Citation Nr: 18140337 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-50 445 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 July 2012 rating decision is the last final decision that denied service connection for cause of death (COD). 2. The evidence received since the final July 2012 rating decision is not new and material, and the service connection claim for COD is not reopened. CONCLUSIONS OF LAW 1. The July 2012 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 July 2012 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 November 1969 and served until December 1971. The Appellant was previously represented by J. Michael Woods. However, in December 2016, he filed a motion to withdraw as her representative, which was granted by the Board in May 2017; and the letter granting the motion was also sent to the Appellant. In May 2018, approximately a year and a half after the claim was certified and approximately a year after withdrawal of representation, VA received a VA Form 21-22 designating the American Legion as the Appellant’s representative. As this form was received more than 90 days after the appeal was certified to the Board and was not accompanied by a motion for change of representation, the American Legion’s attempt to represent the Appellant on this appeal is untimely and therefore not accepted. The Board finds that the Appellant is considered to be unrepresented in this matter. 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 submitted 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 February 2005. At that time, the death certificate reflected that the Veteran died in January 2005 due to a ruptured thoracic aortic aneurysm, with multiple cerebrovascular accidents listed as another significant condition. The RO denied service connection in May 2005. The Appellant did not appeal this rating decision, nor was new and material evidence received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). The RO again denied COD in March 2011, June 2011, and July 2012 rating decisions. Although the Appellant filed a June 2011 NOD, she did not submit a timely substantive appeal after the March 2013 Statement of the Case (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 November 2013, the Appellant again petitioned to reopen the previously denied COD claim. In a March 2014 rating decision, and subsequently in an August 2018 rating decision, the RO declined to reopen the claim, finding that new and material evidence had not been received. The Appellant 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 July 2012 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 July 2012, which denied service connection for COD, is cumulative and, when considered with evidence earlier of record, does not indicate that the Veteran’s ruptured thoracic aortic aneurysm was related to service. In this regard, evidence received subsequent to the last final decision includes VA treatment records reflecting the Veteran’s numerous heart procedures, symptoms, and conditions. However, the additionally received evidence is not new as they are duplicates of previously received evidence. The Board recognizes that the Veteran was subsequently service-connected for coronary artery disease (CAD) status post coronary artery bypass graft. However, a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the sole basis for reopening the claim in the absence of new and material evidence. Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008). However, while a new theory of entitlement for the same disease or injury cannot serve as the basis of a new claim, if the evidence supporting the new theory constitutes new and material evidence, the claim may be reopened. Id. In this case, the RO requested a VA opinion as to any likely relationship between the Veteran’s ruptured thoracic aortic aneurysm and his CAD. In this regard, a June 2012 VA examiner reviewed the claims file and determined that there is no nexus between the Veteran’s CAD and his fatal ruptured thoracic aortic aneurysm, and this opinion was considered by the RO in the July 2012 rating decision. Even if the opinion had not yet been considered by the RO, the Board notes that evidence that is unfavorable to the Veteran's claim cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). Additionally, none of the evidence received since the last final decision relates the Veteran’s COD to his service in Vietnam. (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