Citation Nr: 0813555 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-16 725 ) 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 a claim for entitlement to service connection for the cause of the veteran's death, and if so, whether service connection is warranted. ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran, who died in April 1972, had active military duty from January 1945 to February 1946. The appellant is the veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the above claim. FINDINGS OF FACT 1. The appellant's claim for service connection for the cause of the veteran's death was denied by a March 2002 rating decision. The appellant did not appeal. 2. The evidence submitted since March 2002 is new and relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the veteran's death. 3. The veteran died in April 1972, at age 52, due to bangongot, also known as acute hemorrhagic pancreatitis. 4. Prior to his death, the veteran never filed a claim seeking VA compensation benefits. 5. The medical evidence shows that the veteran's bangongot/acute hemorrhagic pancreatitis was caused by, or directly related to, his World War II guerilla combat experience. CONCLUSIONS OF LAW 1. The March 2002 rating decision that denied entitlement to service connection for the cause of the veteran's death is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. Evidence received since the March 2002 rating decision that denied entitlement to 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 (2007). 3. The criteria for entitlement to service connection for the cause of the veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence The appellant's claim for entitlement to service connection for the cause of the veteran's death was denied by RO decisions in June 1979, July 1987, and June 1989. In an unappealed rating decision in March 2002, the RO denied an application to reopen the claim for service connection on the grounds that the appellant had not submitted new and material evidence. The appellant was notified of this decision and of her appellate rights by a letter dated March 18, 2002. She did not appeal. Therefore, the March 2002 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The appellant filed a claim to reopen in July 2005. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 3.156 (2007). Evidence is new if it has not been previously submitted to agency decision makers. 38 C.F.R. § 3.156(a) (2007). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. Although, for the purpose of reopening a claim the Board is prohibited from weighing evidence and must assume evidence is credible, in deciding the claim on the merits the Board must assess the credibility and probative weight of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). At the time of the March 2002 decision, the evidence of record included the veteran's service medical records; a January 1946 affidavit signed by the veteran; the appellant's and veteran's marriage certificate dated in January 1957; the veteran's death certificate dated in April 1972; an April 1998 affidavit signed by A. T. A., Jr., M.D. regarding the veteran's cause of death; duplicate letters from J. E. A., M.D. of the Holy Rosary Hospital dated in June 2001 and October 2001 regarding the veteran's cause of death and its relationship to the veteran's service; and a November 2001 joint affidavit signed by A. P. A., Sr. and T. M. regarding the veteran's and appellant's marriage ceremony. The appellant's claim was previously denied because she had not submitted new and material evidence. The Board notes that Dr. J.E.A.'s letter was submitted prior to the March 2002 rating decision that denied the claim to reopen; however, insofar as the RO failed to consider the letter in its entirety, the Board finds that the letter is new evidence. It is also material insofar as it raises a reasonable possibility of substantiating the appellant's claim for service connection for the cause of the veteran's death. Dr. J.E.A.'s letter states that the veteran's cause of death was acute hemorrhagic pancreatitis, or bangongot in the local dialect, and that in his medical opinion, this disease was cause by or directly related to the veteran's service in World War II. He further stated that he had no doubt that the events and conditions that the veteran experienced during his guerilla years lead to the veteran's hemorrhagic pancreatitis and his ultimate demise. As such, this evidence relates to a previously unestablished fact necessary to substantiate the appellant's claim, namely medical evidence of a nexus between the veteran's cause of death and his time in service. The additional evidence being both new and material, the appellant's claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). To the extent that this claim is reopened, the Board finds that VA has complied with the Veterans Claims Assistance Act of 2000 and no further discussion is required. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service inccurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). To establish service connection for the cause of the veteran's death, the evidence must show a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). The issue on this appeal is whether the veteran's acute hemorrhagic pancreatitis was incurred during, or caused by, his military service. The medical evidence of record, namely the letter submitted by Dr. J.E.A., establishes that the veteran's bangongot, or acute hemorrhagic pancreatitis, which was the cause of death noted on his death certificate, was caused by the events and conditions he experienced during service. In a June 2001 letter, Dr. J.E.A. reported that, prior to his death, the veteran was treated for far advanced pulmonary tuberculosis, acute pancreatitis, and acute dyspepsia. He further reported that during the veteran's guerilla service, he was exposed to attacks of hunger, was forced to eat uncooked and contaminated foods, was exposed to disastrous changes in weather conditions, had sleepless nights, and frequently moved through harmful surroundings. Finally, Dr. J.E.A. stated that he had no doubt that such events and conditions took a toll on the veteran's body, precipitating the incurrence of acute pancreatitis and ultimately, the veteran's death. The veteran's death certificate indicated that the direct cause of death was bangongot, and Dr. J.E.A. provided a medical opinion indicating that this disease was caused by, or directly related to, the veteran's service in World War II, thereby providing evidence of in-service incurrence of the disease and the necessary medical evidence of a nexus between the veteran's service and his cause of death. Accordingly, applying the benefit of the doubt doctrine, the doubt is resolved in favor of the veteran. See 38 C.F.R. § 3.102 (2007). Therefore, the appellant's claim for service connection for the veteran's cause of death is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary, as any potential failure of VA in fulfilling these duties is harmless error. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened. Service connection for the veteran's cause of death is granted. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs