Citation Nr: 1320418 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 11-07 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a March 2002 rating decision that denied reopening a claim of entitlement to service connection for the cause of the Veteran's death. 2. 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. 3. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran had pre-war service from November to December 1941. He was beleaguered from December 1941 to January 1942 and in non-casualty status from January to March 1942. He was in missing status from March 1942 to April 1943. The Veteran was a prisoner of war from April to May 1943. He was in non-casualty status from May 1943 to March 1945. The Veteran was in the Recognized Guerrilla Service from March to November 1945. He served in the Regular Philippine Army from November 1945 to April 1946. The Veteran died in October 1973; the appellant is his surviving spouse. 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). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In characterizing the issues on appeal, the Board notes that the RO, in a June 2010 rating decision, initially denied appellant's request to reopen a claim of entitlement to service connection for the cause of the Veteran's death. She appealed this decision in August 2010 and also asserted a claim for revision of a March 2002 rating decision on the basis of CUE. The December 2010 statement of the case reflects a denial of her appeal under a theory of whether the claim may be reopened and readjudicated as well as whether revision of the March 2002 is appropriate. The appellant perfected an appeal as to this statement of the case; thus, the Board has characterized the issues to reflect both theories of entitlement. See Percy v. Shinseki, 23 Vet. App. 37 (2010). With regard to the appellant's claim of entitlement to service connection for the cause of the Veteran's death, a review of the record reveals that this issue was previously denied by the Board in January 2004. As there is no indication that she appealed this decision, new and material evidence is necessary to reopen this claim and consider it on the merits. See 38 C.F.R. § 3.156 (2012). Further, regardless of the RO's actions (i.e., whether it reopened the Veteran's claim), it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). The Board has therefore characterized the issues regarding this claim as set forth on the cover page. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The Board's disposition of the matters of whether there was CUE in a March 2002 rating decision and whether to reopen a claim of entitlement to service connection for the cause of the Veteran's death is set forth below. The issue of entitlement to service connection for the cause of the Veteran's death, on its merits, 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. (A decision on appellant's motion for revision of a January 2004 Board decision denying a request to reopen a claim of entitlement to service connection for the cause of the Veteran's death is the subject of a separate Board decision.) FINDINGS OF FACT 1. A March 2002 RO rating decision denied appellant's request to reopen a previously denied claim of entitlement to service connection for the cause of the Veteran's death. 2. A January 2004 Board decision directly affirmed the RO's March 2002 rating decision. 3. A January 2004 Board decision that denied the Veteran's request to reopen a claim of entitlement to service connection was not appealed and is final. It was held that the appellant had failed to submit new and material evidence showing that the Veteran's cause of death had some relationship to service. Appellant was notified of the decision and did not appeal. 4. Some of the evidence received since the January 2004 Board decision bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The January 2004 Board decision subsumed the RO's March 2002 rating decision; thus, the RO's March 2002 rating decision is not subject to challenge on the basis of CUE, and the claim is dismissed. Duran v. Brown, 7 Vet. App. 216, 224 (1994); see also 38 C.F.R. § 20.1104 (2012). 2. New and material evidence has been received to reopen the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. §§ 5108, 7103, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). With regard to the appellant's CUE claim, the Court has specifically held that the duties to notify and assist have no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002). See also 38 U.S.C.A. §§ 5109A(a), 7111(a) (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2012). Therefore, the Board finds that no further action is necessary on the CUE issue. As for the other issue decided herein - 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 - the Board observes that it is granting the full benefit sought as to the issue of whether to reopen this claim. Thus, all notification and development action needed to fairly adjudicate this issue has been accomplished. Clear and Unmistakable Error Rating decisions that are final and binding are accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a) (2012). Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). When an RO decision is appealed to and affirmed by the Board, a claimant may not collaterally attack the RO decision because it has been 'subsumed' by the Board's decision. See 38 C.F.R. § 20.1104. See also Duran v. Brown, 7 Vet. App. 216, 224 (1994); accord, Johnston v. West, 11 Vet. App. 240, 241 (1998). In order to reverse such decision, the claimant must collaterally attack the Board decision. Here, the appellant contends that there was CUE in the March 2002 rating decision that denied a request to reopen a previously disallowed claim of entitlement to service connection for the cause of the Veteran's death. Review of the record demonstrates, however, that this rating decision was appealed to the Board and that a January 2004 Board decision directly affirmed the RO's March 2002 rating decision. Hence, the March 2002 rating decision is no longer subject to collateral attack on the basis of CUE. Under such circumstances, the appellant's claim of CUE must be dismissed without prejudice. See Simmons v. Principi, 17 Vet. App. 104 (2003) (CUE claims which are denied based on the absence of legal merit or lack of entitlement under the law should be dismissed without prejudice). As a final note, the Board observes that some of appellant's statements regarding CUE were construed as a motion for revision of the January 2004 Board decision. See 38 C.F.R. § 20.1404(c), (d) (2012). Therefore, as noted in the Introduction, and pursuant to the Board's own procedures and practices, the issue of whether there was CUE in a January 2004 Board decision will be the subject of a separate decision. Claim to Reopen Historically, the appellant filed a claim for Dependency and Indemnity Compensation (DIC) benefits in August 1978. Although she did not assert at such time that the Veteran's death was related to service, the RO adjudicated the issue of service connection for the cause of the Veteran's death. It was denied by the RO in a letter dated later that same month. In that letter, the RO noted that the evidence of record did not show that the Veteran's death was due to service-connected disease or injury. Thereafter, in May 2001, the appellant submitted a new claim for DIC benefits in which she indicated that she was claiming the cause of the Veteran's death was due to service. The RO interpreted the claim as a request to reopen the previously denied claim and, in a March 2002 rating decision, denied such request. The appellant perfected an appeal as to this rating decision and, in a January 2004 decision, the Board affirmed the RO's decision to not reopen the claim. The Board's January 2004 decision notes that evidence of record at the time of the August 1978 denial consisted of service and post-service treatment records showing a history of ankylosis partial, right shoulder joint secondary to gunshot wound to the right clavicular region right acromio in combat in April 1945. An October 1949 rating decision indicated that service connection was granted for an injury, severe, muscle groups I and II, right shoulder (major) with fractures of the clavicle and scapula and retained foreign bodies; clavicle, nonunion right (major) fractured, healed, with deformity, scapular, right; and healed fractures 2nd, 3rd, and 4th ribs. These disabilities were assigned a combined evaluation of 50 percent which continued to the time of the Veteran's death. The certificate of death on file revealed that the Veteran died in October 1973 and that the cause of death was septic shock, secondary to (or due to) pneumonia due to bronchia carcinoma with metastasis to the liver. Listed under other significant conditions was hepatoma with metastasis to the lungs with old anterior wall. In denying appellant's reopen request, the Board acknowledged that additional evidence had been received since the August 1978 denial, including lay statements from the appellant regarding the Veteran's symptoms prior to death and terminal treatment records from the Veterans Memorial Medical Center (VMMC), but found such evidence was essentially cumulative and redundant of information received prior to the August 1978 decision. In that regard, the Board indicated that such evidence failed to suggest any relationship between the Veteran's multiple causes of death and his military service. Although notified of the Board's decision in January 2004, the appellant did not initiate an appeal. The Board's denial of this claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. §§ 5108, 7103, 7104; 38 C.F.R. §§ 3.156, 20.1100. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In March 2010, the RO interpreted a statement submitted by the appellant as an attempt to reopen her previously denied claim. Thereafter, in a June 2010 rating decision, the RO denied her request to reopen the previously denied claim. The appellant appealed this decision and the issue of whether to reopen (and ultimately allow) the claim of service connection for the cause of the Veteran's death is now before the Board for appellate review. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). The provisions of 38 C.F.R. § 3.156(a) define 'new' evidence as evidence not previously submitted to agency decisionmakers and 'material' evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). In the instant appeal, the last final denial of the claim is the Board's January 2004 decision. Additionally, for purposes of the 'new and material' analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Here, additional evidence has been associated with the claims file since the April 2002 rating decision that pertains to the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Such evidence consists of multiple lay statements proffered by the appellant that the Veteran's death is secondarily related to service through tobacco use. Specifically, it is appellant's contention that the Veteran had a nicotine addiction that was caused by his service-connected gunshot wound residuals and that such addiction (manifested by cigarette smoking) led to the development of his immediate cause of death - lung (bronchia) cancer. In support of her assertions, she references "[s]ocio-cultural studies" which recognize smoking as a coping mechanism for overcoming "insecurities, traumatic experience, and such other physical and psychological discomforts [emphasis added]." The appellant also notes that there is widespread knowledge of medical studies linking cigarette smoking and lung cancer as evidence that her husband's death was tobacco-related. For claims filed after June 9, 1998, service connection may not be established for disability or death on the basis that such disability or death resulted from injury or disease attributable to the use of tobacco products during the veteran's service. 38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300 (2012). VA's General Counsel has held, however, that service connection may be established for a tobacco-related disability or death where that disability or death is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to a veteran's use of tobacco products during service. See VAOPGCPREC 6-2003. More specifically, a secondary disability may be service-connected if: (1) a service-connected disability caused the veteran to use tobacco products after service; (2) the use of tobacco products was a substantial factor in causing the secondary disability; and (3) the secondary disability would not have occurred but for the post-service use of tobacco products. Id. In this case, the appellant is not competent to provide her own opinion regarding the etiology of the Veteran's nicotine addiction and/or lung cancer as such questions involve complex medical issues not generally within the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). She is, however, competent as to her observance of the Veteran's increased smoking following in-service injury. Moreover, she is competent to report on information that she has read in medical and scientific articles, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), and in the case of whether to reopen this issue, such statements are presumed credible, see Justus, 3 Vet. App. at 512-13. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). The Board notes the appellant's lay statements are 'new' in that they present evidence that was not previously before agency decisionmakers. Such statements are further found to be 'material' because they raise the issue of whether competent medical evidence exists which suggests the Veteran's death may be related to nicotine addiction that was directly related to his (nontobacco-related) service-connected disabilities. When considered in conjunction with evidence previously on file, this new evidence raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. See also Shade v. Shinseki, 24 Vet. App. 110, 119-21 (2010) (holding that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim"). As such, the Board concludes that the criteria for reopening the claim for service connection for the cause of the Veteran's death are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER The claim for revision of the March 2002 rating decision on the basis of CUE is dismissed without prejudice. New and material evidence having been received, the claim of entitlement to service connection for the cause of the Veteran's death is reopened, and to this extent only, the appeal is granted. REMAND Turning to the merits of the appellant's claim of entitlement to service connection for the cause of the Veteran's death, the Board's review of the record reveals that further RO action is warranted. At the outset, the Board notes that a remand is necessary to allow the RO to adjudicate this claim on the merits as there is no indication that it has yet done so. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). A remand is also necessary to obtain a medical opinion regarding the questions posed in the VA General Counsel opinion (VAOPGCPREC 6-2003). As discussed above, the appellant has submitted competent evidence identifying medical treatise information linking nicotine addiction and lung cancer as well as noting nicotine addiction as a coping mechanism for dealing with physical disability. She has also proffered her own observations regarding the Veteran's tobacco use as a way to deal with his service-connected gunshot wound residuals. While such evidence may be sufficient to suggest that the Veteran's cause of death may be secondary to his service-connected disabilities, it is not sufficient to decide the claim. As such, remand for a medical opinion is warranted. See Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (holding that section 5103A(a), and not (d), applies to DIC claims, and requires that VA must obtain a medical opinion when such opinion is 'necessary to substantiate the claimant's claim for a benefit'). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran's claims file to an appropriate physician(s) for an opinion regarding the etiology of the Veteran's death. Access to Virtual VA must be made available to the physician for review, if needed. Following a review of the claims file, to include the various lay statements proffered by the appellant, the physician should respond to the following questions, as appropriate. (a) Is it as least as likely as not that the Veteran's service-connected gunshot wound residuals caused him to use tobacco products after service? In rendering this opinion, the physician should discuss the relevance of any pre-service tobacco use shown by the record and whether it is clear that any nicotine addiction pre-dated service. The physician should also discuss whether the Veteran's gunshot wound residuals would have impacted any attempts at smoking cessation (i.e., cessation would have been successful but for his service-connected disabilities). (b) If yes to (a), then is it as least as likely as not that the Veteran's post-service use of tobacco products was a substantial factor in causing any disability identified as an immediate or contributory cause of death (i.e., pneumonia due to bronchia carcinoma with metastasis to the liver; pulmonary tuberculosis; hepatoma with metastasis to the lungs with old anterior wall)? (c) If yes to (b), then is it as least as likely as not that such disability would not have occurred but for the Veteran's post-service use of tobacco products? A complete rationale should be provided for any opinions. 2. Thereafter, the RO/AMC should review any examination and/or medical opinion report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that each physician documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 3. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC should adjudicate the issue of entitlement to service connection for the cause of the Veteran's death. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the November 2012 supplemental statement of the case. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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 D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs