Citation Nr: 1327775 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-40 025 ) 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 previously denied claim of entitlement to service connection for prostate cancer for accrued benefits purposes. ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from February 1946 to November 1965. The Veteran died in March 2006. The appellant is the surviving spouse of the Veteran, and is seeking to reopen a claim of entitlement to service connection for prostate cancer for accrued benefits purposes. This matter comes to the Board of Veterans' Appeals (Board) from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. The Veteran died in March 2006, and in April 2006 the appellant filed a claim of death pension and dependency and indemnity compensation (DIC), to include a claim for accrued benefits. In a November 2006 rating decision, the RO found that the appellant had not submitted new and material evidence to reopen a claim of service connection for prostate carcinoma for accrued benefits purposes, and a March 2007 statement from the appellant is accepted as a notice of disagreement as to the accrued benefits issue. The appellant perfected an appeal of the accrued benefits claim. In a January 2003 rating decision, the RO reopened the claim for service connection for prostate cancer and denied the claim on the basis that there was no competent evidence of a nexus between the diagnosis of prostate cancer and active service. The Veteran was notified of this decision and he filed an appeal to the Board. In November 2005, the Board determined that new and material evidence had not been received to reopen the claim for service connection for prostate cancer and denied the appeal. The Veteran appealed this decision. In May 2006, the Court of Appeals for Veteran's Claims (Court) vacated the November 2005 Board decision and dismissed the Veteran's appeal due to lack of jurisdiction due to the Veteran's death. In April 2007, due to the death of the Veteran, the Board dismissed the appeal due to lack of appellate jurisdiction. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302. Thus, the January 2003 rating decision which adjudicated the claim for service connection for prostate cancer is final. 38 U.S.C.A. § 7105(c)(d)(5). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 2003 rating decision, the RO denied entitlement to service connection for prostate cancer on the basis that there was no competent evidence of a nexus between the diagnosis of prostate cancer and active service. The Veteran was notified of this decision and he perfected an appeal to the Board. In April 2007, the Board dismissed the appeal due to lack of jurisdiction due to the Veteran's death. 2. The Veteran's death certificate shows that he died in March 2006. 3. At the time of his death in March 2006, the Veteran had a pending claim to reopen service connection for prostate cancer on the basis of new and material evidence. 4. The appellant filed a claim for accrued benefits within one year of the Veteran's death. 5. The evidence at the time of the Veteran's death and received since the January 2003 rating decision is either cumulative or, in conjunction with previously considered evidence, does not relate to an unestablished fact of nexus to active service that is necessary to substantiate the claim for service connection for prostate cancer and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2003 rating decision to deny service connection for prostate cancer is final. 38 U.S.C.A. §7105 (West 2002); 38 C.F.R. §§ 20.1103, 20.1103, 20.1104 (2012). 2. The evidence received subsequent to the January 2003 rating decision is not new and material to reopen service connection for prostate cancer for accrued benefits purposes. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by letters dated in May 2006 and March 2011 regarding the appellant's claim for accrued benefits. VA informed the appellant that the claim for accrued benefits would be decided based upon the evidence in VA's possession at the time of the Veteran's death. VA informed the appellant of the information or evidence needed to substantiate a claim for accrued benefits and notified the appellant as to how an effective date is assigned if her claim is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For applications to reopen a claim based on new and material evidence, VA has a duty to notify the claimant of the definition of new and material evidence set forth in 38 C.F.R. § 3.156 and the basis upon which the claim for service connection had been previously denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the RO provided a VCAA notice letter to the appellant in March 2011 and this letter notified the appellant of what information and evidence must be submitted to reopen a claim based upon new and material evidence. The March 2011 letter notified the appellant of the definition of new and material evidence set forth in 38 C.F.R. § 3.156 and informed the appellant that the basis for the denial of service connection for prostate cancer in January 2003 was that there was no evidence of service incurrence, a diagnosis within one year from service separation, radiation or herbicide exposure in service, or nexus to other event or incident in service. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The claim was readjudicated in the June 2013 Supplemental Statement of the Case, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, pertinent regulations provide that a claim for accrued benefits is decided upon the evidence in VA's possession at the time of the Veteran's death. See 38 C.F.R. § 3.1000(a). This evidence is contained in the claims file. Therefore, the Board concludes that no further action is necessary. No further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Legal Authority Accrued Benefits Accrued benefits are defined as periodic monetary benefits payable under laws administered by VA to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). There are various threshold requirements that an appellant must meet in order to pursue an accrued benefits claim. One such requirement is that applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). Another requirement is that a veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236, 1241-1242 (Fed. Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at the time of death, the surviving spouse has no claim upon which to derive his or her own application). The provisions of 38 C.F.R. § 3.1000(d)(5) define a claim for VA benefits pending on the date of death as a claim "filed" with VA that had not been finally adjudicated by VA on or before the date of death. In addition, accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Service Connection and Reopening Claims Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Presumptive service connection on the basis of herbicide exposure is provided for specified diseases, including prostate cancer, manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116(a) (West 2002). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the presumptive disease shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2012). In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Analysis There are various threshold requirements that an appellant must meet in order to pursue an accrued benefits claim. One such requirement is that applications for accrued benefits must be filed within one year after the date of the. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). A claim for DIC is deemed to include a claim for accrued benefits. 38 C.F.R. § 3.1000(c). The appellant has satisfied the threshold requirements as she filed a claim for DIC in April 2006. The Veteran died in March 2006. See 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). The provisions of 38 C.F.R. § 3.1000(d)(5) define a claim for VA benefits pending on the date of death as a claim "filed" with VA that had not been finally adjudicated by VA on or before the date of death. The appellant has met the "claim pending" requirement as well. At the time of the Veteran's death, the Veteran's application to reopen service connection for prostate cancer was pending. The claim to reopen was received at the RO in November 2005. The claim was denied by the RO in a January 2006 rating decision, and the Veteran had filed a notice of disagreement. Service connection for prostate cancer was initially denied in February 1995. In a February 1995 rating decision, the RO denied service connection for a prostate disorder because there was no medical evidence of a "cause-and-effect" relationship between the Veteran's service-connected left varicocele and a prostate disorder, then shown to be benign prostatic hypertrophy, which was treated by a surgical procedure. The Veteran was notified in February 1995 of a rating decision that month; he did not appeal. The decision become final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.1103. This, in turn, means there must be new and material evidence to reopen this claim and warrant further consideration of it on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran applied to reopen his claim for service connection for a prostate disorder in January 1999. In a July 2000 rating decision, the RO determined that new and material evidence had been received and the claim for service connection for prostate cancer was reopened. The claim for service connection for prostate cancer was denied as not well grounded on the basis that there was no evidence of a nexus between the prostate cancer and active service. The Veteran was notified of this decision that month; he did not appeal. The decision become final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.1103. In a January 2003 rating decision, the RO readjudicated the claim for service connection for prostate cancer on the merits pursuant to the VCAA. The claim for service connection was denied on the basis that there was no competent evidence of a nexus between the diagnosis of prostate cancer and active service. The Veteran was notified of this decision and he filed an appeal to the Board. In November 2005, the Board determined that new and material evidence had not been received to reopen the claim for service connection for prostate cancer and denied the appeal. In May 2006, the Court of Appeals for Veteran's Claims vacated the November 2005 Board decision and dismissed the Veteran's appeal due to lack of jurisdiction due to the Veteran's death. In April 2007, due to the death of the Veteran, the Board dismissed the appeal due to lack of appellate jurisdiction. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302. Thus, the Board finds that the January 2003 rating decision is final. 38 U.S.C.A. § 7105(c)(d)(5). In November 2005, the Veteran's claim to reopen service connection for a prostate disorder was referred to the RO. In a rating decision dated in January 2006, the RO denied reopening service connection for a prostate disorder. The Veteran was notified of this decision and he filed a notice of disagreement in March 2006. Soon after, the Veteran died. The appellant filed a claim for accrued benefits in April 2006. In a November 2006 rating decision, the RO denied the claim to reopen service connection for prostate cancer for accrued benefits purposes. The appellant perfected an appeal. Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Thus, in the present appeal, the Board will consider the evidence secured or received since January 2003, the date of the last final rating decision which denied the claim, and March 2006, the date of the Veteran's death. The evidence received since the last final rating decision dated in January 2003 includes a July 2003 VA pulmonary examination; a July 2003 VA genitourinary examination report; a July 2003 VA gastrointestinal examination report; a July 2003 VA abdominal ultrasound report; VA treatment records dated from July 1990 to August 2005; a January 2004 certificate from Dr. R.A.; March 2004 reports of MRI's of the chest and brain; a clinical abstract from Dr. W.T.; a March 2004 statement from Dr. P.A.; an April 2004 medical certificate concerning physical therapy; medical records from the C.S. Medical Center dated from March 2004 to December 2005; medical records from the P. Heart Center dated in 2004; medical records from the T.L.C. Medical Center dated in 2003 and 2004; medical records from the S.L. Medical Center dated in 2005; medical records from the S.B. Medical Center dated in 2005; an October 2005 statement by Dr. T.U.; a June 2004 renal scan report; a February 2006 letter from a pro bono association; and written statements from the Veteran dated in April 2004, July 2004, August 2004, February 2005, July 2005, November 2005, December 2005, January 2006, and February 2006. The July 2003 VA pulmonary examination report, July 2003 VA genitourinary examination report, July 2003 VA gastrointestinal examination report, July 2003 VA abdominal ultrasound report, and the VA treatment records dated from July 1990 to August 2005 are new evidence since this evidence was not part of the record at the time of the January 2003 rating decision. However, this evidence is not material because this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for a prostate disorder. This medical evidence does not address whether there is a nexus between the prostate cancer and the Veteran's period of active service. The July 2003 VA gastrointestinal examination report and the ultrasound report note a history of status post prostatectomy. This is a fact that was already established at the time of the January 2003 rating decision. The additional evidence does not tend to show that the Veteran's prostate cancer was incurred in service or was medically related to service and does not raise a reasonable possibility of substantiating the claim. The January 2004 certificate from Dr. R.A., the March 2004 reports of MRI's of the chest and brain, the clinical abstract from Dr. W.T., the March 2004 statement from Dr. P.A., the April 2004 medical certificate concerning physical therapy, the medical records from the C.S. Medical Center dated from March 2004 to December 2005; medical records from the P. Heart Center dated in 2004; medical records from the T.L.C. Medical Center dated in 2003 and 2004; medical records from the S.L. Medical Center dated in 2005; medical records from the S.B. Medical Center dated in 2005; and the October 2005 statement by Dr. T.U. are new evidence since this evidence was not part of the record at the time of the January 2003 rating decision. However, this evidence is not material because this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for a prostate disorder. This medical evidence does not address whether there is a nexus between the prostate cancer and the Veteran's period of active service. In fact, this evidence addresses other disabilities and diseases the Veteran incurred after service. This evidence does not address the prostate cancer. This evidence is not relevant to the issue of service connection for prostate cancer and does not raise a reasonable possibility of substantiating the claim. Thus, this evidence is not material. The written statements from the Veteran dated in April 2004, July 2004, August 2004, February 2005, July 2005, November 2005, January 2006, and February 2006 are new evidence since this evidence was not part of the record at the time of the January 2003 rating decision. However, this evidence is not material because this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for a prostate disorder. The Veteran's statements do not address whether there is a nexus between the prostate cancer and the Veteran's period of active service. In fact, this evidence addresses other disabilities and diseases and not the prostate cancer. This evidence is not relevant to the issue of service connection for prostate cancer and does not raise a reasonable possibility of substantiating the claim. Thus, this evidence is not material. The December 2005 statement by the Veteran is new evidence since this evidence was not part of the record at the time of the January 2003 rating decision. However, this evidence is not material. In the December 2005 statement, the Veteran asserted that June 2004 renal scan establishes a nexus between the prostate cancer and service. The Veteran's general statements that the prostate cancer was caused by active service are not material evidence. The Veteran, as a lay person, was competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of prostate cancer falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. There is no evidence of record that the Veteran had any medical training or expertise. Lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet. App. 211 (1993); Hickson v. West, 11 Vet. App. 374 (1998). The June 2004 renal scan report is new evidence since this evidence was not part of the record at the time of the January 2003 rating decision. However, this evidence is not material because this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for a prostate disorder. This medical evidence does not address whether there is a nexus between the prostate cancer and the Veteran's period of active service. The additional evidence does not tend to show that the Veteran's prostate cancer was incurred in service or was medically related to service and does not raise a reasonable possibility of substantiating the claim. The February 2006 letter from a pro bono association is new evidence since this evidence was not part of the record at the time of the January 2003 rating decision. However, this evidence is not material because this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for a prostate disorder. This evidence does not address whether there is a nexus between the prostate cancer and the Veteran's period of active service. This evidence is not relevant to the issue of service connection for prostate cancer and does not raise a reasonable possibility of substantiating the claim. Thus, this evidence is not material. Accordingly, the Board finds that new and material evidence has not been received to reopen service connection for prostate cancer for accrued benefits purposes. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The appeal is denied. ORDER New and material evidence not having been received, the appeal to reopen service connection for prostate cancer for accrued benefits is denied. ____________________________________________ T.D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs