Citation Nr: 0814927	
Decision Date: 05/06/08    Archive Date: 05/12/08

DOCKET NO.  06-08 194	)	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.


ATTORNEY FOR THE BOARD

J. Meawad, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1962 to 
December 1982, with 5 years, 7 months prior active duty.  He 
died in January 2000, and the appellant is the veteran's 
widow.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Manila, Republic of the Philippines, that denied the above 
claim.


FINDINGS OF FACT

1.  In August 2002, the RO denied service connection for the 
cause of the veteran's death, including as a result of 
exposure to Agent Orange.  The appellant was notified of this 
decision and her appellate rights by letter dated February 
10, 2003.  She did not appeal.

2.  Evidence received since the August 2002 RO decision 
denying entitlement to service connection for the cause of 
the veteran's death does not relate to an unestablished fact 
necessary to substantiate the claim, and raises no reasonable 
possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The August 2002 RO decision denying entitlement to 
service connection for the cause of the veteran's death is 
final.  38 C.F.R. § 7105(a) (West 2002); 38 C.F.R. § 20.1100 
(2007).

2.  The evidence received since the RO's August 2002 decision 
is not new and material; thus, the claim of service 
connection for the cause of the veteran's death is not 
reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In an August 2002 decision, the RO denied the claim for 
service connection for the veteran's cause of death.  The 
appellant was notified of this decision and of her appellate 
rights by a letter dated February 2003.  She did not appeal 
and that decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. 
§§ 20.1100.  In the October 2005 rating decision on appeal, 
the RO denied the appellant's application to reopen a claim 
of service connection for the veteran's cause of death.  The 
basis of this denial was that there was no evidence submitted 
following the August 2002 RO decision that pertains to the 
veteran's cause of death due to coronary artery disease.  

To reopen a claim which has been previously denied and which 
is final, the claimant must present new and material 
evidence.  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).

The evidence received subsequent to the final RO decision is 
presumed credible for the purposes of reopening the 
appellant's claim unless it is inherently false or untrue, or 
it is beyond the competence of the person making the 
assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1995); 
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  See also 
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).

At the time of the RO's August 2002 rating decision, the 
record did not establish that the cause of death listed on 
the veteran's death certificate was related to service; or 
that his service-connected lateral collateral ligament tear 
of the left knee with lateral meniscectomy, pilonidal 
cystectomy, or appendectomy scar were in any way related to 
his death.  Since the prior final decision, evidence has been 
added to the claims file.  The additional evidence is not new 
and material.  It does not include any competent evidence 
that cures the prior evidentiary defect or provides any other 
basis for reopening the claim.

The evidence of record at the time of the August 2002 rating 
decision consisted of the veteran's service medical records; 
a June 1983 VA examination, which consisted of orthopedic and 
audiological examinations; the veteran's death certificate, 
which indicated that the veteran died from acute coronary 
syndrome due to coronary artery disease; and statements from 
the appellant contending that the veteran death was related 
to service, including exposure to Agent Orange and other 
herbicides.  The RO determined that service connection for 
the veteran's cause of death was not warranted because the 
evidence did not show a relationship to his military service 
or service-connected disabilities.

Evidence received since the August 2002 rating decision 
consists of copies of service medicals records; VA treatment 
records from July 1999 to January 2000; records from the 
Naval Regional Medical Center dated September 1982 showing 
surgery for right ureterolithotomy, excision of two skin 
papillomas, and bilateral vasovasostomy; the veteran's death 
certificate; and additional statements from the appellant.  

The only evidence of record submitted since the August 2002 
decision that is new are the VA treatment records and Naval 
Regional Medical Center records.  The remaining evidence is 
duplicative of the evidence of record that existed prior to 
the August 2002 decision.  

The VA treatment records show treatment for coronary artery 
disease and note previous treatment in August 1997 and July 
1999, but the records do not provide an opinion as to any 
underlying pathology or etiology for such.  As stated above, 
the Naval Regional Medical Center records show that the 
veteran underwent surgery for right ureterolithotomy, 
excision of two skin papillomas, and bilateral vasovasostomy.  
While the VA treatment records from April 2004 to August 2005 
are new, they are not material within the meaning of 38 
C.F.R. § 3.156(a) because they do not relate to an 
unestablished fact necessary to substantiate the claim and 
they do not raise a reasonable possibility of substantiating 
the claim.  The record still lacks competent evidence of a 
nexus between the veteran's cause of death and his active 
duty service or service-connected disabilities.  

Accordingly, the Board finds that the evidence received 
subsequent to August 2002 is not new and material and does 
not serve to reopen the veteran's claim for service 
connection for the veteran's cause of death.  38 U.S.C.A. §§ 
5108, 7105; 38 C.F.R. § 3.156(a).  The appeal is denied.  

Notice and Assistance

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a).  VA must request that the 
claimant provide any evidence in the claimant's possession 
that pertains to a claim.  38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; (3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 
18 Vet. App.112 (2004).  The notice requirements may be 
satisfied if any errors in the timing or content of such 
notice are not prejudicial to the claimant.  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The RO provided the appellant pre-adjudication notice by a 
letter dated in August 2005.  The notification substantially 
complied with the requirements of Quartuccio v. Principi, 16 
Vet. App. 183 (2002), identifying the evidence necessary to 
substantiate a claim and the relative duties of VA and the 
claimant to obtain evidence; and Pelegrini v. Principi, 
18 Vet. App. 112 (2004), requesting the claimant to provide 
evidence in his or her possession that pertains to the 
claims.  

The August 2005 notice letter included the criteria for 
reopening a previously denied claim, the criteria for 
establishing service connection, and information concerning 
why the claim was previously denied.  The Board finds that 
adequate notice has been provided, as the appellant was 
informed about what evidence is necessary to substantiate the 
elements required to establish service connection that were 
found insufficient in the previous denial.  Kent v. 
Nicholson, 20 Vet. App. 1 (2006).

In this case, although the notice provided did not address 
either the rating criteria or effective date provisions that 
are pertinent to the appellant's claim, such error was 
harmless given that service connection is being denied, and 
hence no rating or effective date will be assigned with 
respect to this claimed condition.  

A VA examination is not required in this case because the 
appellant has not submitted new and material evidence to 
reopen the claim.  See 38 C.F.R. § 3.159(c)(4)(iii).  All 
known and available records relevant to the issues on appeal 
have been obtained and associated with the veteran's claims 
file; and the veteran has not contended otherwise.  

VA has substantially complied with the notice and assistance 
requirements and the veteran is not prejudiced by a decision 
on the claim at this time.



ORDER


The claim for service connection for the veteran's cause of 
death is not reopened, and the appeal is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs