Citation Nr: 1320079 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-47 260 ) 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 John Kitlas, Counsel INTRODUCTION The Veteran had recognized military service from October 1943 to June 1946. He died in September 2002, and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which found that new and material evidence had not been received to reopen the cause of death claim. 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). The record reflects the Appellant requested a hearing before a Veterans Law Judge (VLJ) of the Board in conjunction with this appeal, and such a hearing was scheduled for February 2013. However, the Appellant failed to report for this hearing, and no good cause has been shown for this failure. Consequently, her hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.704(d) (2012). FINDINGS OF FACT 1. Service connection was originally denied for the cause of the Veteran's death by a February 2003 rating decision; the Appellant did not appeal that decision and the decision is final. 2. Rating decisions promulgated in January and February 2008 found that new and material evidence had not been received to reopen the cause of death claim. Although the Appellant submitted a timely Notice of Disagreement to these decisions, she did not file a timely Substantive Appeal and the decisions are final. 3. Although some evidence received since the last prior final denial of service connection for the cause of the Veteran's death was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of entitlement to service connection for the cause of the Veteran's death is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the notice provided to a claimant seeking dependency and indemnity compensation (DIC) benefits 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, 21 Vet. App. at 352-53. Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established significant requirements with respect to the content of the notice necessary for those cases involving the reopening of previously denied claims. Specifically, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought by the claimant. VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Appellant was sent VCAA-compliant notification regarding the current appellate claim via letters dated in August 2009 and February 2010, prior to the decision on appeal. In pertinent part, these letters informed the Appellant of what was necessary to substantiate a DIC claim to include based upon the cause of death of the Veteran, what information and evidence she must submit, and what information and evidence will be obtained by VA. As the Veteran had no service-connected disabilities at the time of his death, no statement of such conditions was necessary in this case. Consequently, this correspondence appears to be in compliance with the requirements of Hupp, supra. The Board further notes that the Appellant was informed that the cause of death claim was previously denied, that the denial was due to the fact that the evidence did not relate the cause of death to service, that new and material evidence was necessary to reopen this claim, and explained the standard for new and material evidence by language consistent with the relevant regulatory provisions. As such, this correspondence appears to be in compliance with the requirements of Kent, supra. In addition, the Appellant was provided notice concerning the information and evidence necessary to establish an effective date. In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate her appellate claim and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Appellant has had the opportunity to present evidence and argument in support of this claim, and nothing indicates she has identified the existence of any relevant evidence that has not been obtained or requested. For example, she has not identified outstanding evidence relating the cause of the Veteran's death to his recognized military service. As noted in the Introduction, the Appellant's hearing request is deemed withdrawn. Moreover, under the law, an examination is not required in the context of new and material evidence claims. 38 C.F.R. § 3.159(c)(4)(iii); see also 66 Fed. Reg. 45,620, 45,628 (August 29, 2001). Consequently, the Board finds that the duty to assist the Appellant has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Legal Criteria and Analysis In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A service-connected disability will be considered as the contributory cause of death when that the disability contributed substantially or materially to death, combined to cause death, or aided assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, with debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Service connection was originally denied for the cause of the Veteran's death by a February 2003 rating decision. The Appellant was informed of that decision, including her right to appeal, and did not appeal. Additionally, no evidence was received within one year of the notification of the February 2003 decision. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Therefore, that decision is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. The Board also observes that rating decisions promulgated in January and February 2008 found that new and material evidence had not been received to reopen the cause of death claim. The Appellant submitted a timely Notice of Disagreement (NOD) to these decisions, and a Statement of the Case (SOC) was promulgated on this issue on December 11, 2008. However, the Appellant's Substantive Appeal was received in March 2009 after the expiration of the 60 day period following the promulgation of the SOC and more than 1 year after the date of notification of the February 2008 rating decision. The RO notified the Appellant that her substantive appeal was untimely. As such, these decisions are also final. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence of record at the time of the February 2008 rating decision includes statements from the Appellant, records pertaining to the Veteran's military service, service treatment records, post-service medical records, and the Veteran's September 2002 death certificate. In pertinent part, the Board notes that the Veteran's death certificate lists his immediate cause of death as cardiac arrest, with pneumonia listed as an antecedent cause. The records regarding the Veteran's military service includes a WD AGO Form 53-55 showing he had military service with the 14th Infantry from July 1942 to April 1947. However, subsequent documents, to include a November 1953 VA Form 3101 states that the Veteran's military status as a member of the Army of the United States, previously granted through alleged service with the 14th Infantry, has been revoked. Instead, the Veteran was found to have recognized military service from October 1943 to June 1946. The record also reflects that, during his lifetime, the Veteran submitted claims of service connection for pneumonia residuals which was denied by an unappealed June 1968 rating decision, and service connection for pulmonary tuberculosis with emphysema which was denied by an unappealed April 1991 rating decision. The evidence, including the service treatment records on file, reflect the Veteran was treated for pneumonia of the right upper lobe in July 1946. He also submitted medical records showing findings of pulmonary tuberculosis with emphysema in 1991. However, no records were on file showing treatment for pneumonia or any other respiratory condition, such as tuberculosis and/or emphysema, during the Veteran's October 1943 to June 1946 period of recognized military service. Service connection was denied for pneumonia in June 1968 on the basis that the July 1946 treatment for pneumonia was after service and was considered unrelated to service. Similar findings were made in the April 1991 denial of service connection for pulmonary tuberculosis with emphysema. In support of her initial cause of death claim which was denied by the February 2003 rating decision, the Appellant submitted the September 2002 death certificate of the Veteran. She also submitted medical records indicating that a January 1997 chest X-ray revealed chronic obstructive pulmonary disease; bronchietasis versus pneumonic process, both lung diseases. Further, records from the Veterans Memorial Medical Center (VMMC) indicate the Veteran was treated in October 1999 for small bowel obstruction. The Appellant also submitted records, to include a Certification of Military Service, stating the Veteran had military service from July 1942 to April 1947. The February 2003 rating decision denied service connection for the cause of the Veteran's death finding that the entire evidence of record failed to show that the death-causing pneumonia began in service or had a relationship to an illness, injury, or event of military service origin. Although the Veteran was treated for pneumonia in July 1946, this was after recognized service and was considered unrelated to service. It was also stated that the Appellant had not submitted any medical evidence of a relationship between the Veteran's death and military service. The evidence of record at the time of the February 2008 rating decision includes the above, as well as additional statements from the Appellant, and a radiographic request and report from VMMC dated July 5, 1997. The RO determined that new and material evidence had not been submitted. The evidence submitted since the time of the February 2008 rating decision includes statements from the Appellant, duplicate copies of the October 1999 VMMC records and the Certification of Military Service showing service from July 1942 to April 1947, and a February 2009 joint affidavit from H.B. and M.O.D. Inasmuch as the October 1999 VMMC records and Certification of Military Service showing service from July 1942 to April 1947 were previously of record at the time of the February 2008 denial, they are clearly not new. Granted, the additional statements from the Appellant are "new" to the extent they were not previously of record. However, these statements are cumulative and redundant of the evidence previously of record in that she contends the Veteran's death was due to pneumonia, and that he had military service to April 1947. Such contentions were advanced and/or considered at the time of the prior denials. The Appellant has not advanced any additional details which were not known or considered at the time of the prior denials. Consequently, this evidence is cumulative and redundant of the evidence of record at the time of the prior denial in February 2003, and does not raise a reasonable possibility of substantiating the claim. With respect to the February 2009 joint affidavit from H.B. and M.O.D., the Board acknowledges that this was not of record at the time of the February 2008 rating decision. In this affidavit, H.B. and M.O.D. attested that they witnessed the Veteran suffering pneumonia at a Regional Conference of veterans held on or about August 28, 1947, and that the Veteran was treated at that time. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, there is a difference between credibility and competency. Specifically, the matter of whether the symptoms exhibited by the Veteran were pneumonia is the type of determination that requires competent medical evidence. Here, nothing on file shows that H.B. or M.O.D. has the requisite knowledge, skill, experience, training, or education to render a medical opinion. The Board is not required to presume a statement's credibility when an assertion is beyond the competence of the person who made it. See King v. Brown, 5 Vet. App. 19, 21 (1993); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (noting that new and material evidence requirement is not satisfied by the veteran's own unsubstantiated opinion as to medical matters). In any event, even if the Board were to find that H.B. and M.O.D.'s joint affidavit was sufficient to show the Veteran had pneumonia in August 1947, this is still a period after his October 1943 to June 1946 recognized service. As noted above, the record already included evidence of post-service treatment for pneumonia in July 1946. Nothing in the joint affidavit suggests that the Veteran had pneumonia during the October 1943 to June 1946 recognized service. Therefore, this evidence merely indicates additional post service treatment, and is cumulative and redundant of the evidence of record at the time of the prior denial in February 2008. Thus, such evidence is not new and material. The Board also wishes to address the fact that the Appellant submitted evidence showing the Veteran had military service from July 1942 to April 1947. Such evidence, however, is a duplicate of information of record at the time the Veteran filed his claim for service connection and at the time of the 2003 and 2008 prior denials. However, the service department subsequently revoked this period of recognized service, and certified that his recognized military service was from October 1943 to June 1946. As detailed in a December 1988 letter to the Veteran denying his claim for old age pension, an extensive study conducted by the U.S. Department of the Army of the history and organization of the 14th Infantry determined that many personnel who had been granted status in the Army of the United States (AUS) due to affiliation with the 14th Infantry, were granted that status erroneously. The letter stated that the Veteran was among those determined not eligible for status in the AUS due to the fact that he did not meet the basic requirements established for AUS status in the 14th Infantry. Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify a claimant's alleged service in the Philippine Army, VA cannot consider his or her claim for certain veteran's benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). The Board is bound by the United States service department's certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (If the service department does not verify the claimed service, the only recourse lies with the service department, not VA). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA. In view of the foregoing, VA is legally precluded from recognizing any military service of the Veteran for VA benefits purposes other than the October 1943 to June 1946 period. Nothing in the evidence of record documents he had pneumonia during this period of recognized service. Although he was treated for pneumonia in July 1946, approximately 1 month after this service, pneumonia is not recognized as a chronic disease subject to presumptive service connection when present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). In any event, such evidence was already considered in the prior denials. As the evidence received since the February 2008 denial only reinforces the fact the Veteran developed pneumonia subsequent to his recognized service, and there was evidence of such at the time of the last prior final denial, the Board finds that this evidence is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claim. In view of the foregoing, the Board finds that even though the evidence received since the last prior final denial of service connection for the cause of the Veteran's death was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. Thus, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a), and the claim is not reopened. ORDER New and material evidence not having been received, the claim of entitlement to service connection for the cause of the Veteran's death is not reopened and the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs