Citation Nr: 18147130 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-35 272A DATE: November 2, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for cause of death. FINDINGS OF FACT 1. By a July 2002 Board of Veterans’ Appeals (Board) decision, the appellant’s claim of entitlement to service connection for cause of death was denied. 2. Evidence received since the July 2002 Board decision, by itself, or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2002 Board decision denying service connection for cause of death is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for cause of death. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1969 to April 1972. 1. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Compensation may be awarded for the cause of a veteran's death where the evidence shows that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). A service-connected disability will be considered as the contributory cause of death when that disability contributed substantially or materially to death, combined to cause death, or aided assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, with debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c). To be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). In the July 2002 Board decision, service connection for cause of death was denied based on the finding that there was no persuasive credible evidence linking the Veteran’s service connected posttraumatic stress disorder (PTSD) with his murder by an unknown person. At the time of that decision the pertinent evidence of record included the Veteran’s service personnel records, post-service medical records, death certificate, post-mortem examiner’s report, police report, appellant’s statements, and the opinion of private psychiatrist, Dr. E.W.F. The evidence received since the July 2002 Board decision includes statements from the appellant, an intake form from a PTSD program, and marriage and divorce certificates. The Board finds the newly received evidence is redundant of the evidence of record at the time of the July 2002 Board decision. The appellant’s statements are repetitive of prior statements and the PTSD intake form confirms that the Veteran suffered from PTSD, which is not an unsubstantiated fact. Therefore, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As there is no new and material evidence to reopen the claim of entitlement to service connection for cause of death, the petition to reopen is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel