Citation Nr: 1510115 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 12-20 950 ) 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 received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran had active service from March 1957 to June 1976. He died in February 1985. The appellant is advancing her claim as the Veteran's widow. This claim is on appeal from decisions of the Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which found that the appellant had not submitted new and material evidence to reopen her claim of service connection for the cause of the Veteran's death. FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death was originally denied in an unappealed August 1994 rating decision. 2. In November 2006, the RO determined that new and material evidence had not been submitted to reopen the previously disallowed claim for service connection for the cause of the Veterans death. 3. In November 2009, the Board issued a decision denying reopening the appellant's claim for service connection for the cause of the Veteran's death and the appellant did not complete an appeal of the decision. 4. Evidence added to the record since the November 2009 Board decision does not relate to an unestablished fact necessary to substantiate the appellant's 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. The November 2009 Board decision that denied service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7104 (West 2014). 2. Evidence received since the November 2009 Board decision is not new and material, and the claim for service connection for the cause of the Veteran's death is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran 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). The Board has reviewed both the Veteran's virtual, and physical, file in adjudication of this claim. Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310 DIC, the Court of appeals for Veteran's claims has held that 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 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 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Id. The appellant was provided with a letter in December 2010 informing her of the reasons for the prior denial of her claim and the information necessary to reopen her previously disallowed claimed. She was specifically informed that the Veteran had not established service connection during his lifetime for pulmonary hemorrhage, pulmonary tuberculosis, or poor nutrition and that she would need to submit evidence showing that a disability that was incurred during or aggravated during service was the primary or contributory cause of the Veteran's death. The December 2010 letter also informed her of the information that she was needed from her and when VA would attempt to obtain on her behalf as well as the information required to establish an effective date. See Kent v. Nicholson, 20 Vet. App. 1 (2006); and Hupp v. Nicolson, 21 Vet. App. 342 (2007). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls upon party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the appellant suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Moreover, the Board notes that ample prior RO decisions have clearly explained the issues in this case to the appellant. Thus, VA has satisfied its duty to notify the appellant. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The information and evidence that has been associated with the claims file includes the Veteran's service medical records, service personnel records, relevant private treatment records, lay statements, the appellant's written statements, and a written brief submitted by her representative. A medical opinion was not obtained in conjunction with the petition to reopen the claim for service connection for the cause of the Veteran's death. VA has no specific duty to obtain a medical opinion with respect to the claim on appeal requiring the presentation of new and material evidence to reopen it because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (VA need not provide a medical examination or medical opinion until a claim is reopened). The appellant has not presented new and material evidence sufficient to reopen her previously denied claim. Therefore, VA does not have an obligation to obtain an opinion. Consequently, the Board finds that VA's duty to assist has been met. Analysis In a November 2009 Board decision, the Board denied the appellant's application to reopen a previously disallowed claim for service connection for the cause of the Veteran's death. The appellant's claim was originally denied in an unappealed August 1994 rating decision because the Veteran had no service connected disabilities, and no evidence had been presented linking the Veteran's causes of death to service. The Veteran's death certificate listed the cause of death as pulmonary hemorrhage as a result of pulmonary thrombosis, with poor nutrition listed as another significant condition. The evidence of record at the time of the 2009 Board decision included statements from the appellant expressing her concern that the Veteran's death was related to Agent Orange exposure. However, without determining whether the Veteran "set foot" in Vietnam, it was pointed out that none of the conditions listed on the Veteran's death certificate was a presumptive condition for which service connection could be granted based on herbicide exposure, and no medical evidence had been presented showing any other diagnosis related to herbicide exposure. It does not appear that the appellant perfected an appeal of this claim. Thus, the November 2009 Board decision is final. 38 U.S.C.A. § 7104 (West 2002). Therefore, this claim may not be reopened unless new and material evidence has been submitted. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 present a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is "new and material," the creditability of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). For the claim to be reopened, there need not be new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence is not required to reopen a previously denied claim if there has been an intervening change in the law that created a new basis of entitlement. Spencer v. Brown, 4 Vet. App. 283 (1993). An expansion of the list of diseases to which the presumption of service connection applies based on herbicide exposure constitutes an intervening liberalizing law that allows a claim to be re-adjudicated on the merits without consideration of new and material evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, as no medical evidence has been submitted which indicates that the Veteran had any disease which was added to the list of disabilities related to herbicide exposure, the Board does not find that the addition of new disabilities to that list to be sufficient, in this case, to reopen the appellant's claim. Unfortunately, in this claim, the appellant has submitted absolutely no new evidence whatsoever related to the cause of the Veteran's death. She only continues to maintain her position that the Veteran's death was related to service. No new medical evidence has been identified, or submitted, nor has any evidence been submitted which would in any way be material to the claim. The only evidence the appellant has submitted are her personal statements regarding her belief that the Veteran's death was related to service, which are duplicative of evidence already of record and not material to the reasons the appellant's claim was previously denied. Regarding the appellant's specific contentions that the Veteran's death is related to Agent Orange exposure, this lay evidence is not new because it is duplicative of lay evidence previously considered by Board. The Board concedes that the appellant is making a slightly different argument at this time. Specifically, the appellant is alleging that the Veteran's conditions listed as the cause of his death were secondary to lung cancer and bronchitis. Lung cancer is a presumptive condition for which service connection would be granted were it shown that the Veteran was exposed to herbicides in service. However, there is no medical evidence of record indicating that the Veteran, at any time, was diagnosed with lung cancer, and as noted above, no such diagnosis was listed on the Veteran's death certificate. There is simply no competent evidence that the Veteran had lung cancer or any other disability that is presumptively related to herbicide exposure. Thus, the appellant's statement that she believes the Veteran had lung cancer prior to his death, without any medical evidence of such a diagnosis, is not a sufficient basis on which to consider that statement material. The Board has also reviewed the recently submitted informal hearing presentation from the Appellant's representative, dated February 2015. It notes that the Veteran's widow has in her possession a medical article which indicates that Rhabdomyosarcoma of the chest wall is only present in patients with pulmonary tuberculosis. It is noted that while the representative cites to this article, neither the appellant nor her representative has submitted a copy of the entire text of the article. Nevertheless, the representative went on to state that article noted that Rhabdomyosarcoma is a soft tissue cancer, for which service connection could be granted on a presumptive basis as due to exposure to herbicides. Assuming that this representation is correct, regardless of the potential relationship between Rhabdomyosarcoma and pulmonary tuberculosis, as with the widow's prior lung cancer argument, there is simply no evidence that the Veteran was, at any time, diagnosed with any soft tissue sarcoma. Notably such diagnosis was not listed on the Veteran's death certificate and the appellant has not submitted any evidence other than her unsubstantiated assertion that the Veteran ever had soft tissue sarcoma. Thus, the statement of the representative is not material and a sufficient basis on which to reopen a claim. Further, lay assertions of medical causation cannot serve as a predicate to reopen a claim. Moray v. Brown, 5 Vet.App. 211, 214 (1993). As such, this evidence is not material as it does not present a reasonable possibility of substantiating the claim, as it is not competent evidence. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board points out that without any actual medical evidence having been presented to indicate that the Veteran was, at any time prior to his death, diagnosed with any cancer, and with the Veteran's death certificate clearly indicating that the cause of death was unrelated to cancer, any further statements from the Appellant, or her representative, simply suggesting that the Veteran may have had any kind of cancer, will not be a sufficient basis on which to reopen the Appellant's claim. Given the absence of receipt of any new and material evidence since the November 2009 Board decision, reopening the claim of entitlement to service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). ORDER New and material evidence has not been presented and the claim for service connection for the cause of the Veteran's death may not be reopened. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs