Citation Nr: 0813086 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-06 966 ) 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 of entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had recognized active service from February 1943 to February 1946. The appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. In a January 1988 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. 2. In rating decisions of June 1995, June 1999, and April 2001, the RO declined to reopen the appellant's claim; she did not appeal. 3. The evidence received since the April 2001 rating decision is cumulative or redundant of evidence previously of record, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the veterans' death. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for the cause of the veteran's death. 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 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 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; and (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). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Also, during the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. In the present case, the veteran's most recent request to reopen her claim was received after the enactment of the VCAA. A letter dated in January 2001 explained the basis of the denial of the claim of entitlement to service connection for the cause of the veteran's death. It told the appellant that she should submit evidence showing that the illness causing the veteran's death had its onset during service or was directly related to a disease, injury, or event that occurred in service. An April 2001 letter informed the appellant that her claim remained denied because the evidence failed to show that the veteran's death was related to his service. A March 2003 letter advised the appellant that her claim had been denied because the evidence failed to show that the veteran's death was due to a service-connected disease or injury. It explained the meaning of new and material evidence and listed the evidence of record. In July 2004 the appellant was apprised of the evidence necessary to support a claim of entitlement to service connection for the cause of the veteran's death. A June 2005 letter explained the VCAA. It explained the evidence necessary to support the appellant's claim. She was asked to submit various documents. The letter also explained how the appellant could reopen her claim with the submission of new and material evidence. The evidence of record was listed and the appellant was told how VA would assist her in obtaining additional evidence. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claims. Although appellant may have received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that she was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. The appellant has not identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if 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. 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). 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). In January 1988, the Board denied the appellant's claim. It noted that the veteran's service-connected gunshot wounds were considered well-healed. It concluded that the veteran's service-connected disorders did not play an important and contributory role in the medical problems that led to his death. At the time of the Board's decision, the record included the veteran's service medical records. They show that the veteran sustained grenade wounds to his back, buttock, arms and right leg. The veteran was service-connected for residuals of the grenade wounds and had a combined 40 percent evaluation. Reports of VA examinations conducted in May 1950 and February 1966 discussed the service-connected disabilities. The veteran's death certificate and terminal records were also associated with the record. The terminal records from the Veterans Memorial Medical Center indicate that the veteran had developed a nonhealing wound on the dorsum of his left foot three years prior to admission, and that he had been treated at that facility for chronic osteomyelitis. The hospital records also show that the veteran had a diagnosed case of pulmonary tuberculosis. The record indicates that the veteran had been anorexic for one month prior to admission. On the 24th day, he aspirated his "osterized" feeding. He subsequently developed dyspnea and pneumonia, and his condition deteriorated until he expired. The death certificate shows that the veteran died in March 1987 as the result of cardiopulmonary arrest. The antecedent cause was listed as aspiration pneumonia. Other significant conditions were noted to be chronic osteomyelitis, pulmonary tuberculosis, and severe malnutrition. Also of record were various certificates from the Philippine Army regarding the veteran's service. Since the Board's January 1988 decision, the appellant has made numerous attempts to reopen her claim. The RO issued its most recent final denial in April 2001. In support of her requests to reopen, the appellant has submitted various materials, to include her birth certificate, a marriage certificate, an April 1987 joint affidavit regarding her marriage to the veteran, X-ray reports from March 1987 regarding the veteran's foot, and a statement from J.M., M.D. regarding treatment of the veteran's pulmonary tuberculosis. She also submitted duplicate death certificates, terminal hospital reports, and materials pertaining to the veteran's service. The appellant submitted her most recent request to reopen in January 2003. In support of her claim, she has submitted duplicates of the veteran's death certificate, service records, the April 1987 affidavit, Dr. M.'s statement, the March 1987 X-ray reports, and the March 1987 terminal hospital report. Upon careful review of the evidence pertaining to this claim, the Board concludes that new and material evidence sufficient to reopen the appellant's claim of entitlement to service connection for the cause of the veteran's death has not been submitted. The evidence added to the record since the RO's April 2001 rating decision is duplicative of evidence that was of record at the time of the previous rating decision. As such, none of the evidence added to the record since the April 2001 decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the veteran's death. The appellant's assertions that her husband's death was related to his service-connected disability had previously been voiced and were considered by the RO and Board. Similarly, the duplicative medical evidence disclosing treatment of the veteran prior to his death cannot serve to reopen the claim. In this regard the Board notes that evidence tending to confirm a previously established fact is cumulative. At the time of the last decision, there was evidence of service, service connected disability, remote post-service aspiration and evidence attributing the cause of death to aspiration. Stated differently, at the time of the last decision, there was evidence of death, but no evidence attributing the cause of death to service or a service-connected disability. Since that determination, no facts have changed. Accordingly, none of the evidence added to the file since the April 2001 decision is new and material for the purpose of reopening the claim of entitlement to service connection for the cause of the veteran's death. Accordingly, the claim is not reopened. ORDER The application to reopen the claim of entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs