Citation Nr: 1315040	
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  11-02 954	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and Son



ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The Veteran served on active duty from November 1940 to January 1946.  He died on May [redacted], 2002.  The appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

The the claim of entitlement to service connection for the cause of the Veteran's death was last denied by the Board in an April 2004 decision.  The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  The Court affirmed the April 2004 Board's decision in November 2006.

Thereafter, the appellant sought reconsideration of the April 2004 Board decision on the basis of clear and unmistakable error (CUE).  She withdrew this motion during her March 2013 hearing before the Board.  In any case, the Court's decision bars any subsequent readjudication by the Board with respect to the issue.  38 C.F.R. § 20.1400(b) (2012).  Where, as here, the Court affirms a determination by the Board on a particular issue, the decision of the Board is subsumed by that of the Court.  Therefore, the April 2004 Board decision is not subject to revision based on CUE.  Id.; see also Disabled American Veterans v. Gober, 234 F.3d 682, 293 (Fed. Cir. 2000); May v. Nicholson, 19 Vet. App. 310 (2005). 

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).

FINDINGS OF FACT

1.  The appellant's claim seeking entitlement to service connection for the Veteran's cause of death was last denied by the Board in an April 2004 Board decision.  

2.  The appellant appealed this decision to the Court, which affirmed the April 2004 Board decision in November 2006.

3.  Evidence received since the final April 2004 decision does not raise a reasonable possibility of substantiating the claim and, is therefore, not new and material evidence.


CONCLUSION OF LAW

The April 2004 Board decision is final, and the criteria for reopening the claim of entitlement to service connection for the Veteran's cause of death have not been met.  38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Assist and Notify

With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011).
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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO's pre-adjudication January 2010 letter satisfied VA's notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The January 2010 letter also told the appellant why the prior cause of death claim was denied in April 2004 and what would constitute "new" and "material" evidence to reopen the claim.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  

In addition, the duty to assist the appellant has also been satisfied in this case.  The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In regard to service connection claims, the duty to assist also include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  In this case, the appellant's claim is a claim to reopen and, therefore, VA's responsibility extends to requesting relevant evidence from any new source identified by the appellant, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties to the appellant with respect to that particular claim.  VA does not have a duty to obtain a medical opinion if the claim is not reopened.  38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii).  As discussed above, in this case, the RO complied with VA's notification requirements and informed the appellant of the information and evidence needed to substantiate her claim.  Since no new and material evidence has been submitted in conjunction with the recent claim, a new medical opinion is not required.  Thus, VA has satisfied the duty to assist the appellant.


New and Material Evidence

The Veteran died on May [redacted], 2002.  Thromboembolism of the pulmonary arteries, of unknown origin, was listed as the primary cause of death and arteriosclerotic coronary artery disease was listed as a contributory cause of death.  At the time of the Veteran's death, service connection was in effect for a skin disorder, post x-ray therapy, rated 50 percent disabling; a chronic disorder of salivary glands, with impairment of swallowing and loss of salivation due to radiation therapy, rated 10 percent disabling; and an adjustment disorder, with depressive mood, rated as 10 percent disabling.  

The appellant sought service connection for the cause of the Veteran's death claiming his service-connected disorders prevented him from swallowing and eating.  The appellant contended that his loss of weight and malnourishment caused or aggravated his death.  The RO denied her claim in January 2003 rating decisions, and the appellant ultimately perfected her appeal to the Board.  The Board denied the appeal of this issue in an April 2004 decision.  The appellant appealed the April 2004 Board decision to the Court, which affirmed the Board's decision in a November 2006 Court Order.  For these reasons, the April 2004 Board decision is final.  38 U.S.C.A. § 7104.

Although a decision is final, a claim will be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  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.  "New" evidence means existing evidence not previously submitted to VA.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim.  See 38 C.F.R. § 3.156(a).  The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).   

At the time of the April 2004 Board decision, the record contained service treatment records confirming x-ray radiation therapy for a skin condition, but silent as to any cardiovascular or pulmonary disorders.  The record also contained the Veteran's death certificate, autopsy report, VA and private treatment records leading up to the Veteran's death, and a VA cardiologist's opinion dated in February 2004 finding that the Veteran's impairment of swallowing did not contribute substantially or materially to the death of the Veteran.

Since April 2004, the appellant now claims she believes the Veteran's in-service radiation exposure caused or aggravated his heart and/or pulmonary conditions, which led to his demise.  She does not believe these conditions began in service, but rather the Veteran's confirmed in-service radiation exposure ultimately led to the development of both pulmonary and cardiovascular disease.

Thromboembolism of the pulmonary arteries and arteriosclerotic coronary artery disease, however, are not diseases listed presumptively linked to radiation-exposed veterans.  38 C.F.R. § 3.309(d) (2012).  Where a presumption is found inapplicable, a claimant is not precluded from establishing service connection for disability due to proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In support of her claim, the appellant submitted an autopsy report and numerous statements from the private pathologist who conducted the Veteran's autopsy, Dr. B.  The autopsy report is cumulative of the medical evidence and death certificate of record at the time of the prior denial.  Specifically, the autopsy report, completed by Dr. B., concluded that the Veteran died of thromboemolism of the bilateral pulmonary arteries, of unknown origin, and arteriosclerotic coronary artery disease.  Accordingly, this evidence is cumulative, as the Veteran's immediate and contributory causes of death were already of record at the time of the April 2004 denial, and therefore, is not new and material evidence. 

The appellant also submitted statements from Dr. B.  In a January 2011 statement, Dr. B. opined "it is my opinion that [the Veteran's] radiation therapy for which the Veteran was exposed in military service maybe affected his cardiovascular system."  (Emphasis added).  The appellant specifically asked Dr. B. to make a more definitive opinion using the phrase "at least as likely as not."  In a May 2011 statement, the Dr. B. responded "while the radiation therapy was highly possible the underlying cause of [the Veteran's] arteriosclerotic cardiovascular system, I can't state with certainty that it was, and therefore I cannot make such a strong conclusive statement."  

Dr. B.'s opinions are too speculative to give rise to a reasonable possibility of substantiating the claim and therefore, are not new and material evidence.  See Bostain v. West, 11 Vet. App. 124, 128 (1998) (holding that a medical opinion expressed in terms of "may" is too speculative to be new and material evidence); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a medical opinion expressed in terms of "may" is too speculative to be new and material evidence); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (finding on a claim to reopen the issue of service connection, statement from physician about possibility of link was too general and inconclusive to constitute material evidence to reopen).

Because an award of benefits cannot be based upon a speculative medical opinion, Dr. B.'s opinions do not raise a reasonable possibility of substantiating the appellant's claim and, therefore, are not new and material evidence.  See McLendon v. Nicholson 20 Vet. App. 79, 85 (2006); Bloom v. West, 12 Vet. App. 185, 187 (1999).  Accordingly, the claim of entitlement to service connection for the cause of the Veteran's death is not reopened.

As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

As new and material evidence has not been submitted, the issue of entitlement to service connection for the Veteran's cause of death is not reopened; the appeal is denied.



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs