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