Citation Nr: 1335986 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 13-15 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to April 1947 and from December 1949 to October 1979. He died in June 1983, and the appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2011 by the RO (Regional Office) in St. Paul, Minnesota. In July 2013, the Board remanded the matter for additional development. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. Aside from an October 2013 statement from the appellant's representative, no new records pertinent to this appeal were found therein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a May 2011 rating decision, the RO denied reopening the appellant's claim for service connection for the cause of the Veteran's death. The appellant neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the May 2011 decision is essentially cumulative of the evidence already of record. CONCLUSIONS OF LAW 1. The May 2011 decision that denied the application to reopen the claim for 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, 20.1103 (2013). 2. Evidence received since the May 2011 decision is not new and material and the application to reopen the claim for service connection for the cause of the Veteran's death is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in March 2011, July 2013, and August 2013 were provided the appellant with an explanation of the type of evidence necessary to substantiate her claim, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. The letters also provided her with information concerning effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the notices provided do not include any information concerning the evaluation that could be assigned should service connection be granted pursuant to Dingess, since this decision affirms the RO's denial of service connection, the appellant is not prejudiced by the failure to provide her that further information. VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board additionally calls attention Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007) which pertains to claims for Dependency and Indemnity Compensation. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 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. In this case, the Veteran was service-connected for asthmatic bronchitis, arthritis of the dorsal spine, limited motion of the left ring finger, hearing loss of the left ear, and a hiatal hernia at the time of his death. The August 2013 letter advised the appellant of this fact, and provided notice regarding what information and evidence would be required to substantiate a DIC claim based on a previously service-connected condition, as well as a condition not yet service connected. The Board finds the requirements of Hupp are satisfied. Additionally, the Board calls attention to Kent v. Nicholson, 20 Vet. App. 1 (2006), which addresses notice requirements specific to new and material claims. Essentially, under Kent, the appellant must be apprised as to the requirements both of the underlying service connection claim, as well as the definitions of new and material evidence. Kent further requires that the notice inform the appellant as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. Here, the July 2013 letter from the RO sets forth the elements of a service connection claim and includes the complete standard for new and material evidence for a claim filed on or after August 29, 2001, which applies to the appellant's case. The August 2013 letter further provides notice of what evidence would be necessary to reopen the appellant's claim service connection for the cause of the Veteran's death based on previous denials. For all of these reasons, the Board concludes that the claim may be adjudicated without a remand for further notification. After issuance of the July and August 2013 letters, and an opportunity for the appellant to respond, the claim was readjudicated in a September 2013 supplemental SOC (SSOC). Hence, the appellant is not shown to be prejudiced by the timing of the Hupp and Kent notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. The appellant was afforded the opportunity for a personal hearing. Given the Board's determination below that reopening of the claim is not warranted because new and material evidence has not been received, there is no duty to obtain a medical opinion. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347 (Fed.Cir.2008). The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its July 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ provided notice in compliance with Kent and Hupp. As addressed in further detail below, the AOJ also informed the appellant that if there is evidence that the Veteran had primary lung cancer or oat cell cancer, that evidence must be submitted by her. The Board finds that substantial compliance has been achieved. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the appellant's claim. Therefore, no further assistance to the appellant with the development of evidence is required. Analysis Generally, a claim which has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An 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, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). DIC is paid to a surviving spouse of a qualifying Veteran who died from a service- connected disability. 38 U.S.C.A. § 1310; Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. In determining whether the disability that resulted in the death of a Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. In a rating decision of May 2011, the RO declined to reopen the appellant's claim for service connection for the cause of the Veteran's death. The evidence of record at the time consisted of statements from the appellant, the Veteran's death certificate, service records, VA treatment records, and private medical records, including an autopsy report. The record showed that prior to the Veteran's death, he was service-connected for asthmatic bronchitis, arthritis of the dorsal spine, limited motion of the left ring finger, hearing loss of the left ear, and a hiatal hernia. His death certificate showed that he died in June 1983. The immediate cause of death was respiratory failure, due to or as a consequence of undifferentiated metastatic carcinoma with lung, brain, and liver involvement, due to or as a consequence of chronic obstructive lung disease and reactive airway disease. In the May 2011 decision, the RO noted that the claim was originally denied by the RO shortly after the Veteran's death in August 1983 because the cause of death was shown to be carcinoma of the liver. The RO noted that this decision was appealed, and in September 1984, the Board found that the Veteran died of respiratory failure as a consequence of undifferentiated metastatic carcinoma with lung, brain, and liver involvement with chronic obstructive lung disease and reactive airway disease. The Board found that the primary site of the cancer was at the liver. The RO noted the Board's conclusion that there was no affirmative evidence showing that the steroid therapy for the Veteran's asthma prevented the timely diagnosis of his fatal disease. The records showed that the metastatic carcinoma was of such proportion and extent that the death might have been anticipated regardless of the coexisting service-connected disabilities. The RO held that new and material evidence had not been submitted. There was no evidence to show that the Veteran had treatment for a liver condition while in service, or that the steroid treatment he received prevented the early diagnosis of his cancer. The RO determined that the claim had not been successfully reopened. As determined by the Board in July 2013, the May 2011 RO decision is final. The Appellant neither appealed this decision nor submitted new and material evidence within the one year appeal period. See 38 C.F.R. § 3.156. Since the May 2011 rating decision, the Appellant sought to reopen her claim by submitting an application to reopen in June 2011. The evidence received since the final May 2011 decision includes a duplicate copy of the Veteran's death certificate, and two articles printed from the internet on oat cell cancer. In the course of this appeal, the appellant has argued that the Veteran had oat cell cancer, which originates in the lungs. She argues that this oat cell cancer developed as the result of exposure to herbicides in Vietnam and that presumptive service connection is warranted for the lung/oat cell cancer. She essentially contends that the primary site for the Veteran's cancer was the lungs, and that the death certificate does not show that the primary site was the liver, as previously determined by VA. She additionally argues that the Veteran's steroid therapy for asthma prevented the timely diagnosis of his fatal disease by masking the symptoms. The first internet article submitted by the appellant is brief, and states that oat cell cancer of the lungs may develop as a result of exposure to toxic chemicals. It also provides general information concerning oat cell cancer. The second internet article is longer and provides more extensive general information regarding oat cell carcinoma, including a picture of the carcinoma, its incidence in the general population, and treatment options. The evidence submitted since the May 2011 decision is not material. The evidence is cumulative of arguments previously asserted; namely, that the causes of the Veteran's death, including lung cancer, were related to service, and/or that the Veteran's service-connected respiratory problems were a principal or a contributory cause of his death. The basis for the RO's denial was that a service-related disability did not constitute the principal or a contributory cause of the Veteran's death. These articles and assertions do not establish that the Veteran in this case had primary lung cancer or that he had oat cell cancer. The internet articles do not address the facts that are specific to this Veteran's case. As such, the Board finds that the information reflected in the submitted articles is not probative of the medical questions at issue in this appeal. Indeed, pursuant to the Board's July 2013 remand instructions, the RO asked the appellant to submit any evidence to support that the Veteran had primary lung cancer or oat cell cancer. The appellant submitted no such evidence. In other words, the basis for the prior denial was the lack of probative evidence establishing a service-connected disability as either the principal or contributory cause of death, or establishing a relationship between a disability associated with the cause of death and an injury, disease, or event in service. None of the evidence received since the May 2011 denial establishes this. The record remains devoid of evidence establishing that the Veteran's service-connected disabilities (asthmatic bronchitis, arthritis of the dorsal spine, limited motion of the left ring finger, hearing loss of the left ear, and a hiatal hernia) were the principal or contributory cause of death. The record remains devoid of evidence establishing that the Veteran's causes of death (respiratory failure, due to or as a consequence of undifferentiated metastatic carcinoma with lung, brain, and liver involvement, due to or as a consequence of chronic obstructive lung disease and reactive airway disease) were related to service. The articles and the appellant's arguments are cumulative and redundant of the arguments already of record at the time of the May 2011 denial, specifically, that the Veteran's death was service-related. Consequently, the evidence is not new and material and reopening of the claim is not warranted. The appellant's own lay pleadings are unsupported and are nothing more than an attempt to consider a different theory of entitlement. Such bare allegations do not constitute new and material evidence or establish a new claim. See generally Boggs v. Peake, 520 F.3d 1330 (2008) (a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim); Ashford v. Brown, 10 Vet. App. 120 (1997). These lay pleadings are simply a reiteration of her general assertions that the Veteran's death was related to his military service. Even assuming their competence and credibility, the statements are cumulative and cannot be considered new and material evidence. Thus, the additional evidence received since the May 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). Accordingly, the Board finds that the claim for service connection for the cause of the Veteran's death is not reopened. ORDER The application to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs