Citation Nr: 1324356 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-20 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Nancy L. Foti, Attorney ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran had recognized guerrilla service from February 1945 to January 1946. He also had recognized service with the Philippine Scouts from January 1946 to January 1949. He died in November 1981. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2009 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 service connection for the cause of the Veteran's death. In June 2011, the Board adjudicated the appellant's claim on appeal denying her application to reopen her claim. The appellant appealed the issue to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In a November 2012 decision, the Court set aside the June 2011 Board decision and remanded the matter to the Board for readjudication consistent November 2012 decision. The reopened claim of service connection for the cause of the Veteran's death is REMANDED to the RO. FINDINGS OF FACT 1. In a rating decision in September 2003, the RO denied the claim of service connection for the cause of the Veteran's death; after the Appellant was notified of the adverse determination and of her procedural and appellate rights, she perfected an appeal to the Board, but withdrew her appeal before the Board promulgated a decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Appellant. 2. The additional evidence since the rating decision in September 2003 relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria to reopen the claim of service connection for the cause of death have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In light of the grant to reopen the previously denied claim, further discussion here of VCAA compliance is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural History and Evidence Previously Considered In a rating decision in September 2003, the RO denied the claim of service connection for cause of the Veteran's death, because the fatal diseases were unrelated to service. After the Appellant was notified of the adverse determination and of her appellate rights, she appealed the rating decision, but withdrew her appeal in July 2004 before a decision was promulgated by the Board. And no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Appellant. The rating decision became final on the basis of the evidence of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence showed that the Veteran died November 1981. The death certificate listed the causes of death as cardiac arrest, myocardial infarction, and advanced pulmonary tuberculosis. The Veteran was not service connected for any disability during his life time. The only available service treatment record was the report of separation examination in January 1946 that showed the Veteran was in good health and a chest X-ray was negative. Letters dated August 1955 from F.R. and F.L., the Veteran's fellow servicemen who served with the Veteran, stated that they observed the Veteran having chest pain and declining health during their service together. In a statement submitted by the Veteran's treating physician, F.B.A., indicated that he had treated the Veteran between 1963 and 1980 for complaints of afternoon fever, productive cough, chest and back pain, and emaciation. The physician noted that the Veteran had been experiencing the symptoms of moderately advanced pulmonary tuberculosis and that the symptoms began when the Veteran was serving as a guerilla in late 1945. The physician attached medical treatment records dated July 1964, May 1967, April 1970, and March 1977, showing that the Veteran was treated for pulmonary tuberculosis. In a statement in May 2003, the Appellant stated after service from 1950 to 1980 the Veteran was treated for pulmonary tuberculosis by private physicians, but the records were no longer available. In July 2003, a son of one of the physicians recalled that his father treated the Veteran after the war, but the records of the treatment were no longer available. In April 2004, the Appellant asserted that at the time of the Veteran's discharge from the Philippine Scouts in 1949, the Veteran was already suffering from pulmonary tuberculosis. Current Claim to Reopen The current claim was received by VA in June 2005. As the Appellant's claim was received after the regulatory definition of new and material was amended in August 2001, the current regulatory definition of new and material evidence applies. New evidence means existing evidence not previously submitted to agency decision makers. 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). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Also, the law is to be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). Additional Evidence and Analysis In a rating decision in August 2009, the RO denied the application to reopen the claim for cause of the Veteran's death as the additional evidence was not new and material, because medical evidence demonstrating that the Veteran's cause of death was related to service was not received. The Appellant asserts that the Veteran's pulmonary tuberculosis, which was one of the fatal diseases, was incurred during service. The additional evidence not previously considered by VA consists in part of a letter from the Appellant, dated in December 2009. In her letter the Appellant stated that in 1949, she observed that the Veteran was pale and weak with afternoon fevers, productive cough, chest pain, and back pain. Analysis As the Appellant is competent to describe what she had observed, as the lay evidence is presumed credible for the limited purpose of reopening the claim, and as the additional evidence relates to an unestablished fact necessary to substantiate the claim, namely, that the Veteran suffered from symptoms of tuberculosis within the three year presumptive period following separation, the lack of such evidence was in part the basis for the previous denial of the claim, the additional evidence is new and material under 38 C.F.R. § 3.156. For these reasons, the claim of service connection for the cause of the Veteran's death is reopened. ORDER The claim of service connection for the cause of the Veteran's death is reopened and to this extent only the appeal is granted. REMAND As the RO has not adjudicated the reopened claim of service connection on the merits, due process requires that the claim be remanded for initial consideration of all the evidence by RO. Accordingly, the case is REMANDED for the following action: If necessary to decide the claim, obtain a VA medical opinion, then adjudicate on the merits the reopened claim of service connection for the cause of the Veteran's death. If the benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs