Citation Nr: 0814597	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-11 670	)	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 of entitlement to service connection for the 
cause of the veteran's death for accrued purposes only.


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel




INTRODUCTION

The veteran had active service with the Philippine 
Commonwealth Army from December 1941 to September 1942 and 
from August 2, 1945 to August 18, 1945.

The veteran was incarcerated as a prisoner of war (POW) from 
April 10, 1942 to September 17, 1942.  He died in May 1993.  
The appellant is his surviving son.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a September 2005 determination by the above 
Department of Veterans Affairs (VA) Regional Office (RO). 


FINDINGS OF FACT

1.  A claim for service connection for cause of death was 
denied by the Board in July 1999.

2.  The evidence received since the July 1999 Board decision 
is new, but it does not raise a reasonable possibility of 
substantiating the underlying claim for service connection.  

3.  The veteran's widow had a claim to reopen pending at the 
time of her death in April 2005.  

4.  The appellant's claim for accrued benefits was received 
in August 2005, less than one year after his mother's death.




CONCLUSION OF LAW

1.  The July 1999 Board denial is final.  38 U.S.C.A. § 7104 
(West 2002); 38 C.F.R. §§ 20.1100(a), 20.1105 (2007).

2.  New and material evidence has not been submitted to 
reopen the claim of entitlement to service connection for 
cause of death.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156 (2007).

3.  The appellant is not eligible for accrued benefits.  
38 U.S.C.A. §§ 5101, 5121(West 2002); 38 C.F.R. § 3.1000 
(2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Accrued Benefits

The law and regulations governing claims for accrued 
benefits, as applicable to this case, state that, upon the 
death a veteran's surviving spouse, her child may be paid 
periodic monetary benefits to which she was entitled at the 
time of death, and which were due and unpaid, based on 
existing rating decisions or other evidence that was on file 
when she died.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.

A consequence of the derivative nature of an accrued benefits 
claim is that, without the surviving spouse having a claim 
pending at time of death or else be entitled to benefits 
under an existing rating or decision, the appellant has no 
claim upon which to base his own application.  See generally, 
Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1996).

Here, the veteran died in May 1993.  His surviving spouse, 
who had a claim pending for service connection for his cause 
of death, died in April 2005.  In June 2005, the appellant 
notified the VA that the surviving spouse died and requested 
accrued benefits.  In August 2005, he filed VA Form 21-601, 
Application for Reimbursement from Accrued Amounts Due a 
Deceased Beneficiary.

As the appellant's claim is derivative of any benefit to 
which his mother might have been entitled at her death, the 
Board's primary analysis must be one that considers the 
underlying claim, in this case, whether new and material 
evidence had been submitted to reopen a claim for service 
connection for cause of the veteran's death. 


New and Material Evidence for Cause of Death

The Board's July 1999 decision is final.  38 C.F.R. § 20.1100 
(2007).  A final decision cannot be reopened and reconsidered 
by the VA unless new and material evidence is presented in 
connection with a request that the previously denied claim be 
reopened.  38 U.S.C.A. § 5108 (West 2002); Suttman v. Brown, 
5 Vet. App. 127, 135 (1993).  

It should be noted that the regulation pertaining to the 
definition of new and material evidence has been amended, 
effective for claims filed on or after August 29, 2001.  See 
38 C.F.R. § 3.156(a) (2007); 66 Fed. Reg. 45,620 (Aug. 29, 
2001).  The veteran's request to reopen this claim was filed 
in September 2004, so the amended regulatory provisions 
governing new and material evidence are applicable.  
Consequently, the appeal will be decided under the current 
version of section 3.156(a), as is outlined in the decision 
below. 

According to the regulation, "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 the claim.  
New and material evidence cannot be cumulative or redundant.  
Id.  Furthermore, the U.S. Court of Appeals for the Federal 
Circuit has indicated that evidence may be considered new and 
material if it contributes "to a more complete picture of 
the circumstances surrounding the origin of a veteran's 
injury or disability, even where it will not eventually 
convince the Board to alter its ratings decision."  Hodge v. 
West, 115 F.3d 1356, 1363 (Fed. Cir. 1998).

In addition, the Court of Appeals for Veterans Claims (Court) 
has stated that, in determining whether the evidence is new 
and material, the credibility of the newly presented evidence 
is to be presumed.  See Kutscherousky v. West, 12 Vet. 
App. 369, 371 (1999) (per curiam) (holding that the 
"presumption of credibility" doctrine, as articulated in 
Evans v. Brown, 9 Vet. App. 273 (1996), was not altered by 
the ruling in Hodge, and continues to be binding precedent).  
The Board is required to give consideration to all of the 
evidence received since the last disallowance of this claim 
on any basis, which means, in this case, since the July 1999 
Board decision.  See Hickson v. West, 12 Vet. App. 247, 251 
(1999).

In general, service connection may be granted for disability 
or injury incurred in or aggravated by active military 
service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 
3.303 (2007).  Service connection may also be granted for any 
disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d). 

For a veteran who was held in captivity as a prisoner of war 
(POW); the law provides for presumptions that certain 
diseases, such as atherosclerotic heart disease or 
hypertensive vascular disease and their complications shall 
be found service-connected if manifest to a degree of 10 
percent or more at any time after discharge or release from 
active military service.  38 C.F.R. §§ 3.307(a)(5), 3.309(c) 
(2007) 

To establish service connection for the cause of a veteran's 
death, the evidence must show that a disability due to 
disease or injury incurred in or aggravated by active 
service, or which was proximately due to or the result of a 
service-connected condition, was either a principal or 
contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 
3.312(a).  For a service-connected disability to be the 
principal cause of death, it must singularly or jointly with 
some other condition be the immediate or underlying cause of 
death, or be etiologically related thereto.  38 C.F.R. § 
3.312(b).  For a service-connected disability to be a 
contributory cause of death, it must be shown that it 
contributed substantially or materially, that it combined to 
cause death, or aided or lent assistance to the production of 
death.  38 C.F.R. § 3.312(c).

After considering all information and lay and medical 
evidence of record in a case with respect to benefits under 
laws administered by the Secretary, when there is an 
approximate balance of positive and negative evidence 
regarding any issue material to the determination of a 
matter, the benefit of the doubt will be given to the 
claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The 
benefit of the doubt rule is inapplicable when the evidence 
preponderates against the claim.  Ortiz v. Principi, 274 F.3d 
1361 (Fed. Cir. 2001).

Factual Background & Analysis

The RO first denied the claim of entitlement to service 
connection for the veteran's cause of death in an August 1998 
rating decision.  The denial was based upon the RO's finding 
that the evidence did not establish any relationship between 
the veteran's military service from 1941 to 1945 and his 
death in May 1993 from pulmonary tuberculosis (PTB).  The 
claim was later denied by the Board in July 1999, affirming 
that the veteran's death was unrelated to service, 
particularly his POW experiences.

Evidence before the Board in July 1999 included the record of 
the veteran's October 1945 discharge examination which showed 
he was "ok" and "fit for service."  Physical examination 
showed the lungs were clear.  The veteran listed his only in-
service illness as malaria, which he incurred in 1942.  The 
examiner listed malaria as having been incurred in the line 
of duty.  There are no service medical records that reveal a 
complaint or finding of PTB.

Of record is a May 1993, hospital report from Mauban District 
Hospital.  At that time the veteran had been hospitalized, 
for three days, with a diagnosis of moderately advanced PTB.  
An examination of his heart was unremarkable.  The report 
notes a prior medical history of PTB but does not indicate 
when this was first diagnosed.  He died on May [redacted], 1993, at 
the age of 76.  The death certificate listed PTB as the cause 
of death.  There is no indication in these records that such 
disability was related to the veteran's military service.

In her September 1998 notice of disagreement, the veteran's 
widow stated that the veteran suffered malaria, beriberi, 
dysentery and other POW related disabilities while a captive.  
She also stated that cardiorespiratory arrest and PTB were 
POW-related sicknesses.  Moreover, in a December 1998 
affidavit, the veteran's former service comrades attested, 
inter alia, that the cause of death of the veteran was the 
illness he suffered while in service, especially when inside 
the Camp O'Donnell Concentration Camp.

Evidence received since the July 1999 Board decision consists 
of a duplicate copy of the May 1993 hospital report from 
Mauban District Hospital and a statement from a private 
physician who treated the veteran between March 1993 and 
April 1993 for acute respiratory infection, possibly Koch's 
pneumonia.  

Although the private physician's report is "new" in the 
sense that it was not previously of record, it is not 
"material" for purposes of reopening the claim because it 
does not demonstrate that the veteran's death was the result 
of atherosclerotic heart disease, hypertensive vascular 
disease, or any other condition listed under 3.309(c).  Thus 
it does not raise a reasonable possibility of substantiating 
the claim.  

Rather this evidence serves only to reinforce a fact that was 
well known at the time of July 1999 Board decision, namely 
that the veteran's death was the product of PTB.  The 
additionally-received evidence still does not tend to 
establish a relationship between the veteran's military 
service, including his POW experiences, and the conditions 
that caused his death (the pivotal issue underlying the claim 
for service connection).  

To the extent that the veteran's widow offered lay statements 
in an attempt to establish service connection, the Board 
notes that such evidence essentially constitutes reiterations 
of assertions made in connection with the prior denial, and, 
thus, cannot be considered "new" within the meaning of 38 
C.F.R. § 3.156(a).  See Reid v. Derwinski, 2 Vet. App. 312, 
315 (1992).  In any event, as she was not shown to possess 
the appropriate medical expertise and training to competently 
offer an opinion as to whether the veteran's death was 
related to service, any statements purporting to do so cannot 
constitute material evidence.  See Jones v. Brown, 7 Vet. 
App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 
494-95 (1992).  For these reasons, the unsupported lay 
statements, even if new, cannot serve as a predicate to 
reopen the previously disallowed claim.  See Moray v. Brown, 
5 Vet. App. 211, 214 (1993).

The Board finds that new and material evidence has not been 
received with regard to the claim for service connection for 
cause of death.  

Likewise the appellant's claim for accrued benefits is denied 
because there is no evidence that the his mother was entitled 
to benefits which were unpaid.  38 U.S.C.A. § 5108 (West 
2002); 38 C.F.R. § 3.156(a) (2007).


Duty to Notify and Assist

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, 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); 38 C.F.R. § 3.159(b).  
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 RO decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if 
VCAA notice is provided after the initial decision, such a 
timing error can be cured by subsequent readjudication of the 
claim, as in a Statement of the Case (SOC) or Supplemental 
SOC (SSOC).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) 
(the issuance of a fully compliant VCAA notification followed 
by readjudication of the claim, such as a SOC or supplemental 
SOC (SSOC), is sufficient to cure a timing defect). 

The U.S. Court of Appeals for the Federal Circuit recently 
held that any error in a VCAA notice should be presumed 
prejudicial.  The claimant bears the burden of demonstrating 
such error.  VA then bears the burden of rebutting the 
presumption, by showing that the essential fairness of the 
adjudication has not been affected because, for example, 
actual knowledge by the claimant cured the notice defect, a 
reasonable person would have understood what was needed, or 
the benefits sought cannot be granted as a matter of law.  
Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) 

In a June 2005 letter, the RO informed the appellant of its 
duty to assist him in substantiating his claim under the 
VCAA, and the effect of this duty upon his claim.  This 
letter pre-dated the RO's September 2005 rating 
determination.  See also VCAA letter dated in July 2007.

The contents of the above letter provided to the appellant 
complied with the requirements of 38 U.S.C.A. § 5103(a) and 
38 C.F.R. § 3.159(b) regarding VA's duty to notify and 
assist.  The appellant was provided the text of the 
regulations governing the adjudication of his claim in a 
January 2006 statement of the case.  He was also informed of 
the cumulative evidence already of record, and the reasons 
and bases for the determination made regarding the claim, 
which the Board construes as reasonably informing him of the 
information and evidence not already of record that was 
necessary to substantiate his claim.  In addition, the 
appellant had actual knowledge of the aforementioned.  See 
October 2005 statement from the appellant and March 2006 VA 
Form 9.  See generally, Kent v. Nicholson, 20 Vet. App. 1 
(2006).  

The Board is also aware of the considerations of the Court in 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 
regarding the need for notification that a disability rating 
and an effective date for the award of benefits will be 
assigned if service connection or increased ratings are 
awarded.  However, in this case since the claim in question 
is being denied, such matters are moot.

In light of the foregoing, the Board is satisfied that all 
relevant facts have been adequately developed to the extent 
possible and no further assistance to the veteran in 
developing the facts pertinent to the issues on appeal is 
required to comply with the duties to notify and assist.  38 
U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.


ORDER

As new and material evidence has not been submitted, the 
appeal to reopen the claim of entitlement to service 
connection for cause of death for accrued benefit purpose is 
denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs