Citation Nr: 1339936 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-18 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD D.M Casula, Counsel INTRODUCTION The Veteran had recognized guerilla service from February 24, 1945 to October 15, 1945, and regular Philippine Army service from October 16, 1945 to November 14, 1945. The Veteran died in February 1970. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO) which found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death. 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. By March 2006 rating decision, the RO found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for the cause of the Veteran's death. The appellant did not perfect an appeal of the March 2006 rating decision and it became final; thus, the March 2006 rating decision is the last final disallowance of the claim. 2. The additional evidence added to the record, since the RO's March 2006 rating decision, includes duplicative evidence and evidence that was not previously submitted, but which does not relate to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. With regard to the claim for service connection for the cause of the Veteran's death, the March 2006 rating decision is final. 38 U.S.C.A. §§ 7104(b), 7105 (West 2002); 38 C.F.R. §§ 3.160, 20.1104 (2012). 2. New and material evidence has not been received since the final March 2006 RO rating decision to reopen the appellant's cause of death claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has duties to notify and assist the claimant in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). When VA receives a complete or substantially complete application for benefits, it is required to (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain or assist the claimant in obtaining; and (3) inform the claimant of the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Also when, as here, there is a petition to reopen a claim that has been previously considered, denied, and not appealed, the notice must also specify the basis of the denial in the prior decision by describing the evidence necessary to substantiate the element(s) required to establish entitlement to service connection that was(were) found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, letters were sent to the appellant in June 2001, January 2006, and May 2011. The Board notes that the May 2011 letter is inaccurate regarding the prior final denial and does not pertain to the appellant's claim; however, the letters dated in June 2001 and January 2006, which were sent prior to the June 2011 rating decision on appeal, informed the appellant of the type of information and evidence required to substantiate this claim - to include the need to submit new and material evidence to reopen the claim, advised her of the basis for the prior denial of this claim, and apprised her of her and VA's respective responsibilities in obtaining this supporting evidence. Id. Thus, the Board concludes that the appellant has received all required VCAA notice concerning this claim. Moreover, she has not alleged any prejudicial error in the content or timing of the notice she received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the appellant, not VA, has this burden of proof of showing there is a notice error in timing or content and that it is unduly prejudicial - meaning outcome determinative of her claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist the appellant with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that in this case, a VA medical opinion is not required under 38 U.S.C. § 5103A(a), as new and material evidence has not been received to reopen the claim. The Board concludes that VA has satisfied its duty to assist the appellant in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. No useful purpose would be served in remanding for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background and Analysis The appellant contends that the Veteran's death should be service connected, claiming that the Veteran's service-connected leg and thigh injuries never completely healed, affected his overall health, and eventually led to his death. The appellant further contends that since his military service the Veteran was sick and weak due to his service-connected combat injuries and that his health was so poor that he maintained a high fever which developed into typhoid fever. To reopen a claim following a final decision, the appellant must submit new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Veterans who served in the Commonwealth Army of the Philippines (or Regular Philippine Army) are eligible for dependency and indemnity compensation (DIC), from and after the dates when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941. Service as a recognized guerrilla under the circumstances outlined in 38 C.F.R. § 3.40(d) is also included for DIC benefits. See 38 C.F.R. § 3.40(c); see also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart vi, Chapter 4, Section A, Topic 2, Block a (Eligibility Table for VA Benefits Based on Service in the Philippines). Service department records confirm that the Veteran served with the Recognized Guerillas from February 1945 to October 1945, and served with the Regular Philippine Army from October 1945 to November 1945. See 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The fact that the Veteran served in this capacity, which gives the appellant standing for DIC cause of death benefits, is not in dispute here. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Tuberculosis may be presumed to have been incurred during active military service if manifested to a degree of 10 percent or more within three years after termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the cause of a veteran's death, a service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). 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 this case, the Veteran died in February 1970. The death certificate lists the immediate causes of death as typhoid fever due to active pulmonary tuberculosis with hemopytosis. No autopsy was conducted. At the time of the Veteran's death, service connection was in effect for injuries to Muscle Groups XIV and XV of the right thigh, RFB, with healed scars, rated as 20 percent disabling; and injuries to muscle group XI, left leg, with healed scars, rated as 10 percent disabling. By October 1970 rating decision, the RO initially denied service connection for the cause of the Veteran's death. Thereafter, the appellant attempted to reopen the claim. The RO found that new and material evidence had not been submitted to reopen the claim for service connection for the cause of the Veteran's death in rating decisions dated in April 1978, and in May 1978. In a January 1979 decision, the Board affirmed the May 1978 RO rating decision. The Board notes that the January 1979 Board decision, which subsumes the prior RO decision, is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1104. Thereafter, the appellant continued to attempt to reopen the claim. By rating decision dated in September 2002, the RO continued to deny the appellant's claim by finding that new and material evidence had not been submitted to reopen the claim for service connection for the cause of the Veteran's death. The appellant again attempted to reopen the claim, and by March 2006 rating decision the RO again found new and material evidence had not been submitted to reopen the claim for service connection for the cause of the Veteran's death. Although the appellant filed a timely notice of disagreement with the March 2006 rating decision, she did not file a timely substantive appeal (VA Form 9); thus she failed to perfect an appeal of the March 2006 rating. Further, the Board finds that within one year of the March 2006 rating decision there was no relevant new and material evidence, medical or lay, physically or constructively received by VA, prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). As such, the March 2006 rating decision became final and it is the last final disallowance of the claim. The October 1970 rating decision denied service connection for the cause of death, finding that typhoid fever was initially noted on the certificate of death and there was no reasonable basis for holding that the Veteran's service-connected disabilities, which did not affect a vital organ, contributed materially or substantially to the Veteran's death. In the prior, final January 1979 Board decision and subsequent, final rating decisions, including in March 2006, the Board and RO denied the appellant's cause of death claim essentially because the competent medical evidence of record failed to establish that the cause of the Veteran's death from typhoid fever due to pulmonary tuberculosis with hemoptysis was related to his Philippine service during World War II and/or to his service-connected shrapnel wounds of the right thigh and left leg. In addition, there was no competent evidence of typhoid fever or pulmonary tuberculosis during service or within one year of service, and it appears that the first competent medical evidence of typhoid fever and pulmonary tuberculosis was in 1970, approximately 25 years after discharge from service. In considering the appellant's claim, the Board notes that the evidence of record at the time of the last, final, March 2006 rating decision consisted of service personnel records for the Veteran, several buddy statements regarding the nature of the Veteran's in-service shrapnel wounds, the Veteran's statements, an examination conducted for service in the Philippine Army, a death certificate signed by Dr. Manogan, letters from several private physicians, statements from the appellant, and other lay statements. In an affidavit dated in August 1971, Dr. Manogan stated that the Veteran had a wound on the left thigh suffered during service and that while under his care the Veteran died of typhoid fever. In a certificate dated in October 1977, Dr. Reyes stated that the Veteran had been under treatment at the Reyes Clinic for complications resulting from a bullet wound received while in service, which lowered his vitality and resistance to disease, and that, in spite of prolonged treatment, he eventually succumbed to typhoid fever. In a medical certificate dated in April 1978, Dr. Joven certified that he had examined the Veteran in 1946, 1947, 1969, and 1970. Dr. Joven indicated that in August 1947 the diagnosis and impressions were incomplete healing of the shrapnel wounds, and incipient tuberculosis of both lungs, indicated by the x-ray findings. Dr. Joven noted that on examination of the Veteran in late 1969 and 1970, the Veteran's health had been aggravated on account of unhealed shrapnel wounds, general weakness, advancing tuberculosis, and pus coming out of the wounds. In a joint affidavit dated in April 1978, acquaintances of the Veteran indicated that the Veteran suffered from wounds above the knees and that to their knowledge the Veteran died from several complications of his shrapnel wounds. In a certificate dated in August 1978, Dr. Manogan indicated that in February 1970 the Veteran was hospitalized for signs of irregular high fever, which at first was suspected to be typhoid fever, but towards the end, he had profuse hemoptysis that choked him and caused his death. Dr. Manogan indicated that the final diagnosis was active tuberculosis with hemoptysis which resulted as a possible complication of his "unhealing" wounds due to shrapnel during the war. Dr. Manogan noted that the suspicion of typhoid fever was never confirmed by the laboratory tests. On a special VA orthopedic examination in May 1951, it was noted that a chest x-rays revealed findings within normal limits. The diagnosis was residuals of shrapnel wounds of both lower extremities: healed scars, metallic foreign bodies, and muscle injury groups XI, XIV, and XV, mild. In a letter dated in July 2002, Dr. Manogan (the attending physician at the time of the Veteran's death) indicated that he wrote typhoid fever as the cause of death, but missed the fact that there was no loose bowel movement, which was a characteristic of typhoid fever, and therefore concluded that typhoid fever was not the cause of the Veteran's death. Dr. Manogan indicated that the actual cause of death was pneumonia secondary to tetanus, and that the pneumonia caused the high fever. Dr. Manogan claimed he was shown the ulcerated scar on the Veteran's left thigh and was convinced that the remote cause of death of the Veteran was tetanus originating from the ulceration of the scar on his left thigh above the knee. In a letter dated in November 2005, Dr. Quismorio indicated he had reviewed the notes of Dr. Manogan and the medical history of the Veteran and provided a diagram to explain the cause of the Veteran's death. Dr. Quismorio opined that the ultimate etiology of the cascading events leading to the Veteran's death was chronic long standing pulmonary tuberculosis. Evidence received since the March 2006 rating decision consists of the appellant's lay statements which included duplicate theories of entitlement, treatment records for the appellant, an authorization for release of information from Dr. Manogan and the Reyes Clinic, and a service processing document for the Veteran. For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In letters dated in June 2011 and July 2012, the appellant basically raised a duplicate theory of entitlement (regarding presumptive service connection for the Veteran's tuberculosis, pursuant to 38 C.F.R. §§ 3.307, 3.309) that had been raised in letters she submitted prior to March 2006. Further, the appellant's statements in general are also not new as they are basically repetitive of prior statements. Thus, the Board finds that the appellant's additional lay statements are cumulative of evidence that was previously of record and therefore not new and material. 38 C.F.R. § 3.156(a); see also Untalan v. Nicholson, 20 Vet. App. 467 (2006). With regard to the appellant's treatment records, while these records are new, they are not "material" to the claim for service connection for the cause of the Veteran's death, within the meaning of 38 C.F.R. § 3.156(a). With regard to the authorization for release of records from Dr. Manogan and the Reyes Clinic, the Board notes that such records, including opinion letters from Dr. Manogan, were previously associated with the record and were considered in RO and Board decisions dated prior to March 2006. Moreover, the appellant has previously indicated, including in a letter dated in July 2002, that the records from the Reyes Clinic were "all dump out" and that Dr. Manogan had reconstructed the history "out of his memory". Thus, this authorization, while new, is not material as it does not provide or suggest evidence that addresses the bases on which the claim was previously denied, and would not reasonably substantiate a reopened claim, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, supra. Finally, the appellant submitted a service processing document for the Veteran, pertaining to his Philippine service during World War II. While this actual document may be new, it is cumulative and redundant of other service documents that were previously associated with the claims folder. Further, this service document does not relate to an unestablished fact necessary to substantiate the cause of death claim, as the Veteran's Philippine service is not in dispute, and thus does not raise a reasonable possibility of substantiating the cause of death claim. 38 C.F.R. § 3.156(a). In short, in reviewing the evidence submitted since the March 2006 rating decision, the Board concludes that new and material evidence to reopen the appellant's claim for service connection for the cause of the Veteran's death has not been received, the claim is not reopened, and the benefit sought on appeal remain denied. 38 U.S.C.A. § 5108. ORDER The appellant has not submitted new and material evidence to reopen the previously denied claim of service connection for the cause of the Veteran's death, and the appeal is denied. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs