Citation Nr: 18140054 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-26 447 DATE: October 2, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. An unappealed April 2011 rating decision is the last final decision that denied service connection for cause of death (COD). 2. The evidence received since the final April 2011 rating decision is not new and material, and the service connection claim for COD is not reopened. CONCLUSIONS OF LAW 1. The April 2011 rating decision denying service connection for COD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103. 2. The evidence received since the April 2011 rating decision is not new and material, and the criteria to reopen the service connection claim for COD are not met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was inducted into service in March 1945 and served until November 1945. The Appellant is the surviving spouse. The Appellant was scheduled for a personal hearing before a Veterans Law Judge; however, prior to the scheduled June 2018 date, the Appellant withdrew her hearing request. Petition to Reopen Previously Denied Service Connection Claim Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. It is the Board’s jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). When determining whether the claim should be reopened, the credibility of the newly received evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a “low threshold” standard is applied. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for the cause of the Veteran’s death The Board will summarize the relevant evidence. The Appellant filed an original service connection claim for COD in September 1995. At that time, the death certificate reflected that the Veteran died in July 1995 due to metastatic adenocarcinoma. Service treatment records (STRs) reflected that the Veteran had a malignant tumor found in the left testicle during service. The RO denied service connection in October 1995 and again in December 1995, finding that there was no nexus between the Veteran’s in-service left testicle disorder and the fatal metastatic adenocarcinoma. The Appellant appealed this decision, which was affirmed by the Board in a November 1997 decision. In March 2001, the Appellant petitioned to reopen the previously denied claim, which was again denied by the RO in a March 2003 rating decision. In response to another petition to reopen, the RO, in a February 2005 letter, advised the Appellant that she needed to submit new and material evidence in order to reopen the claim. No new and material evidence was received, and the RO again denied the claim in an April 2005 letter. The Appellant appealed the decision, and the Board denied the claim in a September 2007 decision. The Appellant did not timely appeal the September 2007 Board decision to the Court of Appeals for Veterans Claims; that decision therefore became final and subsumed the April 2005 denial on the same issue. In July 2008, the Appellant again petitioned to reopen the claim, which was denied by the RO in a March 2009 rating decision. Although the Appellant filed a March 2009 NOD, she did not submit a timely substantive appeal after the November 2009 Statement of the Case (SOC) was issued. In December 2010, the Appellant again petitioned to reopen the claim. The RO again denied the COD claim in April 2011, finding no new and new material evidence. Although the Appellant filed a July 2011 NOD, she did not submit a timely substantive appeal after the August 2013 SOC was issued. Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Thereafter, in May 2014, the Appellant again petitioned to reopen the previously denied COD claim. In a July 2014 rating decision, the RO declined to reopen the claim, finding that new and material evidence had not been received. The Appellant subsequently submitted a timely VA Form 9 after the issuance of the SOC, and the instant appeal ensued. Accordingly, based on the procedural history as reflected above, the April 2011 rating decision is the last final decision denying the Appellant’s COD claim. After a review of all the evidence, the Board finds that the evidence received subsequent to the last final decision dated in April 2011, which denied service connection for COD, is cumulative and, when considered with evidence earlier of record, does not indicate that the Veteran’s fatal metastatic adenocarcinoma was related to service. In this regard, evidence received subsequent to the last final decision includes medical evidence; STRs; congressional inquiries; a copy of an Order from Court of Appeals for Veterans Claims; a transcript of the Appellant’s decision review officer (DRO) hearing in August 2013; and her July 2017 statement in which she contended that the Veteran’s testicular disorder was aggravated by basic training, that the testicular cancer was in remission and not “cured,” and that malignancies could travel from one part of the body to another. STRs and VA medical evidence pertinent to the Veteran were added to the file after the last final decision. However, that evidence consists of duplicate copies of evidence already received and considered by VA and, therefore, not “new.” The additionally received congressional inquiries and Court order are new, but are not material as they do not reflect a relationship between the Veteran’s fatal metastatic adenocarcinoma and service. These documents reflect the Appellant’s intent to further pursue this claim on appeal, but her statements are essentially duplicates of evidence already considered regarding her claim for DIC benefits. The additionally received lay evidence, to include the DRO hearing testimony, was received after the last final denial. However, the Appellant’s argument that the Veteran’s metastatic adenocarcinoma was related to his in-service malignant teratoma of the left testicle is duplicative of evidence addressed previously by both the RO and the Board. Unfortunately, she, as a layperson. is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). (Continued on the next page)   The Board concludes that the additional evidence received since the final decision does not constitute new and material evidence upon which the claim may be reopened. For these reasons, the Board finds that new and material evidence has not been received to reopen service connection for COD, and the claim is not reopened. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee