Citation Nr: 1444444 Decision Date: 10/06/14 Archive Date: 10/16/14 DOCKET NO. 11-27 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. Whether new and material evidence has been received to reopen a claim of entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran had active service from February 1939 to October 1945 and from October 1950 to April 1957. He received the Purple Heart. The appellant claims as the surviving spouse. The appellant's claims come before the Board of Veterans' Appeals (Board) on appeal from January 2011 and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction of the claims file is with the RO in Honolulu, Hawaii. A review of the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. The Virtual VA paperless claims processing system contains relevant documents including the January 2011 rating decision and statements submitted by the appellant. This matter was previously before the Board in April 2014 , at which time it was remanded for further development. It is now returned to the Board. The appellant provided testimony at a September 2012 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDINGS OF FACT 1. In an October 2003 administrative decision, the RO denied the claim of entitlement to cause of the Veteran's death and entitlement to DIC benefits under 38 U.S.C.A. § 1318; the appellant did not appeal this decision. New and material evidence was not received within one year of notification. 2. The evidence added to the claims files subsequent to the October 2003 administrative decision does not include evidence that relates to an unestablished fact necessary to substantiate the claims on appeal; the evidence received is cumulative or redundant of that previously considered. CONCLUSIONS OF LAW 1. The October 2003 administrative decision that denied service connection for cause of the Veteran's death and entitlement to DIC benefits is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The evidence received subsequent to the October 2003 administrative decision contain is not new and material or relevant for the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a), (c) (2013). 3. The evidence received subsequent to the October 2003 administrative decision is not new and material or relevant for the claim of entitlement to DIC benefits. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.156(a), (c) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The duty to notify in this case was satisfied by a letter sent to the Veteran in April 2014. The claim was last adjudicated in April 2014. VA's duty to assist the Veteran in the development of the claim includes assisting him 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. The Board finds that all necessary development has been accomplished. The claims file contains the Veteran' service treatment records, as well as post-service reports of VA examination and identified private treatment. During the September 2012 hearing, the undersigned VLJ clarified the issues on appeal, explained the concept of new and material evidence, identified an evidentiary deficit, and suggested the submission of additional evidence to support the appellant's claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. The AOJ provided adequate VCAA notice and obtained outstanding service department records as requested by the April 2014 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). After review of the Veteran's statements and the medical evidence of record, no available outstanding evidence has been identified. For these reasons, no further assistance to the appellant is required. 38 C.F.R. § 3.159(c). II. New and material evidence The Secretary must reopen a previously and finally disallowed claim when "new and material evidence" is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. § 3.156(a) (2013). In order to satisfy these requirements, the evidence "must be both new and material." Smith v. West, 12 Vet.App. 312, 314 (1999). "New and material evidence" is defined as follows: 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); see also Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156(a) must be read as creating a "low threshold" and that it "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"). 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). Section 3.156(c) is generally applicable when VA receives additional relevant official service department records that existed but were not associated with the claims file at the time of the prior denial. 38 C.F.R. § 3.156(c). Unlike § 3.156(a), nothing in § 3.156(c) limits relevant official service department records to information not previously associated with the claims file. Compare 38 C.F.R. § 3.156(a), with § 3.156(c)(1); see New and Material Evidence 70 Fed.Reg. at 35,388 (June 20, 2005) (explaining that VA was removing the "new and material" requirement in § 3.156(c), stating that it was "confusing," because in practice, VA may "reconsider" a prior decision when VA receives service department records that were unavailable at the time of the prior decision). III. Analysis Service connection for cause of the Veteran's death and DIC was initially denied in a June 1990 rating decision. The appellant did not appeal that decision. The issue was revisited in October 2003 at which time the denial was continued. At the time of the October 2003 rating decision, the record included the claim, partial service records, post-service treatment records, the death certificate, and a hospital discharge summary. The death certificate lists the immediate cause of death as myelofibrosis. The overriding basis for the prior denial for service connection for the cause of the Veteran's death was the absence of a nexus to service. The evidence associated with the claims file since the October 2003 administrative decision includes service treatment records not previously associated with the claims file, the September 2012 hearing testimony, and the appellant's lay statements. In this case, the newly received evidence does not relate to an unestablished fact necessary to reopen the previously denied claim of service connection for the cause of the Veteran's death or entitlement to DIC. Reconsideration is warranted when VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. Here, the additional records are not "relevant" service department records as they do not relate to the diagnosis, treatment, or complaint of myelofibrosis. As these additional records do not pertain to whether the cause of the Veteran's death is related to his service, they are not material and reconsideration is not warranted. Although the appellant's additional statements and hearing testimony are new, they are not material since they fail to show that the Veteran had a disability related to his service that was the cause of his death. Accordingly, the Board must deny the appellant's application to reopen the claim of service connection for the cause of the Veteran's death. In sum, the added evidence is not new and material under 38 C.F.R. § 3.156(a) or relevant under 38 C.F.R. § 3.156(c). In this case, the application to reopen the previously denied claim for the cause of the Veteran's death must be denied because none of the evidence relates to any basis for prior denial. None of the added evidence is new and material or relevant. As none of the new evidence relates to any basis for the prior denial of service connection for the cause of the Veteran's death, the application to reopen the claim must be denied. Although the threshold to reopen is low, such threshold is not met in this case. See Shade, 24 Vet. App. at 118. DIC may still be awarded if, at the time of the Veteran's death, he was receiving, or was entitled to receive, compensation for a service-connected disability that was rated totally disabling. In such cases, the total rating must have been in effect for at least 10 years preceding the Veteran's death; or the disability must have been rated totally disabling by VA continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or the Veteran must have been a former prisoner of war and met certain other criteria. 38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (2013). At the time of his death, the Veteran was in receipt of a 100 percent disability evaluation. However, that rating did not become effective until February 23, 1988, more than 5 years after the Veteran's discharge and less than 10 years prior to his death on January 11, 1990. There is also no evidence to suggest that the Veteran was a former POW. The evidence associated with the claims file following the October 2003 administrative decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to DIC under 38 U.S.C.A. § 1318. Specifically, the evidence does not suggest that a total rating had been in effect for a period of ten or more years immediately preceding the Veteran's death, or continuously since his separation. Moreover, the evidence does not suggest that the Veteran was a POW. Therefore, such evidence is not material or relevant. Accordingly, the Board finds that the claim for DIC benefits under 38 U.S.C.A. § 1318 is not reopened. ORDER The application to reopen the claim for entitlement to service connection for the cause of the Veteran's death is denied. The application to reopen the claim for entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318 is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs