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