Citation Nr: 1311985 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-28 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon 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. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to February 1970. He died in October 2004. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2012 the appellant testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Evidence pertinent to the matter on appeal (medical articles) was received contemporaneously with the September 2012 Board hearing. The appellant has waived initial RO consideration of that evidence. The reopened claim of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed May 2005 rating decision, service connection for the cause of the Veteran's death was denied on the basis that there was no competent evidence linking the Veteran's death to his active service or service connected disability. 2. Evidence added to the record since the May 2005 RO decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the appellant's claim for service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The May 2005 RO decision that denied service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 2. New and material evidence has been received and the claim for entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable Board decision below to reopen the claim of service connection for the cause of the Veteran's death, any deficiency as to notice consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006), or as to compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. In general, rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 7105(c) and 38 C.F.R. § 3.105, a final decision by the RO may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C.A. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 C.F.R. § 3.105. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. A December 2005 rating decision denied service connection for the cause of the Veteran's death. The December 2005 RO decision denied the appellant's claim on the basis that there was no competent medical evidence showing that the cause of the Veteran's death was related to his military service. She did not appeal this decision, nor did she submit any additional evidence within a year of that decision, and it became final one year later. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). A claim which is the subject of a prior final decision may be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In May 2007 the appellant requested that the claim be reopened. In a February 2008 rating decision, the RO reopened the claim, denied it on the merits, and the present appeal ensued. As noted, the February 2008 RO decision determined that new and material evidence has been received to reopen the claim. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). The Veteran's death certificate lists chronic obstructive pulmonary disease (COPD), sleep apnea, and atrial fibrillation as the immediate causes of death. He died in October 2004. At the time of the Veteran's death, service connection was in effect for depression, lumbar strain, residuals of an accidental gunshot wound to the right foot with post traumatic arthritis changes of the subtalar and calcaneal-cuboid joints, left ankle strain with plantar fasciitis, left knee patellofemoral pain syndrome, trochanteric bursitis of the left hip, and scars of the left heel and right ankle. He had an overall combined disability rating of 100 percent, which had been in effect since April 1999. Subsequent to the December 2005 RO denial the appellant submitted an April 2011 statement from the Veteran's private physician that essentially indicated that the Veteran's many years of deconditioning due to a sedentary lifestyle caused by chronic pain could have contributed to his death. The Board finds that the April 2011 private physician's statement pertains to an unestablished fact necessary to substantiate the claim (a link between the Veteran's death and his service-connected disabilities), and it raises a reasonable possibility of substantiating the claim. The Board further notes that the old and new evidence of record, considered as a whole, "triggers" VA's duty to assist to provide a medical opinion in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i). On this basis, and consistent with the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received to reopen the claim. ORDER As new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death, the appeal, to this extent, is granted. REMAND In November 2012 the Board requested a medical opinion in an effort to address the medical matters presented by this appeal and in January 2013 such an opinion was received by the Board. In January 2013 correspondence to the appellant the Board enclosed a copy of the medical opinion and requested that the appellant review the medical opinion and return a Medical Opinion Response Form. In response to the January 2013 correspondence, in March 2013 the appellant sent the Medical Opinion Response Form (and additional argument) to the Board and indicated that she wanted to have her case remanded to the AOJ so that it could first review this argument for her claim. Given the appellant's request, the case must be remanded to the AOJ for initial review and consideration. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a) (2012). Accordingly, the case is REMANDED for the following action: The AOJ must readjudicate the issue on appeal with consideration of the additional argument and evidence received since the most recent supplemental statement of the case. If the benefit sought is not granted to the appellant's satisfaction, a supplemental statement of the case should be issued, and the appellant and her representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs