Citation Nr: 1421908 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 11-15 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death. 2. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to recognition of the Veteran's son as a helpless child for the purposes of VA benefits, on the basis of permanent incapacity of self-support prior to attaining the age of 18. WITNESSES AT HEARING ON APPEAL Appellant and Sister ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1945 to August 1945. He died in March 1993 and the Appellant is his surviving son. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Appellant and his sister testified at a Board hearing in July 2012. This transcript has been associated with the claims file. After his hearing, he submitted additional evidence accompanied by a waiver of initial RO consideration. 38 C.F.R. §§ 20.800, 20.1304(c) (2013). FINDINGS OF FACT 1. A May 2005 rating decision denied entitlement to service connection for the cause of the Veteran's death. This decision was not appealed and new and material evidence was not submitted before the expiration of the appeal period. Therefore it is final. Subsequent rating decisions in April 2008, September 2009, and February 2010 found new and material evidence had not been received sufficient to reopen the claim. 2. A January 2007 Board decision denied entitlement to benefits for the Appellant as due to being permanently incapacitated prior to the age of 18. This decision is unappealed and final. Subsequent rating decisions in April 2008, May 2008, September 2009, and February 2010 found new and material evidence had not been received sufficient to reopen the claim. 3. The evidence received since the prior final denials of the claims is cumulative of the evidence of record at the time of the final denials and does not relate to unestablished facts necessary to substantiate the claims of entitlement to service connection for the cause of the Veteran's death and benefits for permanent incapacity, nor does it raise the reasonable possibility of substantiating the Appellant's claims. CONCLUSIONS OF LAW 1. The May 2005 rating decision which denied the Appellant's claim for entitlement to service connection for the Veteran's death is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The January 2007 Board decision which denied the Appellant's claim for entitlement to service connection for the Veteran's death is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2013). 3. New and material evidence has not been received sufficient to reopen the Appellant's claims and they are 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 The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Appellant was provided with the relevant notice and information in a July 2009 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). It informed him what elements must be satisfied to substantiate his claims and of the reasons his claims were previously denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Appellant in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records for both the Veteran and Appellant have been obtained and associated with the claims file. VA's duty to assist with respect to obtaining relevant records has been met. 38 C.F.R. § 3.159(c) (2013). Finally, the Appellant and his sister testified at a Board hearing before the undersigned. The hearing was adequate as the undersigned explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2013). New and Material Evidence Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2013). 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "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. The 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). At the time of the prior denials, the evidence of record included service and private treatment records and statements. These revealed that the Veteran died in March 1993 due to pneumonia. There were also statements indicating that the Appellant was sick with meningitis as a child and subsequently developed a seizure disorder. The statements also revealed his sister took care of him because he could not support himself. Following his petition to reopen, the Appellant submitted evidence including personal statements, hearing testimony, and private treatment records. Some of the private medical records were duplicative, including the Veteran's treatment records from September 1980 showing a diagnosis of bronchiectasis and a letter from Dr. J. P. stating that the Veteran was treated for bronchitis and pneumonia in the late 1980s and early 1990s. The new evidence provided by the Appellant is either duplicative of evidence previously considered or does not pertain to the grounds of the prior, final denials. The Appellant's statements and testimony reiterate that the Appellant contracted meningitis before age 18 and that his sister takes care of him. The private treatment records reveal that the Appellant has been diagnosed with adult onset epilepsy, a fact which was already of record at the time of the denials. The hearing testimony, although presumed credible, also reiterated that the Appellant believes the Veteran's back injury caused his pneumonia, which lead to his death. At his hearing, to the extent that the Appellant reiterated arguments made when the RO previously denied the claims, this is not new evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Reid v. Derwinski, 2 Vet. App. 312 (1992). The Board finds that reopening is not warranted based on the evidence of record. The statements, testimony, and some private treatment records are new in that they were not part of the record prior to the denials. However, these records are not material in that they are duplicative of records previously considered which reveal the Veteran had a scar on his back, and the Appellant was treated for meningitis and epilepsy as a child, and his sister had to take care of him as he was unable to do so. The Board finds the preponderance of the evidence is against the Appellant's petitions to reopen. Consequently the benefit of the doubt rule does not apply and the petitions must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The petition to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. The petition to reopen the claim of entitlement to recognition of the Appellant as a helpless child for the purposes of VA benefits on the basis of permanent incapacity for self-support prior to the age of 18 is denied. ______________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs