Citation Nr: 1804604 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-06 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for the Veteran's cause of death. 2. Entitlement to burial benefits on the basis of service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1944 to April 1946. The Veteran died in December 2011. The appellant claims as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 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) (2012). FINDINGS OF FACT 1. The claim for entitlement to service connection for the Veteran's cause of death was last denied in a final December 2014 Board decision. 2. Additional evidence received since the December 2014 Board decision is new to the claims file, but is merely redundant of the evidence previously of record. 3. With regard to burial benefits based on service-connected death, the Veteran did not die as a result of a service-connected disability or disabilities, and on the date VA received notice of the Veteran's death, it had evidence that the Veteran did not die of a service-connected disability. CONCLUSIONS OF LAW 1. The December 2014 Board decision, which denied entitlement to service connection for the Veteran's cause of death, is final. 38 U.S.C.A. §§ 511, 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has not been submitted to reopen the claim for entitlement to service connection for the Veteran's cause of death. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for payment of burial benefits are not satisfied. 38 U.S.C. § 2307 (2012); 38 C.F.R. § 3.1704 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Appellant petitions to reopen the previously denied claim of entitlement to service connection for the Veteran's cause of death. For the following reasons, the Board finds that reopening is not warranted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO). Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial- regardless of whether the denial was on the merits or on procedural grounds-to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). In order to warrant reopening, the new evidence must neither be 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 Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, 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, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board denied this claim in a December 2014 decision, and that decision is final. See 38 U.S.C. § 511(a), 7103, 7104(a); 38 C.F.R. § 20.1100 (providing that, with certain exceptions not applicable here, all Board decisions are final on the date stamped on the face of the decision). As per the December 2014 Board Decision, entitlement to service connection for the Veteran's cause of death was denied, as the Veteran's service-connected disabilities did not causally or proximately attribute to his death. The Veteran's death certificate listed the Veteran's cause of death as end stage dementia, with diabetes mellitus, arterial hypertensia, and hypercholesterolemia as contributing conditions. See Death Certificate. The July 2014 examiner determined that the Veteran's end stage dementia was the primary cause of his death and that the other maladies were listed as the Veteran's other significant medical conditions. The Board determined that there was no competent medical evidence relating the Veteran's dementia to service. See December 2014 Board Decision. At the time of his death, the Veteran was service-connected for rheumatoid arthritis at 100 percent; chronic peptic ulcer disease asspoiated with rheumatoid arthritis at 10 percent; and residuals of hepatitis evaluated at 0 percent. See September 2003 Rating Code Sheet. The VA treatment records did not contain any documentation showing that rheumatoid arthritis, peptic ulcer disease, or hepatitis residuals contributed to the Veteran's poor prognosis and ultimate demise during his terminal hospitalization. See November 2011 VA Hospice Note; December 2014 Board Decision. At the time of the December 2014 Board decision, the relevant evidence consisted of a VA medical opinion, VA treatment records, service treatment records, and statements by the Appellant asserting that the Veteran's service-connected disabilities contributed to his death. While the Appellant submitted a new VA 21-534 form which allows the Board to address the matter of reopening her claim for entitlement to service connection for the Veteran's cause of death, the Appellant has not submitted or identified any relevant evidence which was not of record at the time of the prior final denial of this claim. While the VA 21-534 form is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds that new and material evidence has not been submitted to reopen the claim for entitlement to service connection for the Veteran's cause of death. The petition to reopen is denied. See 38 C.F.R. § 3.156(a). II. Burial Benefits Burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a Veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302 (2012); 38 C.F.R. § 3.1700 (2017). If a Veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 U.S.C. § 2307; 38 C.F.R. § 3.1704 (b). A burial allowance is payable under this section for a Veteran who died as a result of a service-connected disability or disabilities. VA will presume, unless it has evidence to the contrary on the date it receives notice of the Veteran's death, that a Veteran died as a result of a service-connected disability or disabilities if, at the date of death, the Veteran was rated totally disabled for a service-connected disability or disabilities, excluding a total disability rating based on individual unemployability. Burial benefits are also allowable if a Veteran's death is not service-connected, provided that particular eligibility requirements are met, and the claim is timely. 38 U.S.C. § 2302 (a) (2012); 38 C.F.R. §§ 3.1703, 3.1705. In this case, the Veteran was in receipt of a 100 percent rating for rheumatoid arthritis at the time of his death. Accordingly, in May 2013, burial benefits based on nonservice-connected death, including funeral costs and transportation expenses, were paid to the Appellant under the provisions of the pertinent regulation at the time, 38 C.F.R. § 3.1600 (b) (now 38 C.F.R. § 3.1705). The Appellant now seeks burial benefits based on service-connected death. However, as discussed above, a service-connected disability was not found to have contributed to the Veteran's death. Thus, burial benefits are not warranted under the provisions of 38 C.F.R. § 3.1704. Although the Veteran was rated totally disabled for service-connected rheumatoid arthritis, it may not be presumed that the Veteran died as a result of this disability. On January 10, 2012, the VA received the Appellant's claims for DIC benefits and burial benefits, along with the Veteran's Certificate of Death, which listed end stage dementia, diabetes mellitus, arterial hypertensia, and hypercholesterolemia as the causes of death. This constitutes "evidence to the contrary" that the Veteran died of service-connected disabilities, and rebuts the presumption set forth in 38 C.F.R. § 3.1704. The Board sincerely regrets that it cannot render a favorable decision on this matter; however, as discussed above, the applicable laws and regulations simply do not provide for the establishment of the Appellant's entitlement to service-connected burial benefits. As this claim must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Burial benefits on the basis of service connection for the cause of the Veteran's death are denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs