Citation Nr: 1329879 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-00 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. 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. 2. Entitlement to accrued benefits based on the Veteran's claim for service connection for a respiratory disorder (including bronchitis and emphysema). 3. Entitlement to accrued benefits based on the Veteran's claim for service connection for a seizure disorder (including black outs). 4. Entitlement to accrued benefits based on the Veteran's claim for service connection for a cardiac disorder. 5. Entitlement to accrued benefits based on the Veteran's claim for service connection for a skin disorder (including cysts). 6. Entitlement to accrued benefits based on the Veteran's claim for service connection for an eye disorder. 7. Entitlement to accrued benefits based on the Veteran's claim for service connection for a psychiatric disorder. ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION 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). The Veteran served on active duty from February to June 1954; he also had various periods of active duty for training, including 15 days in July 1958. The Veteran died in December 1997, and the appellant is his surviving spouse. In October 2002, the appellant appointed an attorney as her representative before the Board and before the United States Court of Appeals for Veterans Claims (Court). However, in November 2003, the Board granted that attorney's constructive motion to withdraw as the appellant's representative. The appellant subsequently was represented by the American Legion, but she notified the RO in early 2012 that she did not want to be represented by that organization. The appellant has represented herself since then. The record before the Board consists of the appellant's paper claims file and an electronic file known as Virtual VA. The Virtual VA file does contain pertinent material that is not contained in the paper claims file, namely correspondence from the appellant dated in 2011 and 2012. In the VA Form 9 the appellant submitted to the RO on January 3, 2012, the appellant indicated that she did not want a Board hearing. However, a subsequent Report of General Information, dated January 25, 2012, stated that the appellant requested a BVA hearing. Therefore, in July 2013, the Board contacted the appellant to ascertain her wishes about a Board hearing. Later that same month, the appellant wrote and stated that she did not want a Board hearing. Her request for a Board hearing is therefore considered withdrawn. As there is no outstanding hearing request, the Board will proceed with consideration of the issues on appeal. By way of explicating the lengthy procedural history in this case, this matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 1999 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that denied the appellant's claims of entitlement to Dependency and Indemnity Compensation (DIC), based on service connection for the cause of the Veteran's death and the provisions of 38 U.S.C.A. § 1318, and entitlement to Dependent's Educational Assistance under 38 U.S.C.A. Chapter 35. In September 2000, the Board denied the appellant's claims. She appealed to the Court. The Court vacated the Board's decision and remanded the matters to the Board so it could consider the impact of the Veterans Claims Assistance Act of 2000 (VCAA). In May 2002, the Board again denied the appellant's claims. The appellant again appealed to the Court. While the case was pending at the Court, the appellant's attorney and the VA Office of the General Counsel filed a Joint Motion to vacate the Board's May 2002 decision and to remand the claims for readjudication. In an April 2003 Order, the Court granted the joint motion, vacated the Board's decision, and remanded the claims to the Board for readjudication. In August 2005, the Board remanded the case for further development consistent with the April 2003 Order of the Court and the Joint Motion. After accomplishing additional development, the RO continued to deny the appellant's claims (as reflected by the April 2006 Supplemental Statement of the Case (SSOC)) and returned the case to the Board. In July 2007, the Board again denied the appellant's claims. The appellant again appealed to the Court. In an August 2009 memorandum decision, the Court upheld the Board's decision. The appellant then appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In February 2010, the Federal Circuit found that all of the appellant's claims concerning her case related to questions of fact and dismissed the case for lack of jurisdiction. In April 2011, the appellant submitted a request to reopen her claim for service connection for the cause of the Veteran's death. The reopening of the claim was denied in a rating decision issued in June 2011. The present appeal arises from that June 2011 RO denial. The accrued benefits issues are addressed in the REMAND portion of the decision below and those six issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran died in December 1997, and the immediate cause of his death was cardiac arrest due to or as a consequence of a myocardial infarction and cardiomyopathy; other significant conditions contributing to the Veteran's death but not resulting in the underlying cause were diabetes mellitus and chronic obstructive pulmonary disease. 2. At the time of the Veteran's death, he was not service-connected for any disability. 3. The Board denied service connection for the cause of the Veteran's death in a final decision issued in July 2007; this decision was affirmed by the United States Court in an August 2009 Memorandum Decision and the appeal of the Court's decision was dismissed by the Federal Circuit in February 2010. 4. The evidence considered by the Board in its July 2007 final decision included service medical and personnel records for the Veteran; VA treatment records for the Veteran dated between 1954 and 1997; the Veteran's 1954 and 1978 claims for benefits; the report of VA medical examination conducted in August 1980; private medical provider letters dated in 1998; the Veteran's death certificate; the appellant's January 1998 claim for benefits; written statements from the appellant; the transcript from the appellant's April 2005 Travel Board hearing; and an April 2006 VA medical opinion. 5. The evidence submitted since the Board's July 2007 final decision includes copies of service medical and personnel records for the Veteran; copies of VA treatment records; copies of newspaper articles; copies of documents submitted to the United States Court of Appeals for the 5th Circuit from an unrelated case; and written statements from the appellant. 6. The evidence submitted since the Board's July 2007 final decision includes evidence that was not previously of record, but that evidence does not relate to an unestablished fact, nor does the evidence raise a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The Board's July 2007 decision denying service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.200, 20.1100, 20.1104 (2012). 2. New and material evidence has not been presented since the July 2007 Board decision denying service connection for the cause of the Veteran's death; thus, that claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As previously noted, the appellant's claim for service connection for the cause of the Veteran's death was most recently denied by the Board in a July 2007 decision. The appellant appealed the Board's decision to the Court. In an August 2009 Memorandum Decision, the Court upheld the Board's decision. The appellant then appealed the Court's decision to the Federal Circuit. In February 2010, the Federal Circuit found that all of the appellant's claims concerning her case related to questions of fact and dismissed the case for lack of jurisdiction. The basis of the Board's July 2007 denial was that there was no evidence that the Veteran's fatal cardiac arrest that occurred due to, or as a consequence of, a myocardial infarction and cardiomyopathy, had its onset during service, or any cardiac disorder was otherwise related to a disease or injury of service origin. Furthermore, the Board found that there was no evidence that the Veteran's diabetes mellitus or his chronic obstructive pulmonary disease (COPD) had their onset during service, or that these disorders were otherwise related to a disease or injury of service origin. The July 2007 Board decision represents the last final action on the merits of the cause of death claim. See Glynn v. Brown, 6 Vet. App. 523 (1994). The July 2007 Board decision also represents the last final decision on any basis as to the issue of whether the appellant is entitled to service connection for the cause of the Veteran's death. Evans v. Brown, 9 Vet. App. 273 (1996). Thus, the Board must consider whether any of the evidence submitted since the July 2007 Board decision constitutes new and material evidence. I. Duty to Notify and Assist VA's duty to notify and assist claimants in substantiating their claims for VA benefits is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or in a supplemental statement of the case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Supreme Court has held that an error in VA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of requests to reopen. With respect to such matters, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Additionally, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court addressed VA's 38 C.F.R. § 5103(a) notice obligation in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits under 38 C.F.R. § 1310. The Court held that, because the RO's adjudication of a DIC claim hinges first on whether a veteran was service-connected for any condition during his or her lifetime, the 38 C.F.R. § 5103(a) notice in such a claim 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, 21 Vet. App. at 352-53. The Court also held that when a claimant's DIC application and accompanying evidence expressly raises a specific issue regarding, or the evidence submitted in connection with it relates to, a particular element of a claim, VA is required to provide notice that informs the claimant of how to substantiate the assertion advanced, and takes into account the evidence submitted in connection with the application. Id. at 353. In this case, a notice letter provided to the appellant, in May 2011, included the criteria for establishing service connection for the cause of a veteran's death. The appellant was also provided with an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. That is, she was told that she needed to submit evidence that showed that a disability that was incurred in or aggravated during service was the primary or contributory cause of her husband's death. In the September 2011 SOC, the appellant was provided with the criteria for reopening a previously denied claim. Furthermore, the appellant was informed why her cause of death claim was previously denied, namely there was no evidence demonstrating that the Veteran's death was related to his service in that a cardiac disorder had not been shown to have had its onset during service or within one year of the Veteran's discharge from service. Also in the September 2011 SOC, the appellant was informed that the Veteran had not been service-connected for any condition during his lifetime. In addition, the SOC reflects readjudication of the appellant's cause of death claim. Mayfield, 444 F.3d at 1333. In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the appellant in proceeding with the present decision. The May 2011 letter from the RO contained the information required by Dingess concerning effective dates only. However, as the Board concludes below that the preponderance of the evidence is against the appellant's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Moreover, the appellant has not demonstrated any prejudicial or harmful error in VA notice, and any presumption of error as to the first element of VA notice has been rebutted in this case. See Shinseki v. Sanders, supra. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the elements required to establish service connection for the cause of a veteran's death that were found insufficient in the previous denial. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the RO also readjudicated the case after the notice was provided by way of the SOC issued in September 2011. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as any timing error did not affect the essential fairness of the adjudication. 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(a); 38 C.F.R. § 3.159(c), (d). The RO has reviewed the claims file. The appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and she was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available records that she wanted the RO to obtain for her that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave her notification of her rights under the pertinent statute and regulations. Therefore, there is no duty to assist or notify that is unmet. VA has not provided the appellant with a medical opinion in connection with her April 2011 claim; however, the Board finds that VA was not under an obligation to provide an opinion in connection with that claim. The appellant has not brought forth new and material evidence to reopen the claim. 38 C.F.R. § 3.159(c)(4)(iii) states that paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. In addition, the Board previously obtained a medical opinion in April 2006. For these reasons, the Board finds that VA was not under an obligation to provide another medical opinion in connection with the appellant's current claim. The appellant was informed as to the reason her cause of death claim had previously been denied; she was adequately advised of the bases for the previous denial to determine what evidence would be new and material to reopen her claim. See Kent v. Nicholson, supra. She was also afforded opportunities to submit evidence. Moreover, the appellant has not demonstrated any prejudicial or harmful error in VA notice, any presumption of error as to the first element of VA notice has been rebutted in this case, and the Board finds no such error in the evidentiary record. See Shinseki v. Sanders, supra. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. The Merits of the Request to Reopen In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. New and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b). Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). As previously noted, the July 2007 Board decision was the last time the appellant's claim was finally disallowed on any basis. See Glynn v. Brown, 6 Vet. App. 523 (1994). The July 2007 Board decision is final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Therefore, the appellant's claim may be reopened only if new and material evidence has been secured or presented since the July 2007 decision. The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define 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. 38 C.F.R. § 3.156(a). The appellant's claim for benefits was denied in essence because the cause of her deceased husband's death was not related to his military service; any new and material evidence must relate to this. The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Proper analysis of the question requires a determination of whether the claim should be reopened and, if so, an adjudication on the merits after compliance with the duty to assist. The evidence considered by the Board in making its July 2007 decision included such evidence as service medical and personnel records for the Veteran; VA treatment records for the Veteran dated between 1954 and 1997; the Veteran's 1954 and 1978 claims for benefits; the report of VA medical examination conducted in August 1980; private medical provider letters dated in 1998; the Veteran's death certificate; the appellant's January 1998 claim for benefits; written statements from the appellant; the transcript from the appellant's April 2005 Travel Board hearing; and an April 2006 VA medical opinion. The evidence of record as of July 2007 revealed that the Veteran died in December 1997 at the age of 61. The immediate cause of death as shown on the death certificate was cardiac arrest due to or as a consequence of a myocardial infarction and cardiomyopathy. Other significant conditions contributing to death but not resulting in the underlying cause were diabetes mellitus and COPD. An autopsy was not performed. At the time of the Veteran's death, he was not service-connected for any disability. The claims file was reviewed by a VA physician in April 2006. The reviewing physician noted the Veteran's medical history, to include an incident in service wherein the Veteran was struck by a rifle in the left ear in basic training, as well as in-service complaints regarding the Veteran's right ear for which the diagnosis was cholesteatoma. The examiner noted that the Veteran's post-service medical records indicated that the Veteran was hospitalized with diagnoses of apparent gastric and intestinal bleeding, epilepsy symptomatic secondary to old cerebrovascular accident, hypertension and chronic bronchitis in 1977. In February and March of 1978, the Veteran was hospitalized for respiratory tract infection, chronic bronchitis and emphysema. The reviewer further noted that the Veteran had diagnoses of a seizure disorder and a chronic cough going back to 1970. Medical records dated after this noted other hospital admissions and treatment for bronchitis, respiratory tract infection, pulmonary edema, diabetes mellitus, atherosclerotic coronary artery disease, hypertension, and a seizure disorder. The Veteran was noted to be a 45 pack year smoker and a heavy drinker and that he quit sometime in the 1980s. The reviewing physician stated that the Veteran's service discharge examination showed normal findings. After reviewing the volumes of medical records and the Veteran's service records, the reviewing physician concluded that there was no evidence to substantiate the contention that the onset of the Veteran's diabetes mellitus occurred during service; the reviewer determined that it was not as least as likely as not that the Veteran's diabetes mellitus was etiologically related to any incident that occurred during his period of active service. Regarding the Veteran's COPD, the reviewing physician concluded that there was no evidence to substantiate the contention that the onset of the Veteran's COPD occurred during active service and that it was less likely as not that this condition was etiologically related to any incident that occurred during his period of active service. The reviewing physician also concluded that there was no evidence in the medical record to substantiate the contention that the Veteran developed any cardiac disorder during his period of service or that he manifested such a disorder within one year of his discharge from service and that it was less likely as not etiologically related to any incident that occurred during his period of active service. As for the Veteran's cerebrovascular injury, the reviewing physician concluded that there was no medical evidence to substantiate the contention that the Veteran developed this condition during service and that it was less likely as not etiologically related to any incident of service. Regarding the seizure disorder, the reviewing physician concluded that there was no medical evidence to substantiate the contention that the Veteran developed the seizure disorder during his period of active service or that the disorder was manifested within one year from his June 1954 service separation. The physician opined that it was less likely as not etiologically related to any incident in the service, to include the Veteran having been struck about the left ear by a rifle in May 1954. Finally, the reviewing physician concluded that there was no evidence in the medical record to substantiate the contention that any disease or injury of service origin contributed to the cause of the Veteran's death from cardiac arrest due to or as a consequence of myocardial infarction and cardiomyopathy. The appellant submitted a request to reopen her claim of entitlement to service connection for the cause of the Veteran's death in April 2011. The evidence considered by the RO in conjunction with that claim included copies of service medical and personnel records for the Veteran; copies of VA treatment records; copies of newspaper articles on topics that were unrelated to the Veteran; copies of documents submitted to the United States Court of Appeals for the 5th Circuit from an unrelated case; and written statements from the appellant. After having carefully reviewed the evidence of record, the Board finds that the appellant has not presented evidence since the July 2007 Board decision which raises a reasonable possibility of substantiating the claim of entitlement to service connection for cause of the Veteran's death. Since the July 2007 Board decision, the only evidence received into the record consists of duplicates of previously submitted documents, written statements from the appellant; and copies of newspaper articles and court documents unrelated the cause of death claim. The copies of previously submitted documents simply reflect information that was already of record prior to the July 2007 Board denial. In addition, the multiple handwritten statements submitted by the appellant do not contain any reference to any new nexus opinion or information about the etiologic causes of the Veteran's death. No available medical evidence shows that the Veteran suffered from a cardiac disorder, diabetes mellitus or COPD during service or during any period of active duty for training or within one year of his June 1954 discharge from active service. See 38 C.F.R. § 3.307(a)(3). In addition, no medical opinion or other professional evidence relating the Veteran's death from myocardial infarction and cardiomyopathy, or the Veteran's diabetes mellitus or COPD to service or any incident of service has been presented since the July 2007 Board denial. The appellant continues to contend that the conditions that caused her husband's death are related to his military service. As stated before, the Veteran's death certificate states that he died from myocardial infarction and cardiomyopathy and that other significant conditions contributing to his death but not resulting in the underlying cause were diabetes mellitus and COPD. The appellant's written statements merely reiterate her prior arguments. Furthermore, the appellant's claim is not substantiated by any other evidence in the record - only by her own assertions about her husband's death. The Board notes that lay statements are not material within the meaning of 38 C.F.R. § 3.156. See Moray v. Brown, 2 Vet. App. 211, 213-144 (1993). Furthermore, there is no clinical evidence of record intimating in any way that the cause of the Veteran's death was some pathology that was related to some aspect of his military service. The evidence added to the record since the issuance of the July 2007 Board decision does not address or contradict the reasoning offered in support of the July 2007 denial. In other words, it does not tend to support any one of the appellant's contentions in a manner not already shown in July 2007. The newly received evidence merely demonstrates that the appellant continues to maintain that her husband's death was related to his military service. Moreover, the appellant has only submitted documents and statements that are duplicative of the evidence that was already of record in July 2007, or else unrelated to the issue of entitlement to service connection for the cause of the Veteran's death. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Board finds that the evidence submitted since the July 2007 Board decision does not provide relevant information as to the question of whether the Veteran's death was causally or etiologically related to any incident of his military service and that no such evidence has been received, before or since the July 2007 denial. For the reasons set forth above, none of the evidence added to the record since the July 2007 Board decision, either by itself or in the context of all the evidence, is new and material evidence sufficient to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Therefore, the July 2007 Board decision remains final, and the cause of death claim is not reopened. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful, and that the appellant is sincere in her belief that her husband's death was related to his military service. However, while the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which the benefit sought may be granted. Thus, evidence received in conjunction with the claim to reopen is not new and material, and does not serve to reopen the claim for service connection for cause of the Veteran's death. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of this claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). ORDER New and material evidence not having been submitted to reopen the claim for service connection for the cause of the Veteran's death, the appeal is denied. REMAND In August 2005, the Board remanded the case for further development consistent with the April 2003 Order of the Court and the Joint Motion. In that remand, the Board noted that a review of the record disclosed that the appellant had filed a claim for accrued benefits based on the Veteran's claims for service connection for a respiratory condition (including bronchitis and emphysema); a seizure disorder (including black outs); a heart condition; a skin condition (including cysts); an eye condition; and a nervous condition, as they were pending at the time of his death. These claims were denied in a rating decision issued in January 2007; the appellant was notified of the denials the next month. In a written statement dated February 21, 2007, the appellant stated that she disagreed "100 percent" with the decision dated February 6, 2007. This serves as a timely notice of disagreement (NOD). However, no statement of the case (SOC) is of record as to the accrued benefits issues. Where an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). On remand, therefore, the appellant must be provided an SOC that addresses the accrued benefits issues. The appellant must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on those issues to secure appellate review by this Board. 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. Examine the appellant's accrued benefits claims. If no additional notice or development is required, prepare an SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought, or by the appellant's withdrawal of the NOD. 2. If, and only if, the appellant files a timely substantive appeal, should any one of the accrued benefits issues be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case must be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs