Citation Nr: 1548937	
Decision Date: 11/19/15    Archive Date: 11/25/15

DOCKET NO.  10-16 165	)	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 the previously denied claim for service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran has active service from November 1941 to April 1942 and from December 1944 to February 1946.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran's death.  The Board remanded the claim in January 2015.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The claim for service connection for the cause of the Veteran's death was previously denied in a February 2005 Board decision.  The appellant did not appeal the decision and it is therefore final.
 
 2.  Evidence added to the record since the February 2005 denial is cumulative and redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the appellant's claim for service connection for the cause of the Veteran's death.






CONCLUSIONS OF LAW

1.  The February 2005 Board decision that denied service connection for the cause of the Veteran's death is final.  38 U.S.C.A. § 7104(b) (West 2014); 38. C.F.R. § 20.1100, 20.1104 (2015). 
 
 2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473   (2006).  Adequate notice for the appellant's claim was provided in a letter dated in July 2009. 

With regard to the duty to assist, the claims file contains the Veteran's service treatment records and available post-service medical records, and statements by the Veteran and appellant.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  A VA examination or opinion has not been obtained in this case, however, because the Board finds that new and material evidence has not been submitted, the duty to assist to obtain a medical examination has not been triggered. 

There has been substantial compliance with the January 2015 Board remand in that the appellant was sent the proper notice and a request to identify any relevant treatment records related to the claim.

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to his claim.  Thus, the VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

II.  Analysis

The RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death in an April 2003 rating decision and the Board denied the claim in a February 2005 decision.  The appellant appealed that decision to the United States Court of Appeals for Veterans Claims, and the court affirmed the Board's decision in September 2007.  The appellant did not further appeal that decision.  Thus, the February 2005 Board decision is final.  38 U.S.C.A. §§ 7103; 38 C.F.R. § 20.1100. 

A claim of entitlement to service connection may be reopened if new and material evidence is submitted.  Manio v. Derwinski, 1 Vet. App. 140 (1991).  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the 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).  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

In this case, at the time of the previous final denial, the appellant contended that the Veteran's cause of death was related to an infected shrapnel wound of the right leg that he sustained in service.  In support of that claim, she submitted medical records related to the Veteran's neuritis of the right leg, and an infected wound of the right leg.  Also of record was the Veteran's death certificate that stated the cause of his death as due to throat cancer.  The Board denied the claim, finding that the preponderance of the evidence was against a finding that the Veteran's throat cancer was caused or aggravated by his service.  He was not in receipt of service connection for any other disability at the time of his death.  The Court of Appeals for Veterans Claims affirmed that decision.

Since the last final denial, the appellant has submitted the same contentions, as well as an authorization to release medical records to the VA related to the Veteran's hypertension, cholesterol, and peptic ulcer disease.  In January 2015, the Board remanded the claim so that the appellant could send in new, more current authorizations to release the identified private records and to obtain those records.  However, following such notice in February 2015, the appellant did not respond or send in any additional records.  Accordingly, the Board must base its decision upon a review of the available record, and finds that new and material evidence has not been received.  The appellant's statements are redundant of the evidence previously considered.  No other new evidence has been received to demonstrate that the Veteran's cause of death was in any way related to his service.  In so finding, the Board notes that even the low threshold in Shade has not been met, as there is no new evidence to demonstrate the Veteran's cause of death was caused or aggravated by his service.  Accordingly, the claim must be denied.


ORDER

New and material evidence having not been received, the claim to reopen the previously denied claim for service connection for the cause of the Veteran's death is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs