Citation Nr: 1510366 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 12-34 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Management Center THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cause of the Veteran's death. 2. Entitlement to service connection for cause of the Veteran's death. ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1944 to May 1946. His Service medals and decorations include the Combat Infantry Badge and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Milwaukee Pension Management Center (Pension Center), in Milwaukee, Wisconsin. FINDINGS OF FACT 1. In an unappealed December 2009 rating decision VA denied entitlement to service connection for cause of the Veteran's death. 2. The evidence received since the December 2009 rating decision relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran died in August 2008. The official cause of death was bladder cancer. 4. At the time of the Veteran's death, service connection was in effect for a cold injury to the bilateral lower extremity, degenerative joint disease of the right shoulder, and residuals of a gunshot wound to the right shoulder and chest, muscle group XXI, with pulmonary deficiencies. 5. The Veteran did not die as a result of a service-connected disability, nor did a service-connected disability cause or contribute substantially or materially to his death. CONCLUSIONS OF LAW 1. The December 2009 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.1103 (2014). 2. New and material evidence has been received since the December 2009 rating decision to reopen the claim of entitlement to service connection for cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In the case at hand, the requirements of 38 U.S.C.A. § 5103A have been met. There is no issue as to whether the appellant was provided the appropriate application form, or the completeness of her application. VA notified the appellant in June 2011 of the information and evidence needed to reopen, substantiate and complete her claim, to include notice of what part of that evidence was to be provided by her, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate her claim, and, as warranted by law, obtaining a VA opinion. The Board notes that in January 2013, there was a formal finding of unavailable VA treatment records from 1988 to July 1998 and the appellant was notified. In addition, a review of the records indicates the Veteran may have been in receipt of benefits from the Social Security Administration (SSA). The Board finds that a remand for SSA records is not necessary as there are no allegations which indicate that the Veteran was receiving SSA benefits for a disability that caused or contributed substantially to his death. As will be discussed below, the Veteran died from bladder cancer. The Board notes that because there is no evidence of an in-service incurrence of bladder cancer, there is no reasonable possibility that SSA records could aid in substantiating a claim for service connection for the Veteran's death. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Hence, VA has fulfilled its duty to notify and assist the appellant, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Petition to Reopen The appellant was denied entitlement to service connection for cause of the Veteran's death in a December 2009 rating decision. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since she did not perfect a timely appeal to that decision, the December 2009 decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302. The Board must now determine whether new and material evidence has been received to reopen the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). At the time of the final December 2009 rating decision, the evidence of record did not contain a medical opinion as to the cause of the Veteran's death, as it relates to his service-connected disabilities. Since the appellant's claim to reopen was presented in January 2011, the Veteran's claims file was submitted for an October 2012 VA medical opinion as to whether his death was related to a service-connected disability. Also, additional medical documents were added to the claims file. The newly received evidence constitutes new and material evidence sufficient to reopen the claim because it was not previously of record and it demonstrates a previously unestablished fact that raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In this regard, it must be noted that 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). Further, the United States Court of Appeals for the Federal Circuit has 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 claim, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Having received new and material evidence, the Board is reopening the previously denied claim of entitlement for service connection for cause of the Veteran's death. The RO reopened the matter and considered it on the merits. Thus there is no prejudice to the appellant in proceeding to the merits of the claim. Service Connection for the Cause of the Veteran's Death The appellant claims entitlement to service connection for the cause of the Veteran's death. Specifically, she contends the Veteran had problems with his lungs for 60 years and was using oxygen while on home hospice, before being transferred to a hospice facility. See August 2009 and June 2012 statements. Essentially, she argues that pulmonary deficiencies contributed to the Veteran's death. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic disorders, including bladder cancer, may be presumed to have been incurred in service where demonstrated to a compensable degree within one year following qualifying 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 the Veteran's death, the evidence must show that a disability incurred in or aggravated by service caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death; but, rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312. There are primary causes of death which, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have had a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ, and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). A review of the record discloses that the Veteran died in August 2008. According to the Certificate of Death, the immediate cause of the Veteran's death was bladder cancer. There was no other underlying or contributing cause listed. (The record does contain another death certificate which lists "dyspnea" as a contributing cause of death. This appears to have been written in subsequent to the official findings, is done with a different pen that is otherwise used on the document, and is considered of little probative value.) At the time of the Veteran's death, service connection was in effect for a cold injury to the bilateral lower extremity, degenerative joint disease of the right shoulder, and residuals of a gunshot wound to the right shoulder and chest, muscle group XXI, with pulmonary deficiencies. He also had a total disability evaluation based on his service-connected disabilities. A review of treatment records from the Veteran' period of hospice care indicates he was breathing "room air" until his expiration. In an August 2009 statement, R.H., an acquaintance to the appellant, argued the Veteran's death certificate is invalid because it was not signed by a state authorized individual. He then opined that although bladder cancer was the immediate cause of the Veteran's death, his pulmonary deficiency was the underlying cause that contributed to his immediate cause of death. To support his opinion, he submitted a copy of Arkansas County Coroner's Procedures Manual, excerpts from federal and state laws, as well as various medical literature addressing respiration and the dying process. He also included a summary of his biography, which the Board notes did not indicate any evidence of medical education. It is noted that the individual use signed the death certificate was contacted to alter the death certificate, and declined to do so. The Veteran's claims file was submitted to a VA physician in October 2012, for an opinion as to the cause of death. After reviewing the Veteran's claims file, to include his hospice treatment records, the examiner concluded the Veteran died from bladder cancer and not pulmonary deficiencies. The examiner acknowledged the Veteran had difficulty swallowing after being placed on palliative care but noted there was no indication of shortness of breath and he was not placed on oxygen therapy. After reviewing all of the evidence of record the Board assigns a high probative weight to the October 2012 VA medical opinion because it is based on a review of all of the evidence of record, it provides a rationale for the opinion, and it contains sound reasoning. See Prejean v. West, 13 Vet. App. 444, 448 (2000). While the Board acknowledges the appellant and R.H.'s statements as to the cause of the Veteran's death being attributed to his pulmonary deficiency, as laypersons, they are not competent to provide an opinion as to a complex medical matter, such as the cause of death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such the Board assigns a low probative value to their contentions. As for R.H.'s contention that the death certificate was improperly signed, the Board notes that a Hospice Registered Nurse is listed as an authorized individual on the form, thus the Board finds no indication that death certificated is invalid. Additionally, the Board has also considered whether the Veteran's final diagnosis of bladder cancer could have been service-connected. Service treatment records are completely negative for any findings or diagnoses of a bladder disease. Furthermore, a review of available VA treatment records indicates he was first diagnosed with bladder cancer in September 2007, over 60 years post-separation from service. The Board also notes the appellant does not contend this disease was related to service. Under these circumstances, entitlement to service connection for the cause of the Veteran's death must be denied because the preponderance of the most probative evidence is against the conclusion that a service-connected disability was responsible for the Veteran's death. Furthermore, the evidence does not show that bladder cancer was incurred or the result of his active military service. As such, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C.A. § 5107(b). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for cause of the Veteran's death, and to this extent only, the claim is granted. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs