Citation Nr: 1317461 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 12-13 122 ) 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. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from April 30, 1945 to August 27, 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which declined to reopen a previously denied claim of entitlement to service connection for the cause of the Veteran's death. 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 March 2004 rating decision, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death; and the appellant did not file an appeal. 2. None of the additional evidence received since the March 2004 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the Veteran's death, or raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2004 rating 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. §§ 20.302, 20.1103 (2003). 2. The evidence received since the March 2004 rating decision is not new and material; and the requirements to reopen the appellant's claim for service connection for the cause of the Veteran's death, have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). For claims such as this one pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). In an application 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, prior to the initial adjudication the RO sent the appellant a letter with enclosures dated in March 2011 that complied with statutory notice requirements. Therein, the RO notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. In compliance with Kent, the RO notified the appellant of the criteria for reopening a previously denied claim, the criteria for establishing service connection for the cause of the Veteran's death, and information concerning why the claim was previously denied. In compliance with Hupp, the RO explained how to establish entitlement to DIC benefits based on a service-connected disability established during the Veteran's lifetime and how to establish entitlement to DIC benefits based on a disability that was not service-connected during a Veteran's lifetime. The letter did not notify the appellant that the Veteran had not been granted service connection for any disability during his lifetime. However, the appellant was previously apprised of that information in the prior final rating decision in March 2004. Following the March 2011 notice letter, the RO adjudicated the claim in an April 2011 rating decision. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Here, the RO has obtained service records and private treatment records. The appellant was given an opportunity to submit or identify any pertinent evidence. In a March 2011 statement she notified the RO that she would submit additional evidence. She subsequently submitted additional documents, and in her May 2012 substantive appeal, VA Form 9, she notified the RO that she had no additional documents to submit. All records identified by the appellant have been obtained. The RO did not obtain a VA opinion regarding the etiology of the Veteran's death. The Board finds that the RO was not required to do so pursuant to its duty to assist in this case. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. In this case, the Veteran's death certificate reflects that he died of internal hemorrhage due to peptic ulcer disease. The claim was previously denied on the basis that there was no competent evidence that the Veteran's peptic ulcer disease manifested itself within one year of termination of service, and not until shortly before his death in 1981. In other words, the claim was denied because there was no competent evidence indicating a relationship between the conditions that led to the Veteran's death and his military service. Since the Board finds that no new and material evidence has been received to reopen the claim, a VA medical opinion is not required as there is no reasonable possibility that such assistance would aid in substantiating the claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The application to reopen the claim for the cause of the Veteran's death is thus ready to be considered on the merits. II. Petition to Reopen Claim In a March 2004 rating decision, the RO denied a claim for service connection for the cause of the Veteran's death, on the basis that there was no competent evidence that the cause of the Veteran's death was related to service. Based on the medical evidence at that time the RO determined that the cause of the Veteran's death was internal hemorrhaging due to peptic ulcer disease. The RO determined that the peptic ulcer disease was not related to service because evidence did not show that it manifested itself within one year of termination of service, and not until shortly before his death in 1981. The evidence of record at the time of the March 2004 rating decision consisted of private treatment records prior to his period of active service from April 30, 1945 to August 27, 1945; service records and other records reflecting his service; post-service private treatment records including medical records showing treatment for epigastric pain, nausea, and vomiting in October and November 1981; the certificate of death showing the Veteran died in December 1981 and that the cause was internal hemorrhage, due to peptic ulcer disease; and a statement from the appellant's daughter. None of these records showed the presence of any gastrointestinal condition or associated internal hemorrhage prior to 1981, and nothing suggested any current gastrointestinal problems at the time of the Veteran's death were related to service. Although the appellant submitted a letter in November 2005 addressing her claim and requesting a statement of the case, she did not file a Notice of Disagreement within one year of the mailing of the March 2004 rating decision so as to timely appeal from the March 2004 rating decision. 38 C.F.R. § 20.302. Because the appellant did not submit a timely Notice of Disagreement to the March 2004 rating decision denying service connection for the cause of the Veteran's death, that determination became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed, unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has determined the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). In March 2011 the appellant filed an application requesting the RO to reopen her claim of entitlement to service connection for the cause of the Veteran's death. In a January 2011 rating decision the RO denied the claim. The evidence added to the claims files since the March 2004 rating decision consists of statements of the appellant, a copy of the Veteran's death certificate, records documenting the Veteran's service, certifications noting that the appellant has financial difficulties, and the transcript of a February 2013 Travel Board hearing before the undersigned Veterans Law Judge. None of these additional items of evidence relates to an unestablished fact necessary to substantiate the claim, which in this case would be competent evidence of an etiological nexus between service and the cause of the Veteran's death. See 38 C.F.R. § 3.156. Additional statements and hearing testimony of the appellant are cumulative of her claim of a service connection for the cause of the Veteran's death at the time of the March 2004 rating decision. As noted earlier, the appellant is not shown to possess the medical competence to consider any etiology opinion to be material. The death certificate submitted is not new as it is merely a copy and duplicative of one on file before. Additional post service documentary evidence of the Veteran's service are cumulative or duplicative of prior evidence showing his service, which does not relate to an unestablished fact necessary to substantiate the claim. The February 2013 Board hearing testimony transcript shows that the appellant and her daughter testified essentially that the Veteran was imprisoned by the Japanese during World War II, and that the Veteran's war-time service experience, including that imprisonment, ultimately resulted in the post-service peptic ulcer condition and internal hemorrhage that was the cause of the Veteran's death. The February 2013 Board hearing testimony transcript is new evidence in that this document containing testimony as to her claim was not previously of record. However, the assertion of an etiological relationship articulated in that testimony is cumulative of the asserted claim by the appellant adjudicated in March 2004. Moreover, given the medical complexity of the matter at hand, neither the appellant nor her daughter is shown to possess the medical competence necessary to be able to consider an etiology opinion they may provide to be material. In sum, the evidence received since the last final decision on the matter does not raise a reasonable possibility of substantiating the claim, and therefore would not warrant reopening of the claim. None of the additional records received contains evidence relating to an unestablished fact necessary to substantiate the claim, specifically, competent evidence of an etiological relationship between service and the cause of the Veteran's death. Accordingly, the Board finds that the evidence received after the March 2004 rating decision is not new and material and does not serve to reopen the claim for service connection for the cause of the Veteran's death. Therefore, the appellant's previously denied claim for service connection for the cause of the Veteran's death is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received to reopen the previously denied claim for service connection for the cause of the Veteran's death, the appeal is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs