Citation Nr: 0813468 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-41 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for the cause of the veteran's death. 2. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to non-service connected death pension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to August 1969; however, the veteran lost 29 days of active service from July 23, 1969 to August 20, 1969. The veteran died in September 1973. The appellant is the veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The record reflects that the appellant requested a Decision Review Officer (DRO) hearing in an October 2004 statement in support of the claim. The RO scheduled a DRO hearing for the appellant in February 2006. The appellant did not report to the scheduled hearing and subsequently requested to reschedule the hearing as she was in court the day of the scheduled hearing. The RO rescheduled the DRO hearing for the appellant in February 2007 and in March 2007; however, the appellant did not appear for either hearing. The appellant's representative withdrew the request for a DRO hearing in May 2007. In regard to the Board hearing request, the record reflects that the appellant requested to be scheduled for a hearing before the traveling member of the Board in her April 2004 Notice of Disagreement and her December 2004 VA Form 9. The RO subsequently scheduled the appellant for a Travel Board hearing in July 2007. However, the appellant was unable to report to the scheduled hearing, because she was in the hospital and the doctor indicated that she would not be released before the scheduled hearing date. Although the RO rescheduled the Board hearing for February 2008 pursuant to her request, the appellant did not report for the hearing and did not offer an explanation regarding her failure to appear. Therefore, the appellant's request for a Board hearing is considered withdrawn. FINDINGS OF FACT 1. The November 1975 rating decision for entitlement to service connection for cause of death is final. 2. Evidence received subsequent to the November 1975 rating decision does not raise a reasonable possibility of substantiating the appellant's claim. 3. The July 1996 rating decision for entitlement to non- service connected pension is final. 4. Evidence received subsequent to the July 1996 rating decision does not raise a reasonable possibility of substantiating the appellant's claim. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for the cause of the veteran's death is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.104 (2007). 2. Evidence submitted to reopen the claim of entitlement to non-service connected death pension is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.104 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 her or 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 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 the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. In this case, a notice letter provided to the appellant in March 2007 notified the appellant of the criteria for reopening the previously denied claims, the criteria for establishing service connection, the reason the claims were previously denied and that the evidence the appellant submits should relate to the reason the claim was previously denied. The notice letter also discussed the evidence required to support a claim for death pension benefits. It explained the evidence required to substantiate the DIC claim and the information required to substantiate a DIC claim based on a condition not yet service connected. The letter also informed the appellant of her and VA's respective duties for obtaining evidence. It requested the appellant to provide any evidence in her possession and she was informed that it was ultimately her responsibility to ensure that VA received any evidence not in the possession of the Federal government. Thus, the information provided to the appellant satisfied VA's duty to notify. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, the notice error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in June 2007 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to decide this appeal as the timing error did not affect the essential fairness of the adjudication. In the case of a claim to reopen a previously denied issue, the VCAA explicitly provides that "nothing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that is presented or secured, as described in [38 U.S.C.A § 5108]." 38 U.S.C.A § 5103A(f). However, VA has a duty to obtain records in order to assist the appellant. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the veteran's service medical records, his service clinical records, and his service personnel records have been associated with the file. The appellant was asked to advise VA if there was any other information or evidence she considered relevant to her claims so that VA could help her by getting that evidence. The appellant identified some possible records at the Colorado State Penitentiary where the veteran had died. The VA sent two requests for records from the Colorado State Penitentiary, however there was no response. The VA also requested the court trial records of the veteran from the Denver County Court House and the Boulder County Court House, however, no criminal records of the veteran were found in either county. The appellant has not identified any other records that are not already in the claims file. Therefore, the Board finds that there is no additional duty to assist. II. New and Material Evidence A. Dependency and Indemnity Compensation An unappealed rating decision in November 1975 denied the appellant's claim of entitlement to dependency and indemnity compensation on the basis that the veteran's death was not caused by a service connected disease or injury. The relevant evidence of record at the time of the November 1975 rating decision consisted of the veteran's death certificate and the dates of his active duty service. Service connection may be established for the cause of a veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); 38 U.S.C.A. § 1110, 1112, 1310. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Accordingly, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A 5108. "New" evidence means existing evidence not previously submitted to the VA. "Material" evidence means existing evidence that by itself or when considered with previous evidence of record, relate to an unestablished fact necessary 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. 39 C.F.R. § 3.156. The Board is not bound by the RO's determination in June 2007 that new and material evidence was presented to reopen the DIC claim. The Board must first decide whether the evidence that has been received is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Accordingly, the Board will adjudicate the question of whether new and material evidence has been received. In January 2004, a claim to reopen the issue of entitlement to DIC was received. Evidence of record received since the November 1975 rating decision includes service medical records, service clinical records, and service personnel records. All of the evidence received since the November 1975 rating decision is "new" in that it was not of record at the time of the November 1975 rating decision. However, the information provided by the appellant subsequent to the November 1975 rating decision does not raise a reasonable possibility of substantiating the appellant's claim. The evidence in the personnel records do not provide any information regarding an in-service disease or event related to the veteran's cause of death that would substantiate the appellant's claim. The service personnel records also do not provide a link between the veteran's active military service and his cause of death. In addition, the service medical records and the service clinical records do not raise a reasonable possibility of substantiating the appellant's claim. Both the service medical records and the service clinical records indicate that the veteran attempted suicide twice while in service. The records reveal that the veteran was seen by a psychiatrist. The psychiatrist diagnosed the veteran with chronic and severe passive- aggressive reaction with antisocial features and that the veteran had a severe predisposition with a long history of a character and behavior disorder of the immaturity type. The psychiatrist further noted that there are no mental or physical defects warranting hospitalization or medical separation. During a psychiatric examination dated in July 1969, the psychiatrist noted that the individual stated that it is not fair for him to be in the Army and he stated his determination to obtain discharge. The evidence shows that the veteran was psychically clean for discharge. The veteran's separation examination noted that the veteran was psychiatrically normal and he was designated with a "1", which denotes that the veteran possesses a high a level of medical fitness, for factors concerning personality, emotional stability and psychiatric diseases. The service medical records indicate that the veteran was separated from service due to unsuitability. Therefore, the service medical records and the service clinical records do not show a relationship between the cause of the veteran's death, which was suicide with an underlying cause of depression and the veteran's military service. As the evidence does not raise a reasonable possibility of substantiating the claim that the veteran should have been service connected for the cause of his death, it is not considered material. Thus, entitlement to reopen the claim for entitlement to service connection for the veteran's cause of death is not warranted. B. Nonservice-connected Death Pension Benefits An unappealed rating decision in July 1996 denied the appellant's claim of entitlement to non-service connected death pension benefits on the basis that the veteran did not have the sufficient number of days of active duty to qualify for the benefits. The relevant evidence of record at the time of the July 1996 rating decision consisted of the veteran's death certificate and the veteran's dates of service. Death pension benefits are generally available for surviving spouses, as a result of the veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a). An appellant is entitled to these benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "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). Although the RO determined in June 2007 that new and material evidence was presented to reopen the claim of death pension benefits, this decision is not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received. In January 2004, a claim to reopen the issue of entitlement to death pension benefits was received. Evidence of record received since the July 1996 rating decision includes service medical records, service clinical records, and service personnel records. All of the evidence received since the July 1996 rating decision is "new" in that it was not of record at the time of the July 1996 rating decision. However, the information from the service personnel records is not material, because it does not relate to an unestablished fact necessary to substantiate the claim. The service personnel records, the service medical records, and the service clinical records do not show that the veteran was in service for at least ninety days during a period of war, that the veteran was discharged for a service-connected disability or that the veteran had a disability determined to be service-connected that would have justified discharge. In addition, as discussed in section A of this analysis, the new evidence does not raise a reasonable possibility of substantiating the claim regarding whether the veteran was receiving or entitled to receive compensation payment for a service-connected disability. The evidence also does not raise a reasonable possibility of substantiating a claim that the veteran received retirement pay at the time of his death. Therefore, the new evidence is not material and the claim to reopen the claim for entitlement to death pension benefits is not warranted. (CONTINUED ON NEXT PAGE) ORDER 1. New and material evidence having not been submitted, the claim to reopen the issue of entitlement to service connection for the cause of the veteran's death is denied. 2. New and material evidence having not been submitted, the claim to reopen the issue of entitlement to non-service connected death pension is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs