Citation Nr: 1800708	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  16-15 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for cause of death.

2.  Entitlement to service connection for the Veteran's cause of death.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Roya Bahrami, Counsel

INTRODUCTION

The Veteran served on active duty from April 1944 to May 1946. He died in August 1987. The appellant claims as his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania, which, in pertinent part, denied entitlement to service connection for the cause of the Veteran's death.

With regard to the characterization of the appeal, it is noted that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. § 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen a claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received, and given the favorable disposition of the request to reopen- the Board has characterized the appeal as encompassing both matters set forth on the title page.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for the Veteran's cause of death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDINGS OF FACT

1.  In an August 1987 rating decision, the RO denied service connection for cause of the Veteran's death; although notified of the denial in an August 1987 letter, the appellant did not initiate an appeal, and no new and material evidence was received within the one year appeal period.

2.  New evidence added to the record since the August 1987 rating decision relates to unestablished facts necessary to substantiate the claim for service connection for cause of the Veteran's death, and, when considered along with other evidence of record, provides a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The August 1987 rating decision in which the RO denied a claim for service connection for cause of the Veteran's death is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017).

2.   New and material evidence has been received to reopen the service connection claim for cause of the Veteran's death. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the appeal given the fully favorable nature of the Board's decision.

II.  Application to Reopen

In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, 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 evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000).

In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).
To establish service connection for the cause of a veteran's death, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.5,  3.312(a) (2017).  For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b).

In an August 1987 rating decision, the RO denied a claim for service connection for cause of the Veteran's death. The evidence then of record consisted of the Veteran's service treatment records (STRs), a prior Board decision denying service connection for heart condition, and post-service treatment records and VA examination reports. The RO denied the claim, finding no evidence to relate the cause of the Veteran's death to his military service.

Following the August 1987 rating decision, no further communication regarding the matter of entitlement to service connection for cause of the Veteran's death was received until January 2015, when VA received the appellant's claim for Dependency and Indemnity Compensation (DIC) by a Surviving Spouse (VA Form 21-534).

Therefore, the August 1987 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Notably, no pertinent exception to finality applies to the August 1987 rating decision. No new and material evidence pertinent to the matter of service connection for cause of the Veteran's death was received during the remainder of the appellate period following the August 1987 rating decision.

Following the appellant's January 2015 claim for DIC, the record contains several lay statements from the appellant regarding the relationship between his cardiac disability and service. Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). In light of the foregoing, the Board finds that the additional evidence received since the August 1987 denial is new and material within the meaning of 38 C.F.R. § 3.156 (a), warranting reopening of service connection for cause of the Veteran's death.


ORDER

The application to reopen the claim for service connection for cause of the Veteran's death is granted.


REMAND

The Veteran died in August 1987. The death certificate lists the immediate cause of death as cardiac arrest.  The Board notes that the Veteran was not service connected for any disabilities at the time of his death.

With regard to the Board's January 1978 denial of service connection for a heart disorder, "issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime." 38 C.F.R. § 20.1106 (2017); Sheets v. Nicholson, 20 Vet. App. 463, 466 (2006) ("VA treats a claim for DIC as an entirely new and original claim and adjudicates it without regard to any prior disposition of issues during a veteran's lifetime."); see also Hupp v. Nicholson, 21 Vet.App. 342, 352 (2007) ("[A] DIC claim is an original claim for benefits that is independent of any underlying service-connection claim lodged by a veteran or pending at the time of the veteran's death. Consequently, VA adjudicates a DIC claim without regard to any prior negative disposition of issues during a veteran's lifetime and decides that claim disregarding any prior determination on the credibility or probative value of any evidence submitted in connection with a veteran's previously denied or pending service-connection claim." (citations omitted)), rev'd on other grounds sub nom. Hupp v. Shinseki, 329 F. App'x 277 (Fed. Cir. 2009) (table).

The appellant essentially contends that the Veteran had a cardiac disability that caused his death from cardiac arrest and was due to stress and anxiety from his World War II service. The appellant stated that the Veteran internalized a lot of his emotions and did not have the benefit of support groups like Veterans have today. See November 2015 notice of disagreement.

The Federal Circuit has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death.  Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348.

The Board acknowledges that the Veteran was afforded VA examinations in connection with his previous claim for heart condition in October 1964, July 1967 and July 1974. However, the examiners found the Veteran's heart to be within normal limits, and thus did not provide etiological opinions. In light of this deficiency, and in light of the appellant's contentions, the Board finds that a medical opinion is warranted, as such an opinion is necessary to substantiate the claim and there is a reasonable possibility that such assistance would aid in substantiating the claim.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Arrange to obtain a medical opinion from an appropriate physician regarding the cause of the Veteran's death. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the medical professional. After a full review of the claims file, the medical professional should offer an opinion and answer the following questions:

A) Is it at least as likely as not (a 50 percent or great probability) that the Veteran had a heart disability prior to his death, and if so, that such disability contributed to his death from cardiac arrest?

B) If so, is it as least as likely as not that the Veteran's heart disability was etiologically related to service, to include stress and anxiety associated with serving in World War II?

2.  After any additional development is deemed necessary as a result of the actions taken in the preceding paragraphs, the issues of service connection for cause of the Veteran's death should be readjudicated. If any benefit sought on appeal is not granted, the appellant and her representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs