Citation Nr: 1328855 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-28 975 ) 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 submitted to reopen a claim of entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service with the Philippine Commonwealth Army from September 1941 to November 1942 and with the Regular Philippine Army from April 1945 to June 1946; he was a prisoner of war (POW) from April 1942 to November 1942. The Veteran died in May 1990; the appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that in a June 2012 substantive appeal, the appellant requested a Board hearing at a local RO. However, in a May 2013 statement, the appellant withdrew her request for a hearing, and the Board will therefore proceed with appellate review in this matter. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. 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 July 2004 rating decision, the RO denied the appellant's claim for service connection for the cause of the Veteran's death on the basis that there was no evidence that the Veteran's cause of death was caused by, or related to, his active service; and there was medical evidence rebutting the presumption that the Veteran's peptic ulcer was related to his time as a POW. 2. Evidence received since the July 2004 rating decision is not new and material and the appellant's claim of entitlement to service connection for the cause of the Veteran's death cannot be reopened. CONCLUSIONS OF LAW 1. The July 2004 rating decision that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105(c) (West 2002). 38 C.F.R. § 3.156(b) (2012). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 appellant's original claim of entitlement to service connection for the cause of the Veteran's death was denied in a September 2003 rating decision, essentially on the basis that there was no evidence that the Veteran's cause of death was related to his active service, nor was there evidence to suggest that his cause of death, which was in part due to a bleeding peptic ulcer, was related to his time as a POW. The appellant submitted new evidence within one year of the September 2003 rating decision, and as a result the RO reconsidered her claim. In a January 2004 rating decision, after considering the appellant's newly submitted evidence, the RO continued the September 2003 denial of service connection for the cause of the Veteran's death, essentially on the basis that there was no evidence that his cause of death was caused by, or related to, his active service and because there was medical evidence rebutting the presumption that his bleeding peptic ulcer was caused by his time as a POW. The appellant submitted new evidence within one year of the January 2004 rating decision, and therefore, the RO issued a July 2004 rating decision, which again denied the appellant's claim on the same basis as the January 2004 rating decision. The appellant did not appeal or submit new and material evidence within one year of that decision (July 2004) and it therefore became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. The appellant filed a claim to reopen her claim of entitlement to service connection for the Veteran's death in February 2008, which was denied in May 2008. The appellant submitted new evidence in support of her claim within one year of the May 2008 denial, and the RO reconsidered her claim. The RO issue a March 2009 rating decision continuing the May 2008 denial of the appellant's claim. The appellant appealed. The evidence of record at the time of the July 2004 rating decision included the Veteran's May 1990 death certificate, which listed an immediate cause of death as cardio respiratory arrest and an antecedent cause of death as a bleeding peptic ulcer; an April 1990 statement from Dr. T.C., a private physician, certifying that he had examined and treated the Veteran from March 2, 1990 to March 22, 1990 for severe anemia cause by a bleeding peptic ulcer secondary to "prolong intake of anti-rheumatic preparations," as well as for Koch's infection/pneumonia; and a May 1990 certification from the Philippine Veterans Affairs Office indicating that the Veteran had been receiving service-connected disability benefits for rheumatoid arthritis since August 1969. Also of record at the time of the July 2004 rating decision was a September 2003 statement from Dr. T.C. that detailed the treatment provided in March 1990 for the Veteran's bleeding peptic ulcer related to his rheumatoid arthritis medication, as well as a July 2004 statement from Dr. T.C., in which he hypothesized that it was likely the Veteran's peptic ulcer began during his time as a POW due to the irregular meal times, scarce medical supplies, inhumane treatment, and the tension and anxiety; and that the Veteran's rheumatoid arthritis treatment exacerbated this peptic ulcer. It is important for the Appellant to understand that the basis for the denial in July 2004 was a finding that the evidence submitted had rebutted a presumption that the peptic ulcer was caused by the Veteran's imprisonment as a POW and was instead caused by "prolong intake of anti-rheumatic preparations", as noted by Dr. T.C., a nonservice connected condition. Evidence received since the July 2004 rating decision includes an August 1963 certification from V Luna General Hospital in Quezon City, the Republic of the Philippines, which shows the Veteran was treated for symptoms of his rheumatoid arthritis in January 1961. Also received since the July 2004 rating decision is an August 1963 letter from the Philippine Veterans Affairs Office showing that the Veteran was receiving service-connected disability benefits for rheumatoid arthritis from the Philippine Veterans Affairs Office as early as July 1963 (not from VA). Additionally, subsequent to the July 2004 rating decision, the appellant submitted several internet articles in support of her claim. One of these articles addresses life as a POW and the remainder discusses the various causes and symptoms of peptic ulcers. In this regard, the Board finds that the newly received evidence documenting the Veteran's long standing diagnosis of rheumatoid arthritis serves only to note what was known prior to 2004: the Veteran was being treated for rheumatoid arthritis, a nonservice connected disability. Further, the letter from the Philippine Veterans Affairs Office showing the Veteran was service-connected for rheumatoid arthritis is redundant of evidence that was of record at the time of the July 2004 rating decision. Additionally, the Board finds that that the internet articles submitted by the appellant do not advance her claim as they are simply general articles relating to peptic ulcers and POWs (which is not in dispute), and do not provide any information directly applicable to the Veteran's cause of death or his active service. As such, and even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," and the Veteran's service as a POW, the claim is not reopened. 38 C.F.R. § 3.156(a). Overall, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The new evidence does not materially show that the Veteran's cause of death was related to his active service, or that his peptic ulcer was related to his time as a POW and not to his long time treatment for rheumatoid arthritis. Therefore, the Board concludes, that the appellant has not presented new and material evidence to reopen her claim. Accordingly, the appeal is denied. See 38 U.S.C.A. § 5108. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Kent at 9-10. Here, the VCAA duty to notify was satisfied by way of letters sent to the appellant in February 2008 and April 2012. These letters informed the appellant of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The April 2012 letter also informed the appellant of how VA assigns disability ratings and effective dates. These letters also provided the appellant notice in compliance with Kent. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. In the context of a claim for DIC benefits, § 5103(a) 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, 352-53 (2007). Although sufficient notice of the VCAA pursuant to Hupp was not provided in either the February 2008 or April 2012 letters, as neither of these letters provided the appellant with a statement of the conditions, if any, for which the Veteran was service-connected at the time of his death, the Board notes that this statement was provided to the appellant in a May 2010 statement of the case (SOC). Specifically, the SOC identified that the Veteran had no service-connected disabilities at the time of his death. The February 2008 and April 2012 VCAA letters satisfied the remaining elements of Hupp, and therefore, the duty to notify is satisfied. VA also has a duty to assist the appellant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's death certificate and pertinent post service medical records are associated with the claims file. A VA medical opinion was not obtained in this matter, however, none is required. With regard to cause of death claims, the duty to assist requirement under 38 U.S.C.A. § 5103(a) requires VA to make "reasonable efforts" to provide assistance if requested, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." See 38 U.S.C.A. § 5103(a)(2) (West 2002). Here, there is no indication that the Veteran's cause of death was in any way related to his active service and the medical evidence of record suggests that his peptic ulcer disease was caused by this long-term treatment for rheumatoid arthritis; rebutting the presumption that such disability was caused by, or related to, his time as a POW. Additionally, the Board notes that while the appellant requested a Travel Board hearing, she withdrew such request in May 2013. Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of her claim discussed above. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for the cause of the Veteran's death. The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs