Citation Nr: 1127258 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 08-09 615 ) 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 received to reopen a claim of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Jessica M. Flage, Attorney at law ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who had recognized active service from September 1944 to November 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Manila, Regional Office (RO). In August 2009 the Board issued a decision which found that new and material evidence had not been presented to reopen the appellant's claim for service connection for the cause of the Veteran's death. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), resulting in a Joint Motion for Remand (Joint Motion) by the parties. By an October 2010 Order, the Court remanded this matter for compliance with the instructions in the Joint Motion. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Unappealed June 1998 and April 1999 rating decisions denied the appellant's claim of service connection for cause of the Veteran's death based essentially on a finding that the septicemia due to intestinal obstruction that caused his death was not shown to be related to his service; a February 2003 rating decision declined to reopen the claim, and the appellant initiated (and perfected) an appeal of that determination, but withdrew her appeal before the Board entered a decision in the matter; the February 2003 rating decision is the last final decision in the matter of service connection for the cause of the Veteran's death. 2. Evidence received since the February 2003 rating decision does not tend to show that the septicemia due to intestinal obstruction that caused the Veteran's death was related to his service; does not relate to the unestablished fact necessary to substantiate the claim of service connection for cause of the Veteran's death: and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for the cause of the Veteran's death may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). An April 2007 letter advised the appellant that because there was a prior final decision in the matter, she would have to submit new and material evidence to reopen the claim; of the basis for the prior denial of her claim; and of what type of evidence would be new and material. Furthermore, she was advised of the information required of her to enable VA to obtain evidence in support of her claim, the assistance that VA would provide to obtain evidence and information in support of her claim, and the evidence that she should submit if she did not desire VA to obtain such evidence on her behalf. This notice, provided prior to the initial adjudication of the instant claim, was in substantial compliance with the notice requirements of the VCAA, and the guidelines of the Court regarding the specific notice required in claims to reopen. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant has not received notice fully Hupp-compliant; she was not notified of how to substantiate a claim based on a service-connected disability. However, inasmuch as the Veteran had not established service connection for any disability during his lifetime, and did not have a claim for service connection pending at death, whether she received such notice is moot. She also was not advised of the criteria for establishing an effective date of an award, (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)); the matter of such notice is also moot, as effective date criteria become significant only upon the grant of a claim (which does not occur herein). Notably also, the Supreme Court has held that except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim, the burden of proving harmful error must rest with the party raising the issue. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The appellant has not alleged that notice has been less than adequate, or that she is prejudiced by a notice defect. Regarding VA's duty to assist, the appellant has identified (on a June 2007 Form 21-4142) Dr. A. L. V. as the Veteran's treatment provider (from February 1946 to June 1947). A January 2002 VA Memorandum shows that A. L. V. has been a regular contributor to veterans' and widows' claims at the Manila RO for at least 20 years. His certificates usually allege treatment for the specific conditions being claimed for service connection and often show treatment starting immediately following the veteran's release from active duty. Often his certificates report treatment continuing "to the present." He claims he completed medical studies at the University of the Philippines in 1939, and passed a licensing examination in 1940. However, he has been unable to produce any documentation of his medical credentials. An intensive field investigation was conducted in June and July of 2001, which failed to find any evidence of his medical training or credentials to practice medicine. The Philippine Professional Regulation Commission has certified that he has never been licensed to practice medicine in the Philippines. As a result of the field investigation, the RO concluded that A. L. V. has no medical qualifications and is part of an active claims fixing operation in the Pangasinan area. Any "medical certificates" bearing his name are to be accorded no probative value. Accordingly, the RO did not attempt to obtain any treatment records/certificates from Dr. V. The Board acknowledges that for the purpose of reopening a claim the credibility of newly received evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, however, as it has been found that Dr. V. is a notorious claims fixer and that he is not listed in the registry books of the Board of Medicine which contain the names of those duly authorized to practice medicine in the Philippines, the Board finds that there is no need to follow up on such evidence; as there is no reasonable possibility that such evidence would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2). All pertinent treatment records, to the extent possible, have been secured. The Board has also considered whether a VA opinion is necessary. As there is no evidence that the cause of the Veteran's death may be associated with an injury, disease, or event in service, referral for an opinion as to a possible relationship between the Veteran's cause of death and his service is not necessary. Notably, in a claim to reopen the duty to assist by obtaining a medical opinion does not attach unless the claim is indeed reopened See 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet App 79 (2006). VA's duties to notify and assist are met. Criteria, Evidence and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Generally, a rating decision denying a claim for VA benefits that is not appealed is final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to the claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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 of the evidence already of record when the last final denial of the claim was made, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Unappealed June 1998 and April 1999 rating decisions denied the appellant's claim of service connection for cause of the Veteran's death based essentially on a finding that it was not shown that the septicemia due to intestinal obstruction that caused his death was not related to his service. Those decisions are final. 38 U.S.C.A. § 7105. A February 2003 rating decision declined to reopen the appellant's claim of service connection for the cause of the Veteran's death. The appellant initiated (and perfected) an appeal of that decision, but withdrew her appeal in July 2004. Under 38 C.F.R. § 20.204, an appellant may withdraw an appeal at any time prior to the issuance of a final Board decision on the matter. Consequently the February 2003 rating decision is also final, and is the last final decision in this matter. 38 U.S.C.A. § 7105. The evidence of record at the time of the February 2003 rating decision consisted of the Veteran's service records, which show no disabilities; a June 1954 operative report for stomach surgery from Manila Central University; medical certifications from J. A., M.D.; affidavits from the Veteran's comrades attesting that he often complained of stomach discomfort in service; a 1974 letter from V. B. B., M.D., indicating that he treated the Veteran for stomach illness in 1946; the Veteran's death certificate which lists the cause of death as septicemia due to generalized peritonitis due to intestinal obstruction with adhesion and anastomotic leak; and several statements from the appellant. Evidence received since the February 2003 rating decision consists essentially of the appellant's statements and a signed June 2007 Form 21-4142 identifying Dr. A. V., Manila Central University (June 1954 operation) and Dr. B. B. as the Veteran's treatment providers. As the claim was previously denied because it was not shown that the Veteran died from a service related disability, for additional evidence received to be new and material, it must relate to this unestablished fact, i.e., it must show that he died from a service related disability. In identifying Dr. V. as the Veteran's treatment provider the Form 21-4142 is not material evidence, as Dr. V. has been identified as a regular contributor to fraudulent claims whose statements are to be afforded no probative value. To the extent that the form identifies Dr. B.B. as another provider, it is not new evidence, as he had been previously identified. The appellant's period of recognized service ended in November 1945, and he married the appellant several years later, in July 1948. In a written statement received in April 2007 the appellant stated that the Veteran's "disease /injury occurred and manifested while in the guerrilla service" and "only [sic] severe and manifested just after his discharged [sic] when he engaged in farming." In a June 2007 statement the appellant reported that before their marriage his relatives told her that the Veteran suffered from an illness manifested by abdominal pains and she reported that he complained of "severe stomach pains" after their marriage. In October 2007 she stated that "sometime in year 1947 before our marriage . . . he often complain of severe stomach pains." These statements are presumed credible in a claim to reopen. The Joint Motion directed that the Board must address whether the appellant's lay statements were new and material with regard to showing either a continuity of symptomatology sufficient to establish nexus or evidence of treatment for a stomach condition within the presumptive period. Certain chronic diseases (to include peptic ulcer) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for peptic ulcer). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In this regard, the Joint Motion noted that a two-step analysis was required. First, the Board must determine whether a stomach condition is the type of disability for which lay evidence could be competent evidence as to etiology, and, if so, the Board must then weigh the evidence against the other evidence of record. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Compare Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). As an initial matter, while the Veteran was competent to describe his symptoms of stomach problems as these are things within the realm of the Veteran's personal knowledge, the appellant is one step removed from the personal experiences of the Veteran. All she is competent to describe is her observations of the Veteran's symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the appellant has not indicated whether she even knew the Veteran during service or during the presumptive period [i.e., for ulcer disease as a chronic disability under 38 U.S.C.A. § 1112]. She has indicated "sometime in 1947 [the presumptive period would have ended in November 1946]" he complained of stomach pain. The evidence does not show that she even knew the Veteran before 1947, she is not competent to describe her observations of the Veteran's symptoms prior to the time that she knew him. For the same reason, the lay statements are not competent evidence of continuity. See 38 C.F.R. § 3.303(b). Further, the appellant reported that before she married the Veteran in 1948 she learned from his relatives that he had abdominal pain. This information is twice removed from the personal experiences of the Veteran and is not a report of her own observations but is rather information that was passed on to her by others who observed the Veteran. As such, it is not probative evidence, but merely hearsay. With respect to the appellant's statements regarding the Veteran's stomach condition that she observed when she knew him, she is not competent to identify or provide the etiology of such a disorder as these are determinations "medical in nature" and are not capable of lay observation. An opinion as to the existence of a stomach disorder and/or an ulcer or the relationship between a stomach disorder and events in service requires more than can be determined by a layperson through personal knowledge, and would likely require clinical testing or research in medical literature. In fact, the issue involves a highly complex medical question concerning an internal physical process. In other words, the appellant is not competent to opine, for example, that the Veteran's stomach disorder was caused by poor nutrition in service he described after service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). No factual foundation has been made to establish that the appellant is qualified through education, training, or experience to offer a medical diagnosis or establish etiology of the claimed condition. Hence, her statements regarding etiology or diagnosis with respect to a stomach disorder or ulcer are not competent evidence. For the same reason, the lay statements are not competent evidence of continuity. See 38 C.F.R. § 3.303(b). The central issue concerns whether the deceased Veteran had a digestive disorder related to his active duty service or whether an ulcer was manifested within a year of his separation from service. This issue involves a question of causation that is beyond a lay observable cause-and-effect relationship. For these reasons, while the appellant's statements that the Veteran's death causing stomach disorder began during service and that he was treated for such shortly after service are new, they are not material, and do not suffice to raise a reasonable possibility of substantiating her claim. In light of the foregoing, the Board concludes that the additional evidence received since the September 2003 rating decision is either cumulative (and not new) or nonprobative (and not material). No evidence received since February 2003 pertains to the unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death, i.e., a nexus between his death-causing septicemia due to intestinal obstruction and his service, or raise a reasonable possibility of substantiating the claim. Therefore, the additional evidence received is not new and material, and the claim of service connection for the cause of the Veteran's death may not be reopened. ORDER The appeal to reopen a claim of service connection for cause of the Veteran's death is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs