Citation Nr: 1103362 Decision Date: 01/26/11 Archive Date: 02/01/11 DOCKET NO. 08-33 056 ) 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 entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran had recognized guerrilla service from April 1945 until January 1946 and had regular Philippine Army Service in January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, Republic of the Philippines. The appellant claims as the Veteran's wife. Please note 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. In rating decisions of September 2006 and December 2007 decision, the RO denied a claim of entitlement to service connection for the cause of the Veteran's death. 2. The evidence added to the record since September 2006, when viewed by itself or in context of the entire record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the Veteran's death. CONCLUSION OF LAW The September 2006 rating decision denying service connection for the cause of the Veteran's death is final. New and material evidence has not been received to reopen the claim to establish service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Such a letter was sent to the Veteran in September 2007, thus meeting the requirements of notice as related to Kent. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); 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 an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the claimant in September 2009 that addressed the elements of notice. The letter informed the appellant of what evidence was required to substantiate the claim and of the division of responsibility between VA and a claimant in developing an appeal. The letter also informed the appellant of what type of information and evidence was needed to establish an effective date. Therefore, the Veteran was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Furthermore, the claim was readjudicated with the issuance of a Supplemental Statement of the Case in January 2010. The appellant has not indicated any prejudice caused by this timing error, and the Board finds no basis for finding prejudice against the appeal of the issue adjudicated in this decision. See Shinseki v. Sanders, 129, S. Ct. 1696, (U.S. 2009). Based on the foregoing, adequate notice was provided to the claimant prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the appellant in the development of the claim. However, under VCAA, VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, VCAA provides that VA shall make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). Because the claim of service connection for the cause of the Veteran's death is not reopened, the duty to assist does not apply to the claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Application to Reopen Service connection for the cause of the Veteran's death was previously addressed and denied in a December 2007 rating decision. The appellant was informed of the decision and of her right to appeal. When a claimant fails to timely appeal an RO decision denying his claim for benefits, that decision becomes final and can no longer be challenged. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. In this case, following the issuance of the December 2007 rating decision denying service connection, the appellant did not submit a Notice of Disagreement. Accordingly, the denial of December 2007 is final. Pursuant to 30 U.S.C.A. § 5108, however, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. If it is determined that new and material evidence has been submitted, the claim is reopened and VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for her claim has been satisfied. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the appellant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that where a claim has been initially denied and new and material evidence is submitted within one year of the RO's initial determination (i.e. the appeal period), the evidence will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" and prevents an initial determination from becoming final. 38 C.F.R. § 3.156(b) (2010). Here, a rating decision was issued in December 2007 and in March 2008 the claimant submitted additional evidence. The RO issued a new rating decision in March 2008 in which the additional evidence was considered. It is unclear, however, if the RO considered such evidence as having been filed in connection with the claim as pending from the beginning of the appeal period, or if the March 2008 rating decision was intended as an independent rating decision. Although evidence was submitted within one year of the December 2007 rating decision, the Board finds that it was not new and material evidence. Thus the added evidence did not prevent finality from attaching to the December 2007 rating decision. Accordingly, the rating decision of December 2007 is final and decision on appeal is that of March 2008. The Board also notes that service connection for the cause of the Veteran's death was denied in June 2002, March 2003, June 2006 and September 2006. In each case notice of the denial was provided and in each case the claimant did not appeal the decision. Each of these decisions is final. The Veteran died on October [redacted], 1988 of gastric carcinoma. The appellant's claim is that the cause of his death, gastric carcinoma, is entitled to service connection. In the prior final decision of December 2007, the RO denied entitlement to service connection for the cause of the Veteran's death due to a lack of evidence relating his fatal gastric carcinoma to service, or showing that it developed within one year of separation from service. The evidence at the time of the prior denial included the appellant's claims, certificates of the Veteran's death showing the fatal cause to have been gastric carcinoma, evidence of the Veteran's dates of qualifying service, and reports of discharge examination documenting that at separation the Veteran's abdominal viscera was normal. Additional service records did not include any reference to a disease or injury related to gastric carcinoma. A letter from March 1975 stated that the Veteran was "physically fit to work," and was signed by a physician. April 2002 and July 2007 statements indicated that prior to his death, the Veteran had been hospitalized from September 1988 through October 1988 for acute ruptured peptic ulcer pylorus secondary to fibrinopurulent peritonitis, and cholecystitis, and that during his hospitalization an emergency exploratory laparotomy had been performed. In sum, the evidence showed that the Veteran had qualifying service, that his abdominal viscera was normal at separation, that in 1988 he was hospitalized due to an acute ruptured peptic ulcer, that he died of gastric carcinoma, and that the appellant believed the fatal cause of death was related to service. Following denial of entitlement to service connection for the cause of the Veteran's death in December 2007, VA sent the appellant a letter informing her of the RO's denial and explaining her procedural and appellate rights. The appellant did not appeal from the determination and it became final. 38 U.S.C.A. § 7105 (2010). In March 2008 an application to reopen the claim was submitted. The application was denied in a March 2008 rating decision and the appellant appealed to the Board. Since the last final denial in 2007, evidence added to the record includes statements by the appellant endorsing a connection between the cause of the Veteran's death and his service. Additionally, in March 2007, symptoms of gastroesophageal reflux disease had improved with increased dose of a medication called omeprazole. Partially legible notes from March 1948, June 1952 and August 1958 appear to indicate prescriptions for kremil and santax. In submitted statements, the appellant averred that the Veteran took these medications to relieve stomach symptoms, and that in 1947 he had revealed to her that he had cancer of the stomach. In addition, the Veteran's identification card was submitted. The Board notes that the appellant's March 2008 Notice of Disagreement was received within one year of the December 2007 rating decision. However, the appellant specifically identified that she was submitting the Notice of Disagreement in connection with the March 2008 rating decision. Even if the Board were to accept the March 2008 Notice of Disagreement as timely and applicable to the December 2007 rating decision rather than the rating decision of March 2008, the Board's analysis is the same. In such case, the previous decision of September 2006 remains final, and the evidence submitted since that decision would also include a copy of a certification showing that the Veteran had been hospitalized in 1988. While new, such document is cumulative of a hospitalization certification considered in 2002. In total, evidence submitted since the last final denial includes the appellant's application to reopen her claim; records of medical prescriptions in 1948, 1952 and 1958; the Veteran's identification card; and lay statements from the appellant averring to the Veteran's endorsement of stomach cancer in 1947. Of the newly associated evidence, the Board finds that the submitted prescriptions are not new and material as they do not relate to the fundamental reason for the prior denial. Specifically, they do not tend to show that the cause of the Veteran's death, gastric carcinoma, was incurred in service. The same is true of the Veteran's identification card. While not of record at the time of the last final denial, it is of no probative value in establishing the appellant's claim. The Board has carefully considered the claimant's September 2008 statement in which she indicated that "[s]ometime in December 1947, [the Veteran] did inform me that he had cancer of the stomach. I do not know exactly how he gathered this information." The Board recognizes that, if true, these facts go directly to the heart of the matter of the appellant's claim. As noted above, in evaluating whether evidence is "new and material," the credibility of that evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, the Court has also clarified that "Justus does not require the Secretary to consider the patently incredible to be credible." Duran v. Brown, 7 Vet. App. 216 (1994). In this case, the appellant's sudden revelation regarding a statement by the deceased more than 60 years prior is patently incredible. Specifically, not only can the Board not ignore the flagrantly self-serving character of the statement, we also find incredible that the Veteran would have been diagnosed with cancer of the stomach in 1947 yet not succumb to the disease for another 41 years of minimal, if any, medical treatment. In short, the claim was previously denied for a lack of evidence relating to the Veteran's fatal gastric carcinoma to service or showing that it developed within one year a service. Since that time no new evidence has been submitted to remedy this defect in the claim. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The application to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. ORDER The application to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs