Citation Nr: 1800266 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-08 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen the issue of entitlement to recognition as the Veteran's dependent child for VA death benefits purposes. 2. Whether new and material evidence has been received to reopen a claim of entitlement to accrued benefits. 3. Entitlement to special allowance benefits under 38 U.S.C. § 1312, the Restored Entitlement Program for Survivors (REPS). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from January 1940 to September 1945. He passed away in November 1979, and the appellant is his son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction subsequently was transferred to the Regional Office (RO) in Oakland, California, for the purpose of affording the appellant a requested hearing. In August 2017, the appellant testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that, regardless of the determination reached by the RO in April 2013 with respect to whether new and material evidence has been received, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of previously denied claims. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). In a July 2014 rating decision, the RO denied the appellant's claim of entitlement to special allowance benefits under 38 U.S.C. § 1312, the Restored Entitlement Program for Survivors (REPS). In October 2014, the appellant submitted a notice of disagreement (NOD) with that decision. See 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999)). Accordingly, that issue is also on appeal, is addressed in the REMAND portion of the decision below, and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In May 2006, the RO denied the appellant's initial claim for death benefits. In connection with that decision, and as relevant here, it determined that the appellant had not submitted evidence showing that he was incapable of self-support prior to age 18. Regarding accrued benefits, the RO explained that the Veteran was not owed any money by VA at the time of his death. 2. The appellant appealed the May 2006 decision, submitting additional evidence and identifying other additional evidence relevant to his assertion that he was permanently incapable of self-support prior to the age of 18. The RO considered that evidence in an October 2007 statement of the case (SOC) that continued the denial of his claim, and the appellant did not timely perfect an appeal thereafter. 3. In July 2010, the appellant filed another death benefits claim. In July 2011, the RO denied that claim, noting in part that the appellant had not submitted the evidence necessary to establish that he was helpless. It reiterated the information that was required to establish that he was incapable of self-support prior to age 18. 4. The appellant did not appeal the July 2011 decision, and no new and material evidence was submitted during the appeal period. 5. The evidence added to the record since the July 2011 final denial of entitlement to recognition as the Veteran's dependent child for VA death benefits purposes is cumulative and redundant of evidence already of record. 6. The evidence added to the record since the May 2006 denial of entitlement to accrued benefits does not raise a reasonable possibility of substantiating the appellant's claim of entitlement to accrued benefits. CONCLUSIONS OF LAW 1. The May 2006 and July 2011 decisions issued by the RO are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has not been submitted to reopen the issue of entitlement to recognition as the Veteran's dependent child for VA death benefits purposes. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has not been submitted to reopen the claim of entitlement to accrued benefits. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, if a claim has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. VA regulation defines "new and material evidence" as follows: "New evidence" means evidence not previously submitted to agency decisionmakers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In order to warrant reopening, the new evidence must 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. Id.; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that the threshold to reopen a claim is low). Additionally, for the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following review of the record, the Board finds that new and material evidence has not been submitted to reopen the appellant's previously denied claims of entitlement to recognition as the Veteran's dependent child for VA death benefits purposes and entitlement to accrued benefits. Turning first to the appellant's claim of entitlement to recognition as the Veteran's dependent child, the only additional evidence he has supplied since July 2011 to support that claim (which the Board notes requires a showing that he was permanently incapable of self-support prior to the age of 18), consists of his lay statements and hearing testimony. His lay statements have essentially asserted that he has been "physically disabled permanently lifelong." See September 2015 correspondence; see also May 2013 Notice of Disagreement. They have also included his reports that he has been receiving Social Security Administration (SSA) disability benefits since 1985 (when he would have been approximately 25 years old, see Baptismal Certificate received in December 1972), that he weighed less than three pounds at birth, that he has been underweight throughout his life, and that he has suffered from various debilitating physical conditions, including a deficient immune system, genetic mutations related to his immune system, vision and hearing problems, and pain in multiple locations throughout his body. See March 2014 VA Form 9. During his Board hearing, he testified that he was born with a "genetic primary immune deficiency," that he had been weak, sick with ailments such as chronic severe colds and fevers, and underweight since birth, that he tired easily, and that he had chronic fatigue and pain. He also testified regarding the daily activities he was capable of performing, and the extent to which he had to "take it easy" on a daily basis due to his debilitating physical health conditions. For example, he reported that, depending on how well he felt on a given day, he would wake up, listen to the radio or watch TV, gauge how he was feeling, "grab [himself] a bite to eat close by," and try to rest as much as possible during the day. Unfortunately, the foregoing evidence is not "new," because it is entirely cumulative and redundant of evidence the appellant submitted prior to the most recent final denial of his claim in July 2011. See Shade, 24 Vet. App. at 117 (citing Struck v. Brown, 9 Vet. App. 145 (1996), Blackburn v. Brown, 8 Vet. App. 97 (1995), and Cox v. Brown, 5 Vet. App. 95 (1995), when noting that the noncumulative requirement of 38 C.F.R. § 3.156(a) has been "well established"). For example, in a December 2005 case summary completed by the SSA following the appellant's September 2005 application for disability benefits (received by VA in 2007), the appellant's alleged impairments were described as chronic immune deficiency, stomach disorder, chronic pain, back pain, weakness, chronic fatigue syndrome, breathing problems/asthma, immune deficiency, limited mobility, migraines, stomach ulcers, and memory loss. In an October 2005 SSA Function Report, the appellant reported daily activities that included reading, writing, studying, listening to music or talk radio, and going shopping or to the doctor, all while in "chronic pain due to chronic health conditions." He also reported that he could perform his hobbies and interests (such as reading, writing, and relaxing) "fine if resting, motionless and still." In December 2005 correspondence, the appellant reported that he had been "physically disabled since birth," with a nonfunctioning or improperly functioning immune system, low weight, headaches, and back and leg pain. He also noted that he had been receiving SSA disability benefits since 1985. See December 2005 VA 21-8416. In his notice of disagreement with the RO's initial denial of this claim in May 2006, the appellant reported that he had a low birth weight and low weight throughout life, that he often suffered from weakness, anemia, chronic cold and flu symptoms, including fevers, before the age of 18, and that those symptoms rendered him incapable of self-support. See May 2006 Correspondence. In correspondence received by VA in May 2008, the appellant stated that he was "chronically severely ill" and was under a doctor's care for fibromyalgia, chronic fatigue syndrome, and "primary immunodeficiency." He also reported that he had been diagnosed with Epstein-Barr virus and that, more recently, the same physician who was treating him for chronic fatigue syndrome and fibromyalgia had explained that he had a primary immunodeficiency condition that prevented him from "fighting anything off." The appellant noted childhood treatment he had received at Children's Memorial Hospital and asserted that the providers had omitted certain facts from the records (which were obtained by the RO prior to issuance of the 2007 SOC). Additionally, he asserted that prior findings by psychiatrists regarding mental health diagnoses (discussed by the RO in the 2007 SOC) were false. He reiterated that his statements established his "permanent incapacity toward self-support by reason of physical many and varied defects prior to and long after the age of 18 years." See May 2008 Correspondence. In short, the additional evidence received since the prior final denial of the appellant's claim of entitlement to recognition as the Veteran's dependent child merely reiterates, down to the conditions described, his continued assertion that he has various physical ailments that have rendered him permanently disabled since birth. The Board is sympathetic to his sincere belief that he is entitled to recognition as a dependent child due to the conditions he has described, but his statements are entirely cumulative of statements that were of record when the RO issued its July 2011 decision. In other words, they are not new evidence. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. As the evidence submitted since the prior final decision is not both new and material, reopening of the appellant's claim of entitlement to recognition as the Veteran's dependent child for VA death benefits purposes is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Turning to entitlement to accrued benefits, as was noted in the findings of fact, above, the RO denied that claim in 2006 because the Veteran was not owed any money by VA at the time of his death. Unfortunately, evidence added to the record since then does not raise a reasonable possibility of substantiating that claim. For purposes of clarifying this issue for the appellant, the Board notes that, to support a claim for accrued benefits, the Veteran must have had a claim for benefits pending at the time of his death or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a) (2012); Jones v. West, 136 F.3d 1296, 1299 (1998). Although the appellant identified entitlement to accrued benefits as one of the issues currently pending on appeal, he has not submitted new or material evidence to suggest, nor has he in fact asserted at any point, that claims were pending at the time of the Veteran's death or that VA monetary benefits were otherwise due under existing decisions but unpaid at that time. Thus, new and material evidence with respect to the issue of entitlement to accrued benefits has also not been received, and that claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has not been received to reopen the claim of entitlement to recognition as the Veteran's dependent child for VA death benefits purposes; the appellant's request to reopen that claim is denied. New and material evidence has not been received to reopen the claim of entitlement to accrued benefits; the appellant's request to reopen that claim is denied. REMAND As was noted in the Introduction to this decision, in October 2014, the appellant filed an NOD with the RO's July 2014 denial of entitlement to special allowance benefits under 38 U.S.C. § 1312, the Restored Entitlement Program for Survivors (REPS). As the RO has not yet issued a statement of the case (SOC) in response to that NOD, remand for issuance of an SOC is required. See 38 C.F.R. § 19.9(c) (2017). The appellant will then have the opportunity to perfect an appeal as to that issue if he so chooses. Accordingly, the case is REMANDED for the following action: Issue an SOC addressing entitlement to special allowance benefits under 38 U.S.C. § 1312, the Restored Entitlement Program for Survivors (REPS). The appellant is hereby notified that, following the receipt of the SOC concerning that issue, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, that issue should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs