Citation Nr: 1806059 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-18 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1963 to March 1965. He died in 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In July 2017, the appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board previously denied entitlement to service connection for cause of death in May 2010. FINDINGS OF FACT 1. In a May 2012 rating decision, the RO declined to reopen the service connection claim for the Veteran's cause of death. 2. Evidence received since the May 2010 Board decision is either cumulative and redundant, or does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the claim for service connection for cause of death are not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. VA's duty to notify was satisfied by a letter sent to the Veteran in March 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159(b); 3.326(a). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, along with VA and private medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). In cases involving a petition to reopen a previously denied claim, the duty to assist does not require a medical examination or opinion unless new and material evidence has been secured with respect to that claim. 38 C.F.R. 3.159(c)(4)(iii). Because new and material evidence has not been submitted to reopen the issue of service connection for cause of death, a VA opinion is not required. New and Material Evidence A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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 possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form 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). During service, the Veteran was a veterinary assistant, and worked in the Forest Glen Annex of Walter Reed Army Hospital. The Veteran's seborrheic dermatitis was service connected, effective October 2004. The Veteran's death certificate states his immediate cause of death was probable myocardial infarction due to hypertension. In May 2007, the RO denied the appellant's claim for service connection for cause of death. The appellant initiated a timely appeal and in May 2010, the Board's decision to deny service connection for cause of death became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. In August 2011, the appellant petitioned to reopen the claim for entitlement to service connection for the Veteran's cause of death. In a May 2012 rating decision, the RO denied reopening because the appellant did not provide evidence that was new and material. The Veteran filed a timely notice of disagreement (NOD), and perfected the appeal following the April 2014 statement of the case (SOC). The appellant testified at the hearing and submitted statements in August 2011, March 2013 and February 2017 alleging different theories regarding the Veteran's cause of death. After reviewing the evidence submitted since the final May 2010 Board decision, the Board finds new and material evidence has not been received to reopen the claim for service connection for cause of death. The appellant referenced an in-service incident in June 1964 involving the Veteran being bitten by a dog that died of convulsions and was sent to Japan for tests. This evidence is not new, as it was already included in service treatment records in the file. Records show the Veteran was given a tetanus shot and his wound was cleaned. There is no medical evidence in the record that connects the dog bite to the Veteran's death. The appellant alleged the Veteran's death was caused by Parkinson's disease and heart disease, both of which he developed due to exposure to herbicide agents while stationed in Korea. The appellant also stated the Veteran's skin condition contributed to his Parkinson's disease. She alleged that the Veteran was misdiagnosed with mumps during service and, instead, was likely experiencing rheumatic fever or rheumatic heart disease. At the hearing, the appellant alleged that the Veteran's exposure to toxins while working at Walter Reed caused brain damage that led to the Veteran developing Parkinson's disease. In support of her allegations, the appellant submitted Medline Plus articles from the internet. Medical records establish that the Veteran had Parkinson's disease, but it was not a service connected disability, nor has evidence been received suggestive of such a connection. Service treatment records from April 1963 note that the Veteran possibly had mumps. However, at no point during or after service was the Veteran assessed to have rheumatic fever or rheumatic heart disease. The medical record also fails to verify a connection between the Veteran's service-connected skin condition and Parkinson's disease. As a lay person, the appellant is not competent to establish the complex medical issue regarding the etiology of the Veteran's Parkinson's disease. see Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's service dates are April 1963 to March 1965. In order to consider whether a veteran was exposed to an herbicide agent while stationed in the Korean DMZ, a veteran would have had to serve between September 1, 1967 and August 31, 1971 in a specific location. See 38 C.F.R. 3.814. The Veteran's time in service does not meet the timeframe requirements set forth in 38 C.F.R. 3.814. The appellant's submission of Medline Plus articles from the internet are considered new, but they are not material. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, articles and treatises tend to be general in nature and do not relate to the specific facts in a given veteran's claim. The articles submitted discuss secondary Parkinson's disease, toxins, nummular eczema, and rheumatic fever. These articles are not accompanied by an opinion from a medical professional, which is necessary to establish a connection between the various health disorders the appellant believes contributed to and/or caused the Veteran's death. At the hearing and in a February 2017 statement, the appellant noted that myocardial infarction due to hypertension was listed as the "probable" cause of death rather than the actual cause. The Veteran had a history of hypertension and cardiovascular problems that manifested more than one year after service separation, and he was not service connected for these conditions. At the hearing, the appellant's representative requested that the record remain open for 60 days in order to submit medical evidence to support these claims, but no additional medical evidence was submitted. Thus, there is no new evidence in the file to support the appellant's claim that the Veteran's cause of death was not due to myocardial infarction. Therefore, the Board finds that the newly received evidence is either cumulative and redundant of the evidence of record at the time of the prior decision, or it does not raise a reasonable possibility of substantiating the appellant's claim. Consequently, new and material evidence has not been received to reopen the claim for service connection for cause of death, and the petition to reopen is denied. ORDER The petition to reopen the claim for service connection for cause of death is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs