Citation Nr: 0813547 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-09 714 ) 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 received to reopen a previously denied claim of entitlement to service connection for the cause of the veteran's death and, if so, whether entitlement to service connection is warranted. WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran had service with the United States Armed Forces in the Far East (USAFFE) and recognized guerillas from December 1941 to February 1946. The appellant is his surviving spouse. The matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2005 rating decision from the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the appellant's claim of service connection for cause of death. The record reflects that the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2007. The transcript of the hearing is associated with the claims file and has been reviewed. FINDINGS OF FACT 1. Service connection for the cause of the veteran's death was denied by the RO in an July 1993 rating decision. The appellant did not appeal the decision. 2. Evidence received since the July 1993 rating decision is new and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the veteran's death. 3. The disability that caused the veteran's death was not manifested during the veteran's military service or for many years thereafter, nor was it otherwise related to the veteran's service. CONCLUSIONS OF LAW 1. The July 1993 rating decision that denied service connection for the veteran's cause of death is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302(b), 20.1103 (2007). 2. The evidence received since the July 1993 rating decision, which denied service connection for the cause of the veteran's death, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The veteran's death was not caused by or substantially or materially contributed to by a disability incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 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). To the extent possible, this notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The Court also indicated in Pelegrini II, however, that where for whatever reason VCAA notice was not provided prior to initially adjudicating the claim, VA does not have to vitiate the initial decision and start the whole adjudicatory process anew, as if the initial decision was never made. Rather, VA need only ensure the claimant receives (or since has received) VCAA content-complying notice, followed by readjudication of the claim, such that she is given proper due process. In other words, she is still given a meaningful opportunity to participate effectively in the processing of her claim. In this regard, the Federal Circuit Court has held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the VCAA duty to notify was satisfied by way of letters sent to the appellant in March 2004 and July 2005 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate her claim and of her and VA's respective responsibilities for obtaining evidence. She was also asked to submit evidence and/or information in her possession to the AOJ. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (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, VA 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. That is to say, specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. In this case, the notice letters provided to the appellant in March 2004 and July 2005 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 required to establish service connection that was found insufficient in the previous denial. VA has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). During the pendency of the appeal, the appellant submitted additional medical evidence and information to substantiate her claim. The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Significantly, there is nothing to suggest that additional existing evidence that is necessary for a fair adjudication of the claim has not been obtained. The Board also finds that VA is not obligated to obtain a medical opinion in this case because the evidence does not suggest that the veteran suffered an event, injury, or disease in service that caused, hastened, or substantially or materially combined to cause death. 38 C.F.R. § 3.159(c) (4) (2007). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Accordingly, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of her claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis A July 1993 decision denied service connection for the veteran's cause of death. Although the September 2005 rating decision and February 2006 Statement of the Case reflect that the RO addressed the threshold matter of new and material evidence, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d); 20.302, 20.1103 (2007). Thus, the July 1993 decision became final because the appellant did not file a timely appeal. The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing 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 a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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) (2007). Only evidence presented since the last final denial on any basis will be considered, in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the July 1993 rating decision consisted of service records which reflect that the veteran had sustained a shrapnel wound to the left foot; a copy of a death certificate dated in January 1968 which reflects that the veteran died as a result of severe shock secondary to profuse internal hemorrhage secondary to rupture of the liver and right kidney; and a March 1993 statement from M. C. Tampoya, M.D. which reflects that the veteran had been treated for pulmonary tuberculosis and glaucoma from 1946 to 1950. The RO found that there was no evidence of the death causing conditions in service or within any applicable post service presumptive period. At the time, the veteran had been service connected for shrapnel wound to the left foot. The veteran's service medical records are devoid of findings, complaints, symptoms, or diagnoses attributable to liver or kidney impairment. The July 1993 rating decision denied service connection for the veteran's cause of death because there was no evidence of the death causing conditions in service or within any applicable post service presumptive period. New medical evidence consists of an August 2005 private medical opinion from R. A. Palad, M.D., in which Dr. Palad states that he treated the veteran from 1965 to 1967 for arthritis of the left foot and peptic ulcer, which the veteran acquired as a result of his stay in a concentration camp. In addition, Dr. Palad further states that he treated the veteran on and off until his death in January 1967 due to internal hemorrhage caused by bleeding peptic ulcer. The Board finds that the August 2005 statement from Dr. Palad, received since the July 1993 final rating decision, is presumed credible for the purpose of reopening the appellant's claim, when viewed with the evidence previously of record. This medical statement is new and material because it raises a reasonable possibility of substantiating the appellant's claim as it establishes a previously unestablished fact, that the veteran's condition is related to his service. Therefore, the Board finds that new and material evidence sufficient to reopen the claim has been received. New and material evidence having been submitted, the claim for service connection for the veteran's cause of death is reopened, and the appeal is granted to that extent only. The Board will proceed to consider the issue of entitlement to service connection for he cause of the veteran's death. Applicable law provides that service connection will be granted if it is shown that the veteran had a disability resulting from an injury experienced or a disease contracted in the line of duty, or for aggravation in the line of duty of a preexisting injury or disease, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for the cause of a veteran's death requires a showing that either the fatal disorder or disease was incurred in, or aggravated by, an incident or event in service or, with certain chronic diseases, was manifest to a compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112,1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection also may be granted with evidence that a service connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.310(a), 3.312. As to the principal cause of death, the regulations provide that a "service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." See 38 C.F.R. § 3.312(b). A contributory cause of death, however, is inherently not related to a principal cause. In determining whether the service connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312. It is not sufficient to show that it casually shared in producing death; rather, it must be shown that there was a causal link. Id. Service connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the view of whether there were resulting debilitating effects and general impairment of health to an extent that would render a person materially less capable of resisting the effects of other disease or injury primarily causing death. Id. In certain circumstances, federal regulations provide that service connection will be presumed. The law provides for presumptions that certain diseases, under certain circumstances, were incurred in service when developed by a former prisoner of war (POW). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(5), 3.309(c). In particular, "[I]f a veteran is a former POW, the following diseases shall be service connected if manifest to a degree of disability 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 . . .atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia)." 38 C.F.R. § 3.309(c). As noted previously, the veteran died in January 1968; the death certificate lists the cause of death as severe shock secondary to profuse internal hemorrhage secondary to rupture of the liver and right kidney. At the time of his death, the veteran was service-connected for shrapnel wound of the left foot. The Board notes that there are no service records which document complaints or medical findings of liver or kidney impairment. When asked to state any wounds and illness incurred, in his August 1945 and February 1946 Affidavits for Philippine Army Personnel, the veteran reported only the left foot shrapnel injury. Further, there are no post service medical records pertaining to liver or kidney trouble. Overall, there is no competent medical evidence of record suggesting a casual link between the veteran's severe shock secondary to profuse internal hemorrhage secondary to rupture of the liver and right kidney and his service. The preponderance of the evidence is against a finding that liver or kidney impairment was manifested during service or for many years after discharge from service. The Board acknowledges that the veteran sustained a shrapnel wound to the left foot. However, nothing in the record shows that his severe shock secondary to profuse internal hemorrhage secondary to rupture of the liver and right kidney were caused or aggravated by this injury. Moreover, the veteran's left foot injury was not identified as a principal or contributory cause of death. As to the appellant's belief that the cause of the veteran's death was due to the veteran's period of detention as a POW, the appellant, as a lay person, is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Likewise, the appellant is not competent to render a medical opinion as to the cause of the veteran's death. It is acknowledged that an August 2005 private medical opinion from Dr. Palad states that he treated the veteran from 1965 to 1967 for arthritis of the left foot and peptic ulcer, which the veteran acquired as a result of his stay in a concentration camp. In addition, this statement further reflects that he treated the veteran on and off until his death in January 1967 due to internal hemorrhage caused by bleeding peptic ulcer. Accordingly, Dr. Palad's statement reflects his conclusion that the cause of the veteran's death was due to internal hemorrhage caused by bleeding peptic ulcer which he initially acquired as a result of his detention as a POW. However, the Board points out that this statement is contradicted by the veteran's death certificate, which reflects that the veteran's profuse internal hemorrhage was secondary to a rupture of the liver and right kidney. In this regard, it is noted that an evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has considered the opinion expressed by Dr. Palad in his August 2005 statement; however, while this opinion which suggests that the veteran's internal hemorrhage from which he died is related to bleeding peptic ulcer which he acquired during his detention as a POW has probative value, it was not rendered based on a thorough review of the entire claim file and is unsupported by clinical, data which makes it less probative. The weight of the evidence does not show that the veteran developed a bleeding peptic ulcer during his period as a POW or that his death was related to a bleeding peptic ulcer. Given the absence of competent medical evidence linking the veteran's death to his active service, including any time as a prisoner of war, the Board finds that neither a service connected disability nor the veteran's active service is the principal or a contributory cause of the veteran's death. Accordingly, the Board concludes that the veteran's death was not due to a service connected disability or to his active service. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claims, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the application to reopen the claim for service connection for the veteran's cause of death, is granted. Service connection for the veteran's cause of death is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs