Citation Nr: 1004036 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 09-19 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death. 2. Whether new and material evidence has been received to reopen a claim of entitlement to Dependents' Educational Assistance pursuant to Chapter 35, Title 38, United States Code. (The issue of whether the appellant's income is excessive for the receipt of nonservice-connected death pension benefits will be addressed in a separate decision). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from October 1941 to November 1945. He died in June 2002. The appellant is his widow (surviving spouse). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO denied service connection for the cause of the Veteran's death and entitlement to Chapter 35 benefits in an October 2002 rating decision, which was confirmed by a June 2007 decision of the Board; the appellant did not appeal the Board decision. 2. The additional evidence received since the June 2007 Board decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate these claims, and does not raise a reasonable possibility of substantiating them. CONCLUSIONS OF LAW 1. With regard to the claims for service connection for the cause of the Veteran's death and entitlement to Chapter 35 benefits, the June 2007 Board decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104 (2009). 2. New and material evidence has not been received since the final June 2007 Board decision to reopen the claims on appeal. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist With regards to Chapter 35 education benefits, the provisions of the Veterans Claims Assistance Act (VCAA) have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. 38 C.F.R. § 3.159(d)(3); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist as to the Chapter 35 benefits claim. With regards to the new and material evidence to reopen the cause of death claim, review of the claims folder reveals compliance with the VCAA. The duty to notify was accomplished by way of VCAA letters from the RO to the appellant dated in February 2008, April 2008, and March 2009. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing her about the information and evidence not of record that was necessary to substantiate her cause of death claim; (2) informing her about the information and evidence the VA would seek to provide; (3) informing her about the information and evidence she was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the March 2009 letter from the RO further advised the appellant of the effective date element, which would be assigned if service connection for cause of death claim was awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In addition, with regard to his Dependency and Indemnity Compensation (DIC) claims, the VCAA notice letters are essentially compliant with the recent Court decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Moreover, with regard to new and material evidence, the April 2008 VCAA notice letter is compliant with the U.S. Court of Appeals for Veterans Claims (Court's) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since it sufficiently explained the bases of the prior denials (i.e., the deficiencies in the evidence when the claims were previously considered). Thus, the appellant has received all required notice in this case, such that there is no error in the content of VCAA notice. With regards to the timing of her VCAA notice, the Board sees the RO did not provide the appellant all necessary VCAA notice prior to initially adjudicating her cause of death claim in May 2008, the preferred sequence. Pelegrini II, 18 Vet. App. at 120 (2004). But the Court in Pelegrini II also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Id. Rather, VA need only ensure the appellant receives (or since has received) content-complying VCAA notice, followed by readjudication of her claim, such that the intended purpose of the notice is not frustrated and she is still provided proper due process. In other words, she must be given an opportunity to participate effectively in the processing of her claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently 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. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice and subsequent SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the timing error was cured. After providing the additional VCAA notice in March 2009, the RO followed by readjudicating the claim in the May 2009 SOC. So each time after providing the required notice, the RO reconsidered the claim - including to address any additional evidence received in response to the notice. So the timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376. As such, the Board concludes prejudicial error in the timing of VCAA notice has not been demonstrated. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). With respect to the duty to assist, this duty has been met as to both the original cause of death claim and also the latter claim to reopen based on new and material evidence. That is, the RO has secured service treatment records (STRs), relevant VA treatment records, and private medical evidence as identified and authorized by the appellant. In addition, VA previously obtained a medical opinion pertaining to the etiology of the Veteran's cause of death consistent with the requirement of 38 U.S.C.A. § 5103A(a). See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The appellant, for her part, has also submitted private medical evidence, a death certificate, several written personal statements, and argument from her representative. There is no indication in the claims folder that the appellant identified and authorized VA to obtain any additional private records. With regard to the Veteran's Social Security Administration (SSA) records, VA can end its efforts to obtain medical records from a Federal agency, including the SSA, if the VA is informed that the requested records do not exist or further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Here, the VA's request for the Veteran's SSA records was met with a negative response in July 2008, with an indication that the records had been destroyed. The VA also issued a Formal Finding of Unavailability for these SSA records in March 2009. Notice of the unavailability of the records was provided to the appellant by the VA. Moreover, in March 2009 and November 2009, the appellant conceded she had no additional evidence to submit. Overall, the Board is satisfied that all relevant evidence identified by the appellant has been secured, and that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Cause of Death with New and Material Evidence Analysis When it is determined that a Veteran's death was service connected, his surviving spouse is generally entitled to DIC with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2009); 38 C.F.R. § 3.5(a) (2009); see generally 38 U.S.C.A. Chapter 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303. To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) a previously nonservice-connected disability that was in fact incurred or aggravated by service; (2) or an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. The Veteran died on June [redacted], 2002. The causes of death listed on the June 2002 death certificate were aspiration pneumonia due to chronic obstructive pulmonary disease (COPD) due to hematuria. No other principal or contributory cause of death was listed at that time. At the time of his death, the Veteran had the following service-connected disabilities: varicose veins with thrombophlebitis of the right lower extremity, rated as 50 percent disabling; deep vein thrombosis of the left lower extremity, rated as 20 percent disabling; and a right wrist scar, rated as 0 percent disabling. The combined service-connected disability rating was 70 percent. See 38 C.F.R. § 4.25 (combined ratings table). The appellant-widow asserts that the Veteran's service-connected bilateral lower extremity disabilities kept him bedridden and allowed his pneumonia to worsen, thereby acting as a contributory cause of death. In the alternative, she also contends that blood clots in his lungs caused by his service-connected bilateral lower extremity disabilities led to a pulmonary embolism, resulting in his death. See January 2004 VA Form 9; June 2006 Appellant's Brief; May 2007 representative statement; February 2008 appellant statement. The RO denied service connection for the cause of the Veteran's death and entitlement to Chapter 35 benefits in an October 2002 rating decision. In a June 2007 decision, the Board confirmed this denial. The appellant did not initiate any appeal of the Board's decision. Therefore, the Board's June 2007 decision, which subsumes the prior RO decision, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104 (2009). The appellant's claim to reopen service connection for the cause of the Veteran's death and entitlement to Chapter 35 benefits was received in September 2007. Therefore, the amended regulations are for application. See 66 Fed. Reg. at 45,620, indicating to apply the revised version of 38 C.F.R. § 3.156 to petitions to reopen filed on or after August 29, 2001. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). The Board denied service connection for the cause of the Veteran's death in its June 2007 decision because it found that the actual causes of death listed on his death certificate - that is, pneumonia, COPD, and hematuria, were not incurred or aggravated during active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, the competent medical evidence of record at that time failed to show that his service-connected lower extremity disabilities were a principal or contributory cause of his death. See March 2007 VA medical opinion; June 2002 death certificate. Evidence of record at the time of the June 2007 Board decision consisted of STRs; private treatment records; VA treatment records; various personal statements by the Veteran and appellant; several VA examinations; argument from the appellant's representative; and a June 2002 death certificate. Evidence received since the June 2007 Board decision consists of lay statements from the appellant; a December 2009 Appellant Brief from her representative; and medical expense reports unrelated to the cause of death claim. The Board finds that the lay statements by the appellant and the December 2009 Appellant Brief from her representative are cumulative of evidence that was previously of record. Specifically, the appellant and representative's statements merely repeat and summarize her earlier theories regarding the cause of the Veteran's death. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In this regard, a lay statement which is cumulative of previous contentions that were considered by the decision maker at the time of the prior disallowance of the claim is not "new" evidence. Bostain v. West, 11 Vet. App. 124, 127 (1998); Reid v. Derwinski, 2 Vet. App. 312 (1992). Where, as here, the determinative issue is one of medical causation, competent medical evidence is required. The Board is not required to reopen a claim solely based upon lay assertions from the Veteran or her representative. Moray v. Brown, 5 Vet. App. 211, 214 (1993). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Indeed, in the Routen decision, the Court specifically noted that "[l]ay assertions of medical causation cannot suffice to reopen a new and material evidence claim under 38 U.S.C. 5108." With respect to the remaining evidence, the Board finds that, although this additional evidence is "new" and, therefore, not cumulative or redundant of evidence on file at the time of the June 2007 Board decision, it nonetheless is not "material" within the meaning of 38 C.F.R. § 3.156(a). Specifically, various medical expense reports submitted by the appellant with respect to her death pension claim do not pertain or relate to her cause of death claim. This evidence therefore does not relate to an unestablished fact necessary to substantiate the cause of death claim, and thus does not raise a reasonable possibility of substantiating the cause of death claim. 38 C.F.R. § 3.156(a). In short, no additional competent medical evidence was submitted demonstrating that the causes of death listed on the death certificate were incurred or aggravated during active military service or that the Veteran's service-connected lower extremity disabilities were a principal or contributory cause of his death. Accordingly, the Board finds no new and material evidence to reopen the claim for service connection for the cause of the Veteran's death. The claim is not reopened. 38 U.S.C.A. § 5108. Moreover, inasmuch as the appellant has not fulfilled this threshold burden of submitting new and material evidence to reopen her finally disallowed claims, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Governing Law and Regulations for Chapter 35 Benefits with New and Material Evidence Analysis Dependents' Educational Assistance (DEA), under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse and children, if the applicable criteria are met. See 38 U.S.C.A. §§ 3500, 3501, 3510, 3512 (West 2002 & Supp. 2009); 38 C.F.R. §§ 21.3020, 21.3021 (2009). Basic eligibility for certification of DEA exists for the spouse, surviving spouse, or child of a Veteran or serviceperson, if the Veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the Veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed forces and is, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power, or (5) is on active duty as a member of the Armed Forces and has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, or air service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2009). In the previous June 2007 Board decision, the appellant's claim of entitlement to DEA benefits under Chapter 35 was denied because the Veteran did not have a permanent total service-connected disability at the date of his death, and he also did not die as a result of a service-connected disability. See 38 U.S.C.A. § 3501 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.807, 21.3021 (2009). Consequently, the statutory and regulatory requirements for Chapter 35 DEA benefits were not met at that time. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). The Board concludes that no evidence received since the final June 2007 Board decision establishes either a permanent total service-connected disability at the date of the Veteran's death, or a service-connected disability resulting in his death. This evidence therefore does not relate to an unestablished fact necessary to substantiate the claim, and thus does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Thus, the Board finds no new and material evidence to reopen the claim of entitlement to Chapter 35 DEA benefits. The claim is not reopened. 38 U.S.C.A. § 5108. ORDER As no new and material evidence has been received, the claim of service connection for the cause of the Veteran's death is not reopened and the appeal is denied. As no new and material evidence has been received, the claim of entitlement to DEA benefits pursuant to 38 U.S.C.A. Chapter 35 is not reopened and the appeal is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs