Citation Nr: 1316197 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 06-06 966 ) 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 S. Higgs, Counsel INTRODUCTION The Veteran had active service from February 1943 to February 1946. The appellant claims as his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO denied the appellant's application to reopen her previously denied claim for entitlement to service connection for the cause of the Veteran's death. In April 2008, the Board denied the claim. In June 2009, counsel for the appellant and VA filed a Joint Motion with the Court to vacate and remand the April 2008 Board decision. In a June 2009 Order, the Court granted the Joint Motion. In February 2010 and April 2011, the Board remanded this matter for actions consistent with the June 2009 Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a January 1988 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 2. In a rating decision dated in April 2001, the RO reopened the appellant's claim and denied service connection for the cause of the Veteran's death on the merits; she did not appeal. 3. The evidence received since the April 2001 rating decision is cumulative or redundant of evidence previously of record, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the Veterans' death. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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). During the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. Id. A March 2003 letter sought to advise the appellant that her claim had been denied because the evidence failed to show that the Veteran's death was due to a service-connected disease or injury. It sought to explain the meaning of new and material evidence and listed the evidence of record. In a July 2004 RO letter the RO sought to apprise the appellant of the evidence necessary to support a claim of entitlement to service connection for the cause of the Veteran's death. A June 2005 letter sought to explain the VCAA. In the letter the RO sought to explain the evidence necessary to support the appellant's claim. She was asked to submit various documents. The RO also sought to explain how the appellant could reopen her claim with the submission of new and material evidence. The evidence of record was listed and the appellant was told how VA would assist her in obtaining additional evidence. The parties to the June 2009 Joint Motion found that VA had not properly notified the appellant of the information and evidence necessary to substantiate her claim. The parties found that the appellant had not been sufficiently advised of the evidence necessary to reopen her claim for service connection for the cause of the Veteran's death. The Joint Motion found that the appellant had not been notified of what critical element was missing from her previously denied claim. In its February 2010 remand, the Board instructed the RO to afford the appellant appropriate VCAA notice pursuant to the instructions in the Joint Motion. The RO sent the appellant March and June 2010 VCAA letters, seeking to comply with the Board's February 2010 remand instructions. However, in April 2011 the Board was compelled to find that the RO did not substantially comply with the Board's February 2010 remand instructions and that such non-compliance prejudiced the appellant and required another remand. As noted by the parties to the Joint Motion, Kent v. Nicholson, 20 Vet. App. 1 (2006) requires that VA notify a claimant seeking to reopen a previously denied claim including advising the claimant of the evidence and information needed to reopen the claim as well as the evidence and information needed to establish entitlement to the underlying claim for the benefit being sought. Also, VA must look at the basis for the denial in the prior decision and provide the claimant with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. In addition, the claim underlying the appellant's application to reopen is one for entitlement to service connection for the cause of the Veteran's death, a type of claim which its own unique VCAA notice requirements. See generally Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds sub nom., Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). The RO's March and June 2010 letters substantially complied with Hupp but did not substantially comply with Kent. In compliance with Hupp, the appellant was advised as to what evidence was necessary to substantiate a claim for service for the cause of the Veteran's death. However, contrary to Kent, the RO erroneously identified the most recent final denial as being the RO's June 1987 denial of service connection for the cause of death. The appellant had appealed this decision and the Board denied the claim in January 1988. The Board's January 1988 "subsumed" the RO's June 1987 denial. See 38 C.F.R. § 20.1104 (Board affirmation of RO decision subsumes RO decision). The RO's June 1987 denial should therefore not have been, and should not be, referred to as a prior final denial of the claim. Moreover, there were multiple subsequent RO denials, including a decision in April 2001 in which the RO reopened the claim and denied it on the merits. The RO's error in misidentifying the RO's June 1987 decision as the most recent prior denial could not have been said to be harmless, because it did not accurately inform the appellant of the information necessary to reopen the claim for service connection for the cause of death. In April 2011, the Board remanded this matter for VCAA notice that would cure the Kent defects found in the March 2010 and June 2010 VCAA notice letters. In May 2011, the RO issued a VCAA letter to the appellant that sought to comply with the Board's April 2011 remand instructions and fully comply with the VCAA notice requirements in this case. The Board finds that the issuance of the May 2011 VCAA notice, when viewed in conjunction with other VCAA notices and other adjudications and correspondence issued in this matter, serves to substantially comply with the Court's and the Board's remand instructions pertaining to VCAA notice in this matter. The May 2011 VCAA notice letter did not inform the appellant that the most recent final denial of her claim had been in April 2001, as was requested in the Board's April 2011 remand of this matter, but this was no more than harmless, nonprejudicial error, as the appellant was represented by Counsel who demonstrated actual knowledge of this fact in a June 2009 Joint Motion before the Court, and the fact was reiterated in an April 2011 Board remand of this matter. Further, the previous denial of the claim identified in the May 2011 VCAA letter, from August 2005, though not final, post-dates both the January 1988 Board denial and the April 2001 reopening and denial by the RO of the appellant's claim, thereby avoiding the critical error identified by the Board in its April 2011 remand in this matter, when the RO had in a prior VCAA letter identified a June 1987 RO denial of the claim as having been the most recent final denial of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (entitlement to substantial compliance with Court and Board remand instructions). In particular, between the May 2011 VCAA notice, and VCAA notice letters issued to her in March 2010 and June 2010, and as supplemented by information contained in a Board remands dated in February 2010 and April 2011, in the context of the fact that the appellant was represented by a private attorney during this time frame, she had adequate notice as to what would be required to reopen her claim for service connection for the cause of the Veteran's death, and what was required to substantiate the underlying claim for service connection for the cause of the Veteran's death. Importantly, during this time frame, the appellant was represented by an experienced attorney-representative charged with professional knowledge of VA's obligations to notify and assist her and with knowledge of the law and regulations pertaining in this matter. See generally Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Further, as will be discussed below, the appellant is now pro se not by reason of inadequate representation, but by reason of her not maintaining adequate communications with her attorney-representative. The errors identified in the June 2009 Joint Motion for Remand of this matter have been corrected-the appellant has been provided notice as to how to submit new and material evidence with respect to her claim and has been provided notice of the elements of her claim, to include information her that a service-connected disease or injury contributed to the Veteran's death. The May 2011 VCAA notice letter informed the appellant that in order to support her claim, she needed to submit evidence that shows a disability was incurred or aggravated during service and was the primary or contributory cause of service. She was advised that her claim was previously denied because the evidence submitted by her showed that osteomyelitis (which is shown on the death certificate as a contributing cause of death) was not related to a gunshot wound incurred in active service, but rather was a non-healing wound on the left foot resulting from surgical removal of a gouty tophi in 1984, which developed into osteomyelitis. She was informed as to the requirements for submission of new and material evidence in the context of this fact. Further, the experienced office of the appellant's attorney-representative, which represented the appellant from June 2009 to October 2012, demonstrated actual knowledge of these matters by virtue of the June 2009 Joint Motion for Remand and their professional knowledge as to VA's duties to notify and assist with respect to matters of veterans law. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"); Stegall v. West, 11 Vet. App. 268, 271 (1998) (entitlement to compliance with Court and Board remand instructions, absent a showing of nonprejudicial error). Given the attorney's professional knowledge of the laws and regulations pertaining to VA benefits, the less serious remaining deficiencies in the VCAA notice issued in this matter constitute no more than harmless, non-prejudicial error. As to the duty to assist, in May 2012, the appellant submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, for records of treatment for pulmonary tuberculosis, severe malnutrition, and osteomyelitis, with Dr. F.B.C. at F.C. Medical Clinic. However, as she was notified in a February 2013 supplemental statement of the case, the RO was unable to seek to obtain the records from F.C. Medical Clinic because she provided incomplete information on the form, to include no dates of treatment, although this information is clearly requested at section 7B of the form. It is further noted that the appellant did not check the box authorizing the VA to obtain the identified records, so that VA had no legal authorization to attempt to obtain them, and did not complete those sections of the form indicating her relationship to the Veteran, the date she signed the form, her mailing address, or her telephone number. The form is not completed so as to sufficiently identify the records of treatment sought or to provide VA any legal authorization to seek the records identified by the appellant in May 2012. Further, the appellant had been advised in a May 2011 VCAA notice letter that if she completed the form she would need to indicate the specific dates the Veteran was treated, which she did not do. The appellant was represented by a private attorney both at the time of the May 2011 VCAA notice and her submission of the May 2012 VA Form 21-4142, but, consistent with the assertions of her private attorney, apparently did not fully avail herself of the benefits of such representation. As noted, the appellant was represented in this matter by a private attorney, for the period from June 2009 to September 2012. In August 2012, while adjudication of the claim was pending at the RO, the appellant's representative informed the RO that his office was preparing to withdraw from representation of the appellant, and would inform the appellant of this fact within 30 days. The attorney-representative informed the appellant in August 2012 that because she had stopped communicating with his office, they intended to formally withdraw from his case in 30 days. In September 2012, after informing VA that it had followed all necessary procedures while the case was pending adjudication at the RO, the office of the appellant's attorney-representative withdrew from representation of the appellant. See generally 38 C.F.R. § 14.631. As noted, in May 2012, when the appellant provided the VA Form 21-4142, she was represented by her private attorney-representative, and correspondence from the RO to the appellant was properly copied to her representative during this time frame. The attorney-representative is charged with professional competence and knowledge of the VCAA. The appellant was unsuccessful in maintaining adequate communications with her attorney-representative, as she acknowledged in a letter to VA dated in October 2012. She indicated full understanding that her representative had ceased representation of her. Over the course of this appeal the appellant has been advised by several letters as to her rights of representation before VA, and has demonstrated actual knowledge of this right in obtaining representation before VA. The most recent VCAA letter issued in this matter, dated in May 2011, informed her of her option of representation by a Veterans Service Organization. Over the course of this appeal, the appellant has not provided any additional substantive evidence or argument in support of her claim, as compared to evidence and argument received with respect to previous finally denied claims for service connection for the cause of the Veteran's death. She did not provide any additional evidence or argument while representing herself or during the period during which she was represented by an attorney-representative. She did not maintain adequate communications with her attorney-representative, and, during a period for which she was represented, did not sufficiently complete a VA Form 21-4142 to provide VA legal authorization to seek to assist her by obtaining additional private records of treatment. She could have sought additional assistance from either VA or her well-known and experienced then-attorney-representative but did not provide adequate communications with either to facilitate any additional substantive argument or assistance with respect to her application to reopen her claim for service connection for the cause of the Veteran's death. She was advised of the option of seeking representation by a Veterans Service Organization but did not apprise herself of this opportunity either. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The appellant's failure to provide any additional substantive evidence or argument or maintain adequate communications to avail herself of the assistance available either through her attorney-representative or VA constituted a failure to cooperate in the development and adjudication of her claim, and is a factor in the Board's denial of her application to reopen her claim rather than the seeking of additional development with respect to the claim. Given the course of the appealed denial of the application to reopen, which, though pending over the course of several years, has resulted in no additional substantive evidence or argument, notwithstanding representation by a private attorney for a substantial period of time, the Board foresees no reasonable possibility that further notice development would result in substantiation her claim. Based on the foregoing, the Board finds that, in the circumstances of the appellant's application to reopen, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The Board finds substantial compliance with the duty to assist and duty to notify provisions of the VCAA. Another remand for the purpose of achieving further refinement and accuracy of VCAA notice would only serve to further strain scarce VA resources, with no indication of any reasonable possibility of a benefit flowing to the appellant. Thus, no additional assistance or notification to the appellant is required based on the facts of the instant case. There is no remaining potential prejudice to the appellant that would warrant a remand, and her procedural rights have not been abridged. Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with 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 submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. In January 1988, the Board denied the appellant's claim. It noted that the Veteran's service-connected gunshot wounds were considered well-healed. It concluded that the Veteran's service-connected disorders did not play an important and contributory role in the medical problems that led to his death in March 1987. At the time of the Board's decision, the record included the Veteran's service treatment records. The evidence showed that the Veteran sustained grenade wounds to his back, left leg, left upper eyelid, and right arm and leg and abdomen. The Veteran had been awarded service-connection for residuals of the grenade wounds and had a combined 40 percent evaluation. Reports of VA examinations conducted in May 1950 and February 1966 discussed the service-connected disabilities. The Veteran's March 1987 death certificate and terminal records of treatment at the Veterans Memorial Medical Center (VMMC) were also associated with the claims file. The terminal records from the VMMC indicate that the Veteran had developed a nonhealing wound on the dorsum of his left foot three years prior to admission, and that he had been treated at that facility for chronic osteomyelitis. The hospital records also show that the Veteran had a diagnosed case of pulmonary tuberculosis. The records indicate that the Veteran had been anorexic for one month prior to admission. On the 24th day, he aspirated his "osterized" feeding. He subsequently developed dyspnea and pneumonia, and his condition deteriorated until he expired. The death certificate shows that the Veteran died in March 1987 as the result of cardiopulmonary arrest. The antecedent cause was listed as aspiration pneumonia, with an underlying cause of chronic osteomyelitis. Other significant conditions were noted to be pulmonary tuberculosis and severe malnutrition. Also of record were various certificates from the Philippine Army regarding the Veteran's service. Since the Board's January 1988 decision, the appellant has made numerous attempts to reopen her claim. The RO issued its most recent final denial in April 2001. She was advised of this decision and her appellate rights by letter that same month. Received shortly after the one-year period after notice of the April 2001 decision was a medical certificate, received on May 7, 2002, and dated July 31, 2000, which was purely duplicative of a medical certificate received into the claims file in August 2000. Because she did not submit a notice of disagreement or new and material evidence within one year of April 2001 notice of the decision, the decision became final. See 38 C.F.R. § 3.156(b) (new and material evidence received within appeal period requires readjudication of pending claim); 38 U.S.C.A. § 7105 (filing of notice of disagreement and appeal). In the April 2001 denial, the RO reopened the claim based on receipt of March 1987 reports of X-rays of the Veteran's left foot, pelvis and chest. The March 1987 chest X-ray findings were found to be new and material based on its impressions of pulmonary tuberculosis, pneumonitis, and pleura-diaphragmetic reaction of the left base. However, the claim was denied on the merits in part based on a June 1950 VA examination that indicated the Veteran to be well-nourished and reported a chest X-ray as being within normal limits, and another chest X-ray taken in February 1966 which was also within normal limits. Additionally, the RO noted that although the Veteran was service-connected for a shrapnel wound to the left leg, this was not the site of the chronic osteomyelitis, which was diagnosed and indicated to be an underlying cause of death. Based on these facts, the RO denied the reopened claim for service connection for the cause of the Veteran's death. The Board notes that the March 1987 X-ray report of the Veteran's foot showed osteomyelitis of the left foot, with a pertinent history of the Veteran having been operated on in 1984 for a gouty tophi, and the operative wound having taken on a greenish discharge. The appellant submitted her most recent request to reopen in January 2003. Since April 2001, in support of her requests to reopen, the appellant has submitted various materials, to include her birth certificate, a marriage certificate, an April 1987 joint affidavit regarding her marriage to the Veteran, X-ray reports from March 1987, March 1987 terminal treatment records, and a duplicate of a July 2000 statement from J.M., M.D. regarding treatment of the Veteran's pulmonary tuberculosis. She also submitted duplicate death certificates, and materials pertaining to the Veteran's service. All of these materials have been purely duplicative or purely cumulative of evidence of record at the time of the April 2001 final RO denial. In support of her claim, she has submitted duplicates of the Veteran's death certificate, service records, the April 1987 affidavit, Dr. M.'s statement, the March 1987 X-ray reports, and the March 1987 terminal hospital report. Upon careful review of the evidence pertaining to this claim, the Board concludes that new and material evidence sufficient to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death has not been received. The evidence added to the record since the RO's April 2001 rating decision is all duplicative or cumulative of evidence that was of record at the time of the previous rating decision. As such, none of the evidence added to the record since the April 2001 decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the Veteran's death. The appellant's assertions that her husband's death was related to his service-connected disability had previously been voiced and were considered by the RO and Board. Similarly, the duplicative medical evidence disclosing treatment of the Veteran prior to his death cannot serve to reopen the claim. In this regard the Board notes that evidence tending to confirm a previously established fact is cumulative. At the time of the last final decision, there was evidence of service, service-connected disability, remote post-service aspiration and evidence attributing the cause of death to aspiration. There was also evidence of osteomyelitis of the left foot at the time of death and a finding that the osteomyelitis was an underlying cause of death, and evidence of a service-connected shell fragment wound of the left lower extremity, but no evidence attributing the post-service osteomyelitis to the service-connected disability. In sum, at the time of the last final decision, there was evidence of death, but no evidence attributing a principal or contributory cause of death to a service-connected disability or service. Since the April 2001 determination, no facts have changed; the evidence received has been purely duplicative or cumulative. Thus, none of the evidence added to the file since the April 2001 decision is new and material for the purpose of reopening the claim of entitlement to service connection for the cause of the Veteran's death. Accordingly, the claim is not reopened. 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