the time of the February 2004 Board decision, which denied service connection for cause of the veteran's death, the evidence of record consisted of the veteran's service medical records, private medical records dated June 1982 to August 1999, and VA examinations dated December 1987 and May 1989. The appellant contends in her January 2003 personal statement, that the veteran's POW experiences caused him to develop heart and lung conditions, which caused his untimely demise. In this case, the veteran died in January 1993. In an August 1999 private medical statement, it was noted that the veteran died from cardiorespiratory arrest and tuberculosis pneumonia. In the February 2004 decision, the Board determined that there was no competent medical evidence of record to relate the veteran's death to his active military service. The Board explained that the available medical evidence was absent of any cardiovascular or respiratory illnesses during the veteran's military service. It was noted that the veteran was initially diagnosed with a heart condition in June 1982, approximately thirty-five years after discharge from service. Similarly, the Board determined that the first indication of a respiratory illness was in December 1987, more than forty years after the veteran's separation from service. The Board concluded that since the veteran's cardiovascular and respiratory illnesses did not manifest until many years after service, there was no competent evidence of record suggesting a relationship between the cause of the veteran's death and his active service. The Board notified the appellant of this decision in February 2004; she did not file a notice of appeal to the Court. Consequently, that decision became final based on the evidence of record at that time. 38 U.S.C.A. § 7104(b); 38 C.F.R. §§ 20.1105. After having carefully reviewed the evidence of record, the Board finds that the appellant has not presented evidence since the February 2004 Board decision, which raises a reasonable possibility of substantiating the claim of service connection for cause of death. Since the February 2004 Board decision, the evidence received into the record includes several personal statements submitted by the appellant which state that the veteran's heart condition contributed to his death, and request the RO to reconsider her claim in light of the amendments to 38 C.F.R. § 3.309(c), effective October 2004. Although the evidence mentioned above constitutes new evidence, in that it was not of record at the time of the previous decision, the evidence is not material because it does not raise a reasonable possibility of substantiating the claim. In this regard, while the veteran's personal statements direct the RO to adjudicate her claim incorporating the provisions of 38 C.F.R. § 3.309(c), the veteran's causes of death - cardiorespiratory arrest and tuberculosis pneumonia, are not among the disabilities applicable under 38 C.F.R. § 3.309(c); therefore, the presumption would not apply. Furthermore, the appellant's claim is not substantiated by any other evidence in the record, other than her own assertions of the veteran's death. The appellant is not competent to provide medical evidence of diagnosis or etiology of a disability. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Thus, the appellant's assertions are not material because they do not tend to demonstrate that the veteran's causes of death are related to his military service. See Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). The Board concludes that this information, while new, does not raise a reasonable possibility of substantiating the claim. 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 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. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The Board finds that the VCAA notice requirements have been satisfied by the June 2005 letter sent to the appellant regarding her claim of service connection for cause of the veteran's death. Specifically, in the June 2005 letter, VA informed the appellant that in order to substantiate a claim for service connection for cause of the veteran's death, the evidence needed to show the cause of the veteran's death, a disease or injury in service, and a relationship between the cause of death and the disease or injury in service. During the pendency of this appeal, on March 31, 2006, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which establishes new requirements regarding the VCAA notice and reopening claims. The Court held that the VCAA notice must include the bases for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). The appellant has been apprised of the information necessary to reopen her claim in the June 2005 VCAA letter. As to informing the appellant of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed her it had a duty to obtain any records held by any federal agency. It also informed her that on her behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The RO told the appellant that she could obtain private records himself and submit them to VA. Finally, she was told to submit any evidence in her possession that pertained to the claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the veteran's service medical records and private medical records from March 1992 to September 1992 and from June 2005 to September 2005. The Board notes that in the appellant's VA Form 9, Appeal to the Board of Veterans' Appeals, received in March 2006, the appellant indicated that the veteran received treatment at the Veterans Memorial Hospital in Quezon City, Philippines, prior to his death. As such, in November 2006, the RO sent the appellant a VA Form 21-4142, Authorization and Consent to Release Information to the VA, and requested that the appellant "identify clearly the treatment dates of the veteran to facilitate a quick search of the medical records." However, in November 2006, the appellant returned the form to the RO without providing the necessary information. As of this date, no additional information as been received from the appellant. Thus, the Board finds that the duty to assist has been satisfied. VA has not provided the appellant with an opinion in connection with her claim; however, the Board finds that VA was not under an obligation to an opinion elicited in connection with her claim. The appellant has not brought forth new and material evidence to reopen the claim. 38 C.F.R. § 3.159(c)(4)(iii) states that paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. For these reasons, the Board finds that VA was not under an obligation to provide a medical opinion in connection with her claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER New and material evidence not having been presented, the application to reopen a claim of entitlement to service connection for cause of the veteran's death is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs