Citation Nr: 1617514 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 12-17 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1972 to November 1976 and from June 1977 to September 1977. The Veteran died in September 1994. The appellant is the Veteran's mother. The Board previously remanded this matter in January 2015 to provide VCAA notice to the appellant and readjudicate the claim in a Supplemental Statement of the Case. The requested development has been completed, and no further action is necessary to comply with the Board's January 2015 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The appellant previously appointed a private attorney. In a June 2015 statement, the appellant indicated that she was no longer represented by that attorney. The appellant has not appointed a new representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death was previously denied in a January 1997 Board decision. 2. A claim to reopen service connection for the cause of the Veteran's death was received in January 2008. 3. The evidence received since the January 1997 Board decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The January 1997 Board decision that denied service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2015). 2. New and material evidence has not been received since that decision to reopen this previously denied claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156(a), 20.1101 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A February 2015 letter informed the appellant of the requirement of new and material evidence to reopen a previously denied claim and explained the evidence needed to substantiate a claim for service connection for the cause of death. The February 2015 letter advised the appellant what information and evidence must be submitted by the appellant and what evidence VA would obtain. This duty includes assisting the claimant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA also fulfilled its duty to assist the appellant by obtaining all relevant evidence in support of her claim. VA has obtained the service treatment records and VA medical records. The appellant has not identified additional outstanding pertinent treatment records that have not been obtained. The Board notes that a VA medical opinion was not obtained in connection with this appeal. However, as new and material evidence has not been received for this claim, a VA medical opinion is not required. See 38 U.S.C.A. § 5103A . See also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The Board finds that no further notice or assistance is required for a fair adjudication of the appellant's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis of Claim A January 1997 Board decision denied service connection for the cause of the Veteran's death. The Board found that there was no evidence of a relationship between the Veteran's active service and the conditions which caused the Veteran's death. A claim that has been disallowed by the Board may not be reopened except upon the submission of new and material evidence. 38 U.S.C.A. § 7104(b). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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 probability of substantiating the claim. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273 (1996). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the claimant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). 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. Id. During the Veteran's lifetime, service connection was established for acne. The evidence of record at the time of the final January 1997 Board decision included service treatment records and personnel records, the Veteran's death certificate, VA and private treatment records and the appellant's lay statements. The Veteran's death certificate shows that he died in September 1994. The immediate cause of death was lymphoma due to acquired immune deficiency syndrome (AIDS). Service treatment records dated from July 1972 to August 1976 do not reflect treatment diagnoses or treatment of lymphoma or acquired immune deficiency syndrome. Post-service treatment records that were previously of record reflect diagnoses and treatment of AIDS-related lymphoma. A claim to reopen service connection for the cause of the Veteran's death was received in February 2010. The evidence received since the Board decision includes letters from the physician who signed the Veteran's death certificate, a letter from the Los Angeles County medical examiner, medical records for the Veteran, medical records for the appellant and the appellant's written statements. The appellant submitted copies of letters which indicate that she requested an amended death certificate. A January 2013 letter to the appellant from the Los Angeles coroner reflects that the appellant requested correction of the Veteran's death certificate. The appellant was advised that correction of a death certificate is not under the purview of the coroner. She was advised to contact the physician who signed the death certificate. A letter submitted by the appellant reflects that she contacted the physician who signed the Veteran's death certificate regarding an amendment to the death certificate. In a January 2013 letter to the appellant, Dr. P.K. advised the appellant that he could not amend the death certificate in the manner requested. Dr. P.K. noted that there was no basis to modify the death certificate based on documents provided by the appellant. The appellant has submitted numerous written statements in support of the claim to reopen. The appellant has asserted that the Veteran's death is related to Agent Orange exposure. See July 2012 statement. The appellant's contentions regarding Agent Orange exposure are duplicative of evidence that was previously of record. The Board previously considered the appellant's contentions of Agent Orange exposure and concluded that there was no evidence of exposure to herbicides. The appellant has submitted written statements alleging that the Veteran's death was related to service-connected acne. The appellant's statements regarding a causal relationship between the Veteran's service-connected acne and his death are redundant of statements that were previously considered. The appellant has not provided competent medical evidence of a relationship between the Veteran's acne and the conditions that caused his death. The appellant is not competent to state that the Veteran's death is related to his service-connected acne. An opinion as to whether the Veteran's acne contributed to his death must be made by a person with appropriate medical expertise for such an opinion to be considered competent medical evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Because the appellant, as a lay person, has not been shown to have the appropriate medical training or expertise, her opinion that the Veteran's death is related to his service-connected acne does not suffice to reopen this claim. The appellant has submitted statements which reflect her assertion that the Veteran's illness was related to a sexual assault in service. The appellant presented those assertions in an August 1995 statement that was of record at the time of the prior Board decision. Thus, the evidence is redundant of the evidence that was previously of record. The appellant submitted copies of medical records from Cedars Sinai Hospital, dated in 1994. The appellant submitted a report of a March 1993 VA examination. The records from Cedars Sinai Hospital and March 1993 VA examination were previously of record and were considered in conjunction with the January 1997 Board decision. Thus, the records are redundant of evidence previously of record at the time of the prior denial. The evidence received since the prior Board decision includes the appellant's treatment records. The appellant's treatment records are not material to the claim, as they do not relate to the issue of whether the Veteran's death was related to a service-connected disability. In conclusion, the evidence submitted since the January 1997 Board decision that denied service connection for the cause of the Veteran's death is not new and material. The evidence does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating this claim. The prior denial is final, and the claim for service connection for the cause of the Veteran's death is not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the claim may not be reopened. ORDER New and material evidence not having been received, the petition to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs