Citation Nr: 0812600 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-29 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Whether new and material evidence has been submitted to reopen a claim for service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran apparently had active service from October 1941 to August 1944. The appellant is the surviving spouse of the veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee. The RO declined to reopen the claim of service connection for the cause of the veteran's death on the basis that the appellant had not submitted new and material evidence since a prior final decision by the RO in October 2001. FINDINGS OF FACT 1. The October 2001 rating decision denying service connection for cause of death is final. 2. The evidence submitted by the appellant since the October 2001 rating decision consists of duplicates of clinical evidence already of record at the time of the October 2001 decision, or is duplicative of statements submitted by the appellant prior to that decision. CONCLUSIONS OF LAW 1. The October 2001 RO decision which denied service connection for cause of death is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has not been submitted to reopen a claim for service connection for cause of death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 notice from VA 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the appellant in June 2004 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the element(s) required to establish service connection that were found insufficient in the previous denial. Finality Service connection for cause of death was denied by the RO in October 2001. A notice of disagreement was filed in November 2001, and a statement of the case was sent to the appellant in September 2002. There was no formal appeal of this rating decision by the appellant until February 2003. Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2007). Absent appeal, a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007). The appellant did not appeal the adverse determination until after the statutory time period had elapsed, and as a result, the October 2001 RO decision became final in October 2002. Under pertinent law and VA regulations the Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). Since there is a final prior decision of the claim for service connection for the veteran's death, the laws and regulations governing finality and reopening of previously disallowed claims are pertinent in the consideration of the current claim on appeal. Thus, new and material evidence is needed to reopen the claim. 38 U.S.C.A. §§ 5108, 7105. Irrespective of the RO's actions in a request to reopen a claim, the Board must decide for itself whether the veteran has submitted new and material evidence to reopen the claim of service connection for cause of death. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New and material evidence is defined by regulations as evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. Id. The October 2001 rating decision found that the veteran's service medical records were silent for complaints of, treatment for, or a diagnosis of colon cancer, and that the evidence of record did not show that the veteran's cause of death was in any way related to his military service. In reaching this decision, the RO looked to the service medical records and the private medical records of the veteran, and found no diagnosis or treatment of colon cancer during the veteran's military service. For these reasons, the RO denied the appellant's claim, and that decision is now final. New and Material In order to establish the Board's jurisdiction to reopen the claim, the Board must find that the appellant has presented evidence showing that her husband's colon cancer was related to his military service. This evidence must be "new," that is, evidence not included in clinical or other records submitted to the RO when they made their now final October 2001 decision. Since the October 2001 decision, the appellant has submitted copies of the veteran's private medical records dated from October 2000, to June 2001, from Fort Sanders Regional Medical Center, Fort Sanders Parkwest Regional Medical Center, the Knoxville Cancer Center, Abercrombie Radiological, Consultants, Inc., and the University of Tennessee Memorial Hospital. These records were already part of the original record, however, having been received by the RO in September 2001. See Evidence section, page 2, October 2001 rating decision. These records were available for consideration by the RO, exactly as resubmitted in July 2004, before the RO prepared the October 2001 decision. Since the evidence has already been considered, it is not new. The only other evidence the Board has received from the appellant since the rating decision of October 2001 is a February 2003 personal statement of the appellant submitted with a formal appeal as to the timeliness of a substantive appeal (and a copy of the same statement resubmitted in September 2005). In this statement, the appellant asserts that the veteran was injured when his jeep blew up in service, and the veteran suffered from scars, twisted fingers, and shrapnel wounds, and further asserts that the veteran had a "spot" on his lungs that caused health problems the rest of his life. It is the appellant's assertion that this lung problem, together with the above described injuries and the veteran's service-connected diseases (pleurisy, malaria), contributed to the veteran's death. While this statement from the appellant was not previously a part of the record in 2001, this statement does not provide "new" evidence, since it duplicates contentions raised by the appellant that her husband's "suffering" in-service, that is, his injuries and service-connected disabilities, caused his death from metastatic colon cancer. A review of the service medical records reveals that while in service, the veteran contracted malaria and suffered from pleurisy (which caused the spot on the veteran's lungs referred to by the appellant). However, these service medical records were of record at the time of the prior final decision. VA medical records also discuss the veteran's jeep accident and the pain he suffered in his hands. No additional VA records have been obtained or identified since the prior final decision. Therefore, all of the clinical records referenced in the appellant's statement was already a part of the record in October 2001, and was available to the RO when making their prior final decision. The appellant has not provided any new clinical records or a new allegation as to the cause of the veteran's death, and her statement is not new evidence. Prior evidence already indicated that the veteran was injured in service and suffered from cancer later in life. The fact necessary to substantiate the claim is evidence that the veteran suffered from colon cancer while in service, or that the veteran's colon cancer was somehow related to his military service. Each item of clinical evidence added to the claims file since the prior final decision was already of record, and therefore does not establish an unestablished fact or raise a reasonable possibility of substantiating the claim, since the evidence has already been considered. 38 C.F.R. § 3.156. The only information added to the claims file which is not a duplicate of evidence already of record is the appellant's statement of her belief that the veteran's military service caused or contributed to his death. The appellant's belief to this effect was of record at the time of the prior final decision, and is not material. The Board finds that the evidence added to the file in the context of the attempt to reopen the claim of entitlement to service connection for cause of death duplicates evidence or allegations already of record. In this respect, the additional evidence submitted does not contain any new evidence showing the occurrence of an injury or disease in service that would result in colon cancer later in life. Consequently the Board finds that the evidence received since the prior decision regarding the claim for service connection for cause of death is not sufficiently significant to warrant reconsideration of the merits of the claim. The additional evidence presented since October 2001 does not raise a reasonable possibility of substantiating the claim. As the evidence received since the RO decision to deny service connection for cause of death is not new and material, the claim for service connection may not be reopened. The prior decision denying the claim remains final. ORDER The October 2001 rating decision denying service connection for cause of death is final. The evidence submitted by the appellant since the October 2001 rating decision is not new and material, and the claim remains closed. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs