Citation Nr: 1336360 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-20 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C.A. § 1318. 3. Entitlement to service connection for arteriosclerotic heart disease. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatic fever. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to February 1946. The Veteran died in March 2009. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2012, the Board remanded the claims, in part, to determine whether the appellant was eligible for substitution. The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) allows for substitution in the case of death of a claimant who dies on or after October 10, 2008. The Veteran died in March 2009 and the appellant filed a claim for death benefits within one year of the Veteran's death. Therefore, the Board remanded the claims to provide appropriate notification regarding substitution and to allow for the RO to make a decision regarding whether the appellant could be subsitututed in the Veteran's place for the purposes of processing the claims to completion. As will be explained in detail below, the appellant was provided an appropriate notification letter regarding substitution, service connection, and new and material evidence. However, the RO did not make a finding regarding substitution and continued to frame the issues as entitlement to service connection for service connection for arteriosclerotic heart disease for the purpose of accrued benefits and whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatic fever for the purposes of accrued benefits. Here, the Board finds that the appellant should be substituted as the claimant for the purposes of processing the claims to completion. She filed a request within one year of the Veteran's death, which was after October 10, 2008. Although the RO did not adjudicate the claim as such, there is no prejudice to the appellant as adjudicating the claims in this manner gives the appellant the benefit. As opposed to accrued benefits claims, a substitute claimant continues the pending claims. Additional development of the record may be undertaken and the substitute claimant can submit evidence in support of the claims. Thus, it is to the appellant's advantage to have the claims adjudicated as a substitute claimant pursuant to 38 U.S.C.A. § 5121A. The issues have been reframed as shown on the title page of this decision and further discussion of any notice requirements will be discussed in detail below. The record reflects that the appellant appointed a private representative. However, in June 2013 the appellant executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of the American Legion. The American Legion filed an informal hearing presentation with respect to the appeal and is properly listed as the representative. However, the statements submitted are cumulative and redundant of previous statements associated with the claims file and considered by the RO. Therefore, a waiver of review by the agency of original jurisdiction is not required. 38 C.F.R. § 20.1304(c) (2012). 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. The Veteran died in March 2009. The Certificate of Death lists the immediate causes of death as pneumonia and small cell carcinoma of the lung. Other significant conditions contributing to death but not resulting in the underlying cause of death were listed as chronic obstructive lung disease, arteriosclerotic heart disease, and hypertension. 2. At the time of the Veteran's death, he was service connected for bilateral hearing loss, evaluated as 100 percent disabling, tinnitus aurium, right ear, evaluated as 10 percent disabling, scar right middle finger, evaluated as noncompensably disabling, folliculitis, buttocks, evaluated as noncompensably disabling, and tinea cruris evaluated as noncompensably disabling. 3. The causes of the Veteran's death developed after service and the most probative evidence does not relate the causes to an in-service event, injury, or disease, and the Veteran's service-connected disabilities have not been identified as principal or contributory to the cause of death. 4. The Veteran was not rated as 100 percent disabling for a period of ten years or more prior to his death and was not rated as totally disabling continuously since the release from active duty and for at least 5 years immediately preceding death. The appellant has not argued that there was clear and unmistakable evidence in a prior rating decision, the record does not contain additional evidence consisting of service department records that existed at the time of a prior VA decision but were not considered, and there is no evidence that the Veteran was a prisoner of war. 5. The most competent and probative evidence does not relate heart disease to an in-service injury, event, or disease. 6. A May 1947 rating decision, in pertinent part, denied entitlement to service connection for rheumatic fever. 7. Evidence received since the time of the final May 1947 rating decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for rheumatic fever. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2013). 2. The criteria for entitlement to Dependency and Indemnity Compensation benefits under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. § 3.22 (2013). 3. The criteria for entitlement to service connection for arteriosclerotic heart disease are not met. 38 U.S.C.A. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 4. Evidence received to reopen the claim of entitlement to service connection for rheumatic fever is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2013). September 2012 letters satisfied the duty to notify provisions and notified the appellant of the regulations pertinent to service connection and the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to any timing error, the claims were readjudicated by October 2012 and December 2012 Supplemental Statements of the Case (SSOCs). Therefore, any defect in the timing of the notice of this information was harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Further, the portion of the March 2012 remand with respect to providing notification regarding service connection for arteriosclerotic heart disease has been completed. Stegall v. West, 11 Vet. App. 268 (1998). With respect to notification requirements regarding new and material evidence, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. VA satisfied the Kent notice requirements and advised the appellant on the evidence needed to substantiate a claim for service connection. Thus, the portion of the March 2012 remand with respect to providing adequate notification has been completed. See Stegall, 11 Vet. App. 268 (1998). The claim was readjudicated in the October and December 2012 SSOCs and, therefore, any timing error has been cured. See Prickett, 20 Vet. App. 370, 377-78 (2006). 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In the March 2012 Remand, the Board noted that the appellant was not provided with Hupp-compliant notice and the appellant should be provided notification regarding substitution. The appellant was sent an adequate notification letter in September 2012 which satisfied the Court's holding in Hupp, id. The appellant was also provided information regarding substitution and indicated that she should provide evidence and statements regarding the Veteran's claims for service connection and new and material evidence. Finally, the appellant was also notified regarding the provisions of 38 U.S.C.A. § 1318. The appellant's claims were readjudicated in SSOCs in October 2012 and December 2012. Any timing error with respect to the notice has been cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In light of above, the Board also concludes that this portion of the Board's Remand directives has been completed. Stegall v. West, 11 Vet. App. 268 (1998). VA has also fulfilled its duty to assist the appellant by obtaining identified and available evidence needed to substantiate the claims including VA treatment records and service treatment records. In the March 2012 Remand, the Board directed that the RO/AMC provide the appellant VA Forms 21-4142s to obtain any private treatment records. The September 2012 notification letter indicated enclosure of the VA Forms 21-4142 and requested that the appellant complete the form so that VA may obtain private records. The appellant did not complete or return any forms. She has stated on numerous occasions that she has no further evidence to submit. See December 2012 statement. VA's duty to assist is not a one-way street. If the claimant wishes help, he or she cannot passively wait for it in those circumstances where his or her own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board concludes that this portion of the Board's March 2012 Remand directives has been completed. See Stegall, id. The Board notes that the appellant mentioned that the Veteran was hospitalized for three months after his separation from active service to treat his rheumatic fever. However, as noted in the SSOCs, the VA hospitalization records are already associated with the claims file. In addition, the appellant reported that she took the Veteran for appointments at the VA facilities in Milwaukee and Madison. The claims file contains VA treatment records from the Madison VA Medical Center and hospitalization records from the Milwaukee VA facility. The Board finds that another remand to obtain records from VA facilities is not required. The appellant has stated in a September 2012 letter that VA has all the information on her husband and herself. In December 2012, she again stated that she had no further evidence to submit and to decide her case as soon as possible. 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). In addition, a medical opinion was obtained with respect to the claim for service connection for the cause of the Veteran's death. The June 2010 medical opinion listed an assessment of small cell lung cancer and that the Veteran died of small cell lung cancer. The examiner stated that any other problem could have perhaps hastened his death and minimally contributed to it, but none were the cause nor did they substantially contribute to it. With regard to his rheumatic fever, this did not cause nor aggravate his arteriosclerotic heart disease or hypertension and he did not have any residuals of rheumatic heart disease. Therefore, his arteriosclerotic heart disease and hypertension were not caused by nor aggravated by his rheumatic fever infection in the military. The Board recognizes that the examiner did not provide an opinion as to whether the causes of death, small cell lung cancer or pneumonia, were directly related to his period of active service. Such an opinion is not required. There is no contention that his causes of death (small cell lung cancer or pneumonia) were causally related to active service. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement). Likewise, the service treatment records do not reveal any notations regarding the Veteran's lungs or pneumonia. Further, there is no evidence of these conditions until years after separation from active service. Indeed, the Certificate of Death noted that the interval between the pneumonia's onset and death was weeks. Instead, the appellant claimed that the Veteran died due to his heart disease, which was related to his rheumatic fever. However, as noted above, the examiner addressed this contention and provided a negative opinion. Therefore, the examiner's opinion is adequate and a remand for another medical opinion is not required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Board recognizes that there is no medical opinion as to whether the claimed arteriosclerotic heart disease is causally or etiologically related to active service. With respect to arteriosclerotic heart disease, there is no in-service, event, injury, or disease to which the claimed disability could be related. The only contentions regarding the relationship between the claimed disability and active service are the appellant's and the Veteran's contentions that his heart disease was related to his rheumatic fever. As explained above, the examiner stated that rheumatic fever does not cause arteriosclerotic heart disease. The appellant and the Veteran were not competent to provide such an opinion. Therefore, an opinion as to direct service connection is not warranted. 38 C.F.R. § 3.159(c)(4). With respect to the petition to reopen the claim of entitlement to service connection for rheumatic fever, VA has no duty to provide a medical examination when a veteran has not presented new and material evidence to reopen a final claim. 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(iii) (2013). No new and material evidence was received in this case as to the claim for service connection for rheumatic fever. Therefore, an examination/opinion is not required. Finally, with respect to the appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318, the salient issues are whether the Veteran was assigned a total disability rating for a period of 10 years prior to his death, rated as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war. A VA opinion would not yield relevant evidence as to these inquiries. As such, an opinion is not required with respect to her claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318. Service Connection for the Cause of the Veteran's Death Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause 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 the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). If the evidence shows that the veteran died of a disorder that was ultimately related to his military service, the regulations do not require a service-connected disability to be the primary cause of death, only to be "etiologically related" or "causally connected." 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The Veteran died in March 2009. The Certificate of Death lists the immediate causes of death as pneumonia and small cell carcinoma of the lung. Other significant conditions contributing to death but not resulting in the underlying cause of death were listed as chronic obstructive lung disease, arteriosclerotic heart disease, and hypertension. First, the Board notes that the appellant has not contended that the Veteran's service-connected disabilities caused or contributed to the Veteran's death. The Veteran was service-connected for bilateral hearing loss, evaluated as 100 percent disabling, tinnitus aurium, right ear, evaluated as 10 percent disabling, scar right middle finger, evaluated as noncompensably disabling, folliculitis, buttocks, evaluated as noncompensably disabling, and tinea cruris evaluated as noncompensably disabling. The aforementioned service-connected disabilities were not listed on the Certificate of Death and the evidence of record does not otherwise indicate that the Veteran's service-connected disabilities contributed to the Veteran's death. Therefore, service connection is not warranted on the basis that a service-connected disability was a principal or contributory cause of death. Instead, the Veteran has claimed that the Veteran's death was due to heart disease, which was related to his rheumatic fever that he incurred during his period of active service. First, with respect to the causes of death listed as pneumonia, chronic obstructive lung disease, and lung cancer, the service treatment records are absent for such disabilities and the disabilities were not present until decades after active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). The appellant has not stated that these disabilities were related to active service or that the Veteran experienced continuity of symptomatology since his period of active service. Therefore, service connection for cause of death is not warranted on the basis of these disabilities. The Board will now address the appellant's contentions that the Veteran's heart disease, as the cause of his death, was related to active service. The medical evidence of record shows that the Veteran was treated for rheumatic fever months after his separation from active service and was hospitalized for three months. The hospitalization record shows that the Veteran was hospitalized from July 1946 to September 1946. The final diagnosis was listed as rheumatic fever, acute. Treated, subsided. The physician noted potential rheumatic heart disease and recommended re-examination in 3, 6, and 12 months to determine presence of rheumatic heart disease. An April 1947 report of electrocardiogram reflected a clinical diagnosis of rheumatic heart disease although it was noted that the electrocardiogram was within normal limits. An accompanying April 1947 special health examination noted that the Veteran was discharged in February 1946 and he developed an acute rheumatic fever in July 1946. The cardiac examination showed that the apex of the heart was percussed at the fifth inter-space inside the mid-clavicular line and no definite cardiac enlargement. Cardiac tones were loud and forceful and regular with no arrhythmias. The diagnosis was listed as "no cardiac organic disease found" and "rheumatic, fever, history of." Decades later, there is no diagnosis of rheumatic heart disease. The VA treatment records dated in the 2000s reflect diagnoses of coronary artery disease and arteriosclerotic disease. Again, the Certificate of Death lists the immediate causes of death as pneumonia and small cell carcinoma of the lung. Other significant conditions contributing to death but not resulting in the underlying cause of death were listed as chronic obstructive lung disease, arteriosclerotic heart disease, and hypertension. A VA medical opinion was obtained in June 2010. The physician reviewed the claims file including the Certificate of Death. The physician stated that the Veteran was hospitalized for rheumatic fever in 1946 for over two months. The physician stated that the VA treatment records show no residuals of rheumatic fever and that the October 2004 echocardiogram showed no significant valvular abnormalities. The physician noted that the Veteran was diagnosed with hypertensive heart disease and coronary arteriosclerotic disease. The physician listed as assessment of "small cell lung cancer." He stated that this was a deadly cancer with very few survivors even with treatment. This is what the Veteran died of and any other problem could have perhaps hastened his death and therefore minimally contributed to it, but none were the cause nor did they substantially contribute to it. With regard to his rheumatic fever, this does not cause nor aggravate arteriosclerotic heart disease or hypertension. He had no residuals of rheumatic heart disease. Hypertension and arteriosclerotic heart disease were not caused by nor aggravated by his rheumatic fever infection in the military. The Board assigns probative value to the physician's opinion as the physician reviewed the claims file, noted the evidence relied upon and provided opinions with supporting rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). With respect to continuity of symptomatology, the appellant stated that the Veteran had heart problems ever since his rheumatic fever. The appellant also submitted statements from the Veteran regarding his belief that he had heart problems from his rheumatic fever. The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arteriosclerosis, cardiovascular-renal disease, to include hypertension, and endocarditis are recognized as chronic conditions. 38 C.F.R. § 3.309(a). While the appellant believes that the Veteran had heart problems since active service, the VA examination conducted in 1947 indicated that the Veteran did not have heart disease. In fact, the medical evidence did not reflect a diagnosis of coronary artery disease, arteriosclerosis, and hypertension until many years after separation from active service. Further, the June 2010 VA physician found that the Veteran's cause of death was small cell lung cancer and the other listed conditions on the Certificate of Death, to include hypertension and arteriosclerotic heart disease, minimally contributed, but did not substantially contribute to the Veteran's cause of death. Therefore, service connection on the basis of continuity of symptomatology is not warranted. While the Board is sympathetic to the appellant's contentions, the Board must initially evaluate the competency of lay evidence. Here, the appellant is competent to describe the symptoms that she observed. However, she is not competent to provide an opinion as to whether the Veteran's heart disease was related to his rheumatic fever. 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, whether the Veteran's cause of death is related to rheumatic fever as specifically expressed by the appellant, falls outside of the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board assigns more probative weight to the June 2010 examiner's opinion that the Veteran did not have residuals of rheumatic heart disease and that the rheumatic fever did not cause nor aggravate his arteriosclerotic heart disease or hypertension. Further, the examiner went on to state that the other listed conditions did not cause nor substantially contribute to the Veteran's death. Therefore, service connection for cause of death is not warranted. In sum, the death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) - (c). The most competent and probative evidence does not reflect that the Veteran's death was etiologically related to active service or that his service-connected disabilities were principal or contributory causes of the Veteran's death. In addition, beyond the appellant's assertions, the evidence does not reflect a diagnosis of hypertension or heart disease in service or within one year of discharge to warrant presumptive service connection. 38 C.F.R. §§ 3.307, 3.309(a). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b). Accordingly, the Board concludes that service connection for the cause of the Veteran's death is not warranted. DIC benefits under 38 C.F.R. § 1318 VA will pay Dependency and Indemnity Compensation pursuant to 38 U.S.C.A. § 1318 if the Veteran's death was not the result of willful misconduct and, at the time of death, any one of the three following circumstances existed: 1) the Veteran was receiving or entitled to receive compensation for service-connected disability that was rated by VA as 100 percent disabling for at least 10 years immediately preceding death; 2) the Veteran had been rated 100 percent disabled since release from active duty and for at least five years immediately preceding death; or 3) the Veteran was rated as 100 percent disabled for a continuous period of not less than one year immediately preceding death and was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. 38 C.F.R. § 3.22 (b) states: For purposes of this section, "entitled to receive" means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) Additional evidence submitted to VA before or after the veteran's death consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or (3) At the time of death, the veteran had a service-connected disability that was rated continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation [. . .]. Here, the Veteran was not rated as 100 percent disabled for a period of ten years or more prior to his death and was not rated as totally disabled continuously since the release from active duty and for at least 5 years immediately preceding death. The appellant has not argued that there was clear and unmistakable error in a prior rating decision, the record does not contain additional evidence consisting of service department records that existed at the time of a prior VA decision but were not considered, and there is no evidence or contention that the Veteran was a prisoner of war. Finally, the Veteran was not rated as disabled pursuant to 38 C.F.R. § 3.22(a)(2) and, therefore, 38 C.F.R. § 3.22(b)(3) is not for application. Based on the foregoing, the Board must deny the claim. In this respect, the law is dispositive, and this claim must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board sympathizes with the appellant's circumstances, but is obligated to decide cases based on the law and the evidence before it. Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (holding that the Board is bound by the law and is without authority to grant benefits on an equitable basis). Legal Criteria - Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran reported that his arteriosclerotic disease and heart problems were related to his rheumatic fever. The service treatment records do not reflect any notations or documentation regarding rheumatic fever or heart disease. The February 1946 report of physical examination completed prior to discharge shows that the Veteran's cardiovascular system was evaluated as normal. Shortly after discharge from active service, the Veteran was hospitalized from July 1946 to September 1946 for treatment of rheumatic fever. The final diagnosis was listed as rheumatic fever, acute. Treated, subsided. The physician noted that the Veteran had potential rheumatic heart disease and recommended that he be reexamined in 3, 6, and 12 months to determine the presence of rheumatic heart disease. A July 17, 1947 report of electrocardiogram noted a diagnosis of rheumatic heart disease, but the electrocardiogram was interpreted as normal. The accompanying special heart examination reflected that no cardiac organic disease was found and the Veteran had a rheumatic, fever, history of. The subsequent VA treatment records reveal assessments of arteriosclerotic disease and coronary artery disease. There is no indication of rheumatic heart disease; the records only reflect notations of a history of rheumatic heart disease. Further, a medical opinion was obtained in June 2010. The examiner stated that rheumatic fever does not cause nor aggravate arteriosclerotic heart disease. More importantly, the Board emphasizes that the service treatment records do not reflect any in-service disease, injury, or event to which the Veteran's arteriosclerotic heart disease could be related. As explained above, the Veteran's rheumatic fever had its onset months after separation from active service. The Board recognizes the appellant's belief and that of the Veteran that his arteriosclerotic heart disease was caused by his rheumatic fever. However, this is a complex medical question that requires medical training, which the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The June 2010 examiner reviewed the claims file, cited to evidence, and stated that rheumatic fever does not cause or aggravate arteriosclerotic heart disease. In light of the above, the Board finds that service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. The claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55-57. Finally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular-renal disease (including hypertension), arteriosclerosis, or endorcarditis (all forms of valvular heart disease) becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Here, the Veteran was treated for rheumatic fever within the first year of separation from service. However, the evidence did not reflect heart disease. The special heart examination completed in April 1947 shows that there was no evidence of cardiovascular disease, arteriosclerosis, or any form of valvular heart disease. Therefore, service connection on a presumptive basis is not warranted. New and Material Evidence Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. 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) (2013). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The RO denied service connection for rheumatic fever in a November 1946 rating decision. Additional evidence was received and the RO readjudicated the claim in a December 1946 rating decision. Again, additional evidence was received and the RO readjudicated the claim in a May 1947 rating decision. The Veteran was notified of the rating decision and notified that he could appeal the decision "at any time within one year from the date of this letter." The Veteran did not appeal the decision and, therefore, the May 1947 rating decision with respect to the denial of service connection for rheumatic fever is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1103 (2012). At the time of the May 1947 rating decision, the evidence associated with the claims file included service treatment records, VA hospitalization records, private treatment records, the Veteran's statements, and a VA examination report. The service treatment records were absent for any notations or diagnoses related to rheumatic fever. The report of medical examination completed prior to discharge showed that the cardiovascular system was clinically evaluated as normal. In a signed November 1946 statement, the Veteran stated that he was hospitalized from July 1946 to September 1946 for rheumatic fever. He stated that the rheumatic pains began when he injured his right knee during active service. He stated that since his discharge from the hospital, he had pains in the right knee and the right foot. A September 1946 report of hospitalization shows that the Veteran was hospitalized from July 1946 to September 1946 for rheumatic fever. The Veteran stated that in June 1946, he had a sore throat and then developed pain in his low back. In the middle of June, he began having pain in his right knee and both feet. In July 1946, his feet were painful and he could hardly move or get out of bed. He then developed pains in the left wrist and palm. The final diagnosis was listed as rheumatic fever, acute. Treated, subsided. The examining physician noted that there was potential rheumatic heart disease and recommended that the Veteran be re-examined in 3, 6, and 12 months to determine presence of rheumatic heart disease. A December 1946 report from Dr. B. stated that the Veteran had arthritis or rheumatic fever. Dr. B. explained that the Veteran injured his right knee during active service. It was noted that the Veteran was confined for rheumatic fever. Dr. B. stated that: "There can be no doubt that he has suffered much from inflammatory rheumatism or some similar affection to which he may become more or less subject to future affections." In an April 17, 1947 report of electrocardiogram, the clinical diagnosis was listed as rheumatic heart disease. However, the electrocardiogram was interpreted as normal and no abnormalities were noted. Further, the accompanying report of medical examination dated April 17, 1947 shows that physical and cardiac examinations were completed. The examiner listed diagnoses of no cardiac disease found and rheumatic, fever, history of. The May 1947 rating decision explained that the claim was reviewed and there was no change in the previous rating for the other conditions. The initial rating decision denied the claim as rheumatic fever was incurred after service. In addition, it was noted that the rheumatic fever was acute. Evidence associated with the claims file since the May 1947 rating decision included the Veteran's statements, the appellant's statements, VA medical treatment records, a VA medical opinion, an article from the Mayo Clinic, and private treatment records. With respect to the statements from the appellant and the Veteran, they are not considered new and material evidence to reopen the claim for service connection. While they are new, they are not material. The Veteran and the appellant stated that they believed the Veteran's heart problems began with his rheumatic fever. The appellant stated that the Veteran believed he had a defective heart due to rheumatic fever and the appellant believed that the Veteran's heart problems began with his rheumatic fever. The Veteran and the appellant are not competent to diagnose rheumatic fever nor are they considered competent to provide an opinion that any residuals from rheumatic fever were present. While for the purposes of new and material evidence, statements are deemed credible, in this instance, the appellant and the Veteran's statements are not competent. This is a complex medical question that requires medical training and knowledge, which neither the Veteran nor the appellant were shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the statements do not constitute new and material evidence that raises a reasonable possibility of substantiating the claim. With respect to the VA medical treatment records and private treatment records to include a statement from the Veteran's dentist, only reflect notations of a history of rheumatic fever. Thus, the VA medical treatment records and private treatment records are not considered new and material evidence that raises a reasonable possibility of substantiating the claim. With respect to the June 2010 VA medical opinion, the VA physician reviewed the claims file and stated that there were no residuals related to rheumatic fever. The physician also mistakenly referred to the rheumatic fever having been treated during service. The evidence is new, but not material. While the physician referred to the rheumatic fever as being in service, the objective medical evidence of record shows that the rheumatic fever was treated after service. Again, the opinion does not raise a reasonable possibility of substantiating the claim as the opinion emphasized that the Veteran did not have residuals from rheumatic fever. The appellant submitted an article from the Mayo Clinic. The article indicated that in some cases, inflammation caused by rheumatic fever may cause long-term complications. It was noted that rheumatic heart disease is permanent damage to the heart caused by the inflammation of rheumatic fever and that damage to the mitral valve, other heart valves, or other heart tissues can cause problems with the heart later in life. The evidence is new because it was not considered at the time of the May 1947 rating decision. However, the Board does not find the article to be material. To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim. While the article indicates that in some cases rheumatic fever can cause rheumatic heart disease and other later complications, the medical evidence associated with the claim period and in proximity to the claim do not reflect any residuals of rheumatic fever to include rheumatic heart disease. The June 2010 VA medical opinion specifically noted that there were no residuals related to rheumatic fever. As such, the general article, not specific to the facts of the Veteran's case, does not raise a reasonably possibility of substantiating the claim. In light of the above, new and material evidence has not been received and the claim of entitlement to service connection for rheumatic fever is not reopened. ORDER Entitlement to service connection for cause of death is denied. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. Entitlement to service connection for arteriosclerotic heart disease is denied. New and material evidence has not been received and the claim of entitlement to service connection for rheumatic fever is not reopened. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs