Citation Nr: 1143943	
Decision Date: 11/30/11    Archive Date: 12/06/11

DOCKET NO.  09-04 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina



THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to 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 Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 .



ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1946 to April 1947. He died in 2001. The Appellant is his surviving spouse. 

These matters were last before the Board of Veterans' Appeals (Board) in December 2010 on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the matters for the RO to comply with statutory notice requirements.

The Appellant was scheduled to testify at a personal hearing before a member of the Board, sitting at the RO, in December 2009, but she failed to appear without explanation. Consequently, the request for a hearing is considered to have been withdrawn. See 38 C.F.R. § 20.702(d) (2011).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a) (2) (West 2002).


FINDINGS OF FACT

1. In May 2002, the RO denied the Appellant's claims on the basis that the evidence of record did not establish that the Veteran had died in service, as the result of a service-connected disability, or that he was totally disabled due to service-connected conditions.

2. The Appellant did not appeal the May 2002 denial.

3. Evidence received since the May 2002 denial does not raise a reasonable possibility of substantiating the claim.

CONCLUSIONS OF LAW

1. The May 2002 rating decision denying the Appellant's claims is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011).

2. Evidence received since the May 2002 rating decision is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Assist and Notify

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete claims.  

The Appellant was notified in a June 2007 letter as to the general evidence need to substantiate claims for service connection for cause of death and for DIC benefits. However, this case was remanded in April and November 2010 for the provision of corrective VCAA notice. Corrective notice was mailed to the Appellant in January 2011. The January 2011 letter informed her of the specific information and evidence needed to reopen and substantiate her claims. In compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), the letter advised her of how VA assigns disability ratings and effective dates in compliance with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter also complied with the requirements of Hupp v. Nicholson, 21 Vet. App. 342 (2007), by informing her of the disabilities for which service connection was in effect at the time of the Veteran's death.  

Although the corrective notice was not provided to the Appellant prior to the initial adjudication of her claims, the case was later readjudicated in an October 2011 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also 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 statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Board finds that the duty to notify has been met.    

In regard to the duty to assist, no VA examination has been provided for the petition to reopen the claims. However, VA has no duty to provide an examination or obtain a medical opinion prior to reopening a claim that has been finally denied in a prior decision. 38 C.F.R. § 3.159(c)(4)(iii). The claims file does not reflect that any evidence is outstanding. Although the Appellant wrote letter to a Dr. Bash, asking him to evaluate the claims file on her behalf, there is no indication that he did evaluate the file. Further, VA requested any pertinent records from Dr. Bash, but he did not respond. In October 2008 the Appellant stated that she had no additional evidence to submit.

The action directed in the 2010 remands has been completed in full. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case has been returned to the Board for appellate review. The duties to notify and assist have been satisfied and all evidence pertinent to the claim, and available to VA, has been obtained. There is sufficient evidence on file in order to make a decision and the Appellant has been given ample opportunity to present evidence and argument in support of her claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Additionally, all the evidence in the claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the claimant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but only such evidence as is relevant must be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

New and Material Evidence

The RO denied the Appellant entitlement to death benefits in May 2002. She did not appeal that denial and submitted an April 2007 petition to reopen her claims. The RO denied her petition. Regardless of the RO's actions, the Board has a jurisdictional responsibility to determine whether a claim should or should not be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As no evidence received since the May 2002 denial raises a reasonable possibility of substantiating the claims, the Board must deny the petitions to reopen.

New and material evidence issues are reviewed de novo. VA must examine the bases for the denial in the prior decision. Kent, 20 Vet. App. 1. A claim will be reopened and reviewed if new and material evidence is presented or secured. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 

New evidence means evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 

New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, the Court held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with older evidence of record, it would at least trigger the Secretary's duty to assist by providing a medical opinion. 24 Vet. App. 110   (2010).

If the evidence is new, but not material, the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). "Material evidence" can be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). 

The credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, "Justus does not require the Secretary to consider the patently incredible to be credible." See Duran v. Brown, 7 Vet. App. 216 (1994).

The pertinent evidence of record at the time of the May 2002 denial consisted of the Veteran's service treatment records and VA treatment records. After the denial, additional VA treatment records and the Appellant's lay contentions were added to the record. Although some of this evidence is new, none of it is material.

The Appellant's claim for death benefits was denied because the evidence of record did not establish that the Veteran had died in service, as the result of a service-connected disability, or was totally disabled due to service-connected conditions. At the time of death, he was in receipt of service connection for an anxiety disorder and a right knee disability. His death certificate reflects that he died from prostate cancer without any underlying causes. Hypertension and diabetes are listed as other significant conditions contributing to death, but not resulting in the underlying cause of death.

The Veteran's service treatment records revealed treatment for a right knee disability and a psychiatric disability. They also reflect that he served three (3) months in Alaska.

VA treatment records associated with the record prior to the May 2002 denial show diagnoses and treatments for obstructive sleep apnea, hyperlipidemia, hypertension, osteoarthritis, malignant neoplasm of the prostate, diabetes mellitus, coronary artery disease, depression, and anxiety.

Since the May 2002 decision, additional VA treatment records were added to the claims file; these records reflect continued treatment for the Veteran's diagnoses. The Appellant also subsequently submitted lay statements to VA, copies of VA program descriptions and regulations, and a copy of a letter she wrote to a Dr. Bash asking him to evaluate the claims file on her behalf. Dr. Bash did not respond to VA requests for records and there is no indication that he responded to the Appellant. 

The VA program descriptions state that VA maintains an Ionizing Radiation Registry for veterans possibly exposed to atomic radiation during various activities. The activities include underground nuclear tests conducted at Amchitka Island in Alaska prior to January 1, 1974. The regulations list conditions for which service connection is presumed if a Veteran participated in radiation risk activities. 

In the Appellant's statements, she alleges that the Veteran's prostate cancer was either the direct result of his exposure to ionizing radiation in Alaska or developed from kidney problems caused by VA-prescribed anxiety medication. She also alleges that either radiation exposure or his service-connected anxiety disorder resulted in hypertension and/or diabetes.

On review, the Board finds that the Appellant has not submitted new and material evidence to reopen her service connection claim for the Veteran's cause of death.  The Appellant alleges that the circumstances of the Veteran's service, specifically his alleged exposure to radiation, or his service-connected disabilities caused or hastened his death. However, she has not submitted new and material evidence to support those allegations.

VA treatment notes do not indicate that any relationship existed between the Veteran's prostate cancer and his active duty service or any of his service-connected disabilities. No medical evidence has been submitted linking any kidney disease to the Veteran's anxiety medication or showing that either his hypertension or diabetes is etiologically related to his service or service-connected disabilities. Regardless, there is no evidence that either hypertension or diabetes contributed substantially and materially to his death as required by 38 C.F.R. § 3.312.

Although the Appellant contends that the Veteran was exposed to ionizing radiation in Alaska and his service records show that he was stationed in Alaska for three (3) months, there is no evidence of any atomic testing at that time. His service records show that he was discharged in April 1947, a full decade before any such testing occurred. 38 C.F.R. § 3.309.

The Appellant's contentions are not competent factual evidence and she has not submitted any supportive evidence. Based on the fact that the Veteran was discharged from service long before any atomic testing took place in Alaska, the undersigned finds it patently incredible that he was exposed to ionizing radiation during service. The presumption of credibility that is usually for application in claims to reopen does not apply to the patently incredible. See Duran, 7 Vet. App. 216. 

None of the new evidence, when considered with older evidence of record, would trigger the Secretary's duty to assist by providing a medical opinion. She has not submitted any new evidence that raises a reasonable possibility of substantiating her claims. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110.

There can be no doubt from review of the record that the Veteran rendered honorable and faithful service. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)].

The Board has also considered the benefit of the doubt rule in this case. However, as the preponderance of the evidence is against the claim and the evidence is not in equipoise, there is no basis to apply that rule.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In this case, the Appellant has not provided any positive, material, competent evidence supportive of her contentions. She has presented her own unsupported hypotheses of etiology of cause of death, but no additional evidence raising a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran's death as required by 38 C.F.R. § 3.156. As the evidence is not considered new and material for the purpose of reopening the claim, the appeal must be denied.


ORDER

The petition to reopen a claim of entitlement to service connection for the cause of the Veteran's death is denied. 

The petition to reopen a claim of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs