Citation Nr: 1329024 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-15 296A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a service connection claim for the cause of the Veteran's death, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. He died in October 1992. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. In June 2013, the appellant and her son testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death was denied in a November 1992 rating decision; the appellant did not perfect an appeal regarding this issue. 2. The evidence received since the November 1992 rating decision is cumulative or redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death. CONCLUSION OF LAW 1. The November 1992 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2012). 2. New and material evidence has not been received sufficient to reopen the 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 CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. 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 or on behalf of the appellant. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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. The Court has also issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. VCAA letters dated in July 2007 and December 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The appellant was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claim. These letters informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, the December 2007 letter also advised the appellant of the reason for the previous final denial of service connection for the cause of the Veteran's death and instructed her on the meaning of new and material evidence. Although VA did not notify the appellant of how VA determines the disability rating and effective date, she is not prejudiced by this lack of notice because as will be discussed further below, the claim is not being reopened. As such, no effective date or disability rating will be assigned. Bernard v. Brown, 4 Vet. App. 384 (1993). As to the Veterans Law Judge's duty to notify and assist pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010), during the appellant's June 2013 Board hearing, the Veterans Law Judge asked questions concerning the deceased Veteran's service and post-service history, and there was no indication that the represented appellant had any additional information to submit. Id. at 498-99. Accordingly, the clarity and completeness of the hearing record was intact and the purpose of 38 C.F.R. § 3.103(c)(2) (2012) was fulfilled. Id. at 499. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA medical treatment records, and private medical records are in the file. The Board finds no indication that other available, outstanding treatment records exist. Therefore, the Board concludes that all records identified by the appellant as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. Concerning the appellant's petition to reopen the previously denied claim for service connection for the cause of the Veteran's death, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(1). VA has fulfilled its duty to assist. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence Claims A. Law and Regulations Generally, a claim which 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 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). 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). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). B. Cause of the Veteran's Death As noted, service connection was denied for the cause of the Veteran's death in November 1992. The RO noted that according to the Veteran's death certificate, the immediate cause of death was cardiorespiratory failure due to kidney problems; no other significant conditions were noted as contributing to the Veteran's death. No autopsy had been performed. The RO further noted that at the time of his death, service connection was in effect for shell fragment wounds of the right thigh (rated as 20 percent disabling) and shell fragment wounds of the abdomen (rated as 10 percent disabling). Service connection had previously been denied for hypertension with renal disease. The RO remarked that the post-service treatment records reflected a history of renal failure since July 1989. The RO further observed that the Veteran's service treatment records were negative for high blood pressure readings or a kidney problem. The RO concluded that there was no showing by the evidence of record that the Veteran's death was due to a disease or injury which was incurred in or aggravated by his active military service, and there was no showing that the cause of the Veteran's death arose and became a compensable disability within one year following his separation from active duty. The RO also found that the evidence did not establish that the Veteran's service connected disabilities contributed substantially or materially to the cause of the Veteran's death. Evidence added to the record since the November 1992 rating decision includes additional VA treatment records which reflect ongoing treatment for renal failure from 1990 through 1992. The appellant additionally submitted an application for Medicare benefits dated in February 1992 which indicates that the Veteran required regular dialysis. Additionally, the appellant and her son have expressed a belief that the Veteran had posttraumatic stress disorder, hypertension, panic attacks, tinnitus, and gunshot wounds. See, for example, statement from October 2008, VA form 9 submitted in May 2009, and June 2013 Board hearing transcript. Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The fact that the Veteran had numerous shell fragment wounds incurred while he was on active duty was considered at the time of the previous final decision and is therefore cumulative. The Veteran's treatment for hypertension and renal disease from 1990 through 1992 is also cumulative, as the RO considered in the November 1992 decision that the Veteran was treated for hypertension and renal disease. None of the added medical treatment records provide any connection between the Veteran's cardiorespiratory problems, renal disease, and his active duty. In essence, the medical evidence added to the record since the November 1992 rating decision does not raise a reasonable possibility of substantiating the claim. Concerning the personal statements offered by the appellant and her son, the Board notes that neither of them appear to have had any medical training. While they are both competent to report what comes to them through their senses, neither the appellant nor her son have medical or psychiatric expertise to render an opinion on the nature of a psychiatric disability and its possible influence on the cause of the Veteran's death. In this case; there is no observable cause and effect relationship. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). As such, while they may sincerely believe that the Veteran had a mental disability as a result of his active duty that contributed to the cause of the Veteran's death, neither is competent to make such a diagnosis or etiology opinion. As such, their statements do not raise a reasonable possibility of substantiating the claim. In summary, the defects existing at the time of the prior final decision have not been cured, and the claim of entitlement to service connection for the cause of the Veteran's death may not be reopened. ORDER New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs