Citation Nr: 1229271 Decision Date: 08/24/12 Archive Date: 08/30/12 DOCKET NO. 10-00 093A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to July 1970. He died in August 1979. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which determined that the appellant had failed to submit new and material evidence sufficient to reopen the claim of service connection for the cause of the Veteran's death. The Board remanded the instant claim in September 2011 for further development. 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. Service connection for the cause of the Veteran's death was denied by rating decision in November 1979; however, the appellant did not timely appeal the decision within one year of the December 1979 notice of the denial. 2. Evidence received subsequent to the December 1979 notice of the denial does not raise a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The November 1979 RO decision which denied service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2011). 2. Evidence submitted subsequent to the December 1979 notice of the denial of service connection for the cause of the Veteran's death is not new and material. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(a), 20.1103 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2011). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and 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, VA 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. In this case, the notice letter provided to the Veteran in September 2008 was not compliant with Kent. Therefore, the Board remanded the claim for the RO/AMC to provide a Kent-compliant letter which was done in September 2011. The letter stated the bases of the former denial and what was necessary to substantiate the elements required to substantiate service connection which was lacking in the previous denial. The appellant was told that the claim for cause of death was denied because there were no disabilities incurred in service or within the presumptive period following discharge, which caused the Veteran's death or which materially or substantially contributed to the cause of the Veteran's death. 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). Although sufficient notice of the VCAA pursuant to Hupp was not initially provided, pursuant to the Board's September 2011 remand, a corrective letter was sent to the appellant in September 2011. This letter identified the Veteran had no service-connected disabilities and explained what evidence was necessary to establish a claim pursuant to Hupp. Next, VA has a duty to assist an appellant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent VA treatment records. Here, following the Board's remand, the RO attempted to obtain the Veteran's terminal hospitalization records. It was informed that there were no records to provide. The appellant was informed of this fact. As such, further efforts to obtain these records would be futile. A VA medical opinion was not obtained in this matter, however, none is required. With regard to cause of death claims, the duty to assist requirement under 38 U.S.C.A. § 5103(a) requires VA to make "reasonable efforts" to provide assistance if requested, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345(Fed. Cir. 2008). VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." See 38 U.S.C.A. § 5103(a)(2) (West 2002). Here, there is no indication that the Veteran's cause of death was in any way related to his active military service. He did not have heart problems during service and there is no probative evidence to suggest that his cause of death is related to service. The appellant was offered a Board hearing and she declined. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist 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). New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court further held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The appellant's claim for service connection for the cause of the Veteran's death was denied in a November 1979 rating decision. Evidence of record showed the Veteran was not service-connected for any disabilities during his lifetime and there were no service connected disabilities shown of record. Evidence showed that the Veteran died of a cardiopulmonary arrest, due to an anterior myocardial infarction and cardiogenic shock. Available service treatment records also showed no evidence of treatment, complaint or a diagnosis of a cardiac or a cardiopulmonary condition. The appellant did not appeal the November 1979 denial within one year of the December 1979 notification letter. A review of the record also fails to show receipt of evidence between December 1979 to December 1980 that would be considered "new and material". The provisions of 38 C.F.R. § 3.156(b) explicitly states that new and material evidence "received prior to the expiration of the appeal period" will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See also Buie v. Shinseki, 24 Vet. App. 242 (2010) (held that if material statements or evidence are submitted within one year of the corresponding regional office decision, the Board should consider whether the statements included the submission of new and material evidence). Since no evidence was submitted or received prior to the expiration of the appeal period of December 1980, application of 3.156(b) is inapplicable. The November 1979 rating decision remains final. The appellant filed to reopen the claim for service connection for the cause of the Veteran's death in September 1988. The RO informed her that her one year time limit had expired within which to perfect her appeal and her claim was final. She was told that she could reopen her claim with the presentation of new and material evidence to support her claim. She was told such evidence should be submitted within 60 days but no later than one year from the date of the December 1998 letter. No response was provided by the appellant within that period of time. The evidence received since the December 1979 notice of a final decision includes duplicate service treatment records, the Veteran's DD 214s, prior denial letters, and an April 2008 internet article on hookworm infections. The Veteran's duplicate service treatment records, DD 214s, and prior denial letters are not new and material. These records were previously submitted to agency decisionmakers and reviewed in connection with the previously denied claim. The records are not new and material to reopen the claim. The April 2008 internet article on hookworms is also not new and material. Although it is new in that it was not previously before agency decisionmakers, it is not material because it did not relate to an unestablished fact necessary to substantiate the claim. This article indicated, in pertinent part, that if a hookworm infection lasts a long time, or is very severe, there may be slow growth, heart problems, or heart failure. This evidence does not reveal that a preexisting hookworm disability was permanently aggravated by service, nor does it show that the Veteran had a heart condition in service or within one year of service discharge. Therefore, this internet article is not new and material and insufficient to reopen the claim for service connection for the cause of the Veteran's death. As the evidence received since notice of the final denial in December 1979 is not new and material, the application to reopen the claim must fail. As the preponderance of the evidence is against the claim for new and material evidence to reopen the claim for service connection for the cause of the Veteran's death, the benefit of the doubt rule is not applicable. ORDER New and material evidence has not been received to reopen the claim for service connection for the cause of the Veteran's death. The appeal is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs