Citation Nr: 18148244 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-31 109 DATE: November 7, 2018 ORDER New and material evidence sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death has not been submitted; the appeal is denied. FINDINGS OF FACT 1. A March 2013 rating decision denied the application to reopen a claim of entitlement to service connection for the cause of the Veteran’s death; the Veteran’s surviving spouse was notified of her appellate rights, but did not complete an appeal of this decision or submit new and material evidence within one year of the rating decision. 2. Evidence received since the March 2013 rating decision is cumulative of the evidence of record at the time of the previous denial and does not raise a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran’s death. CONCLUSIONS OF LAW 1. The March 2013 rating decision that denied the application to reopen a claim of service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105(c). 2. Evidence received since the March 2013 rating decision in connection with the claim of entitlement to service connection for the cause of the Veteran’s death is not new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service the United States Navy from October 1960 to July 1980. This matter is on appeal from a November 2014 rating decision. The Veteran died in December 2003. The Appellant is claiming as the Veteran’s surviving spouse. In February 2016, the Appellant testified before the undersigned Veterans Law Judge at a hearing. A hearing transcript has been associated with the record. 1. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The Veteran died on December [redacted], 2003, due to multiorgan system failure status post emergency exploratory laparotomy and ulcer surgery, acute renal failure, massive duodenal ulcer bleeding, liver cirrhosis, pneumonia, and chronic obstructive pulmonary disease. The Veteran was treated at a private medical facility at the time of his death. He was not service-connected for any disabilities at the time of his death. The Agency of Original Jurisdiction most recently denied an application to reopen a claim of service connection for the cause of the Veteran’s death in a March 2013 rating decision, based on a finding that the cause of the Veteran’s death was not related to his periods of active service. The Appellant was notified of this decision and of her procedural and appellate rights. She filed a timely Notice of Disagreement in May 2013. The Agency of Original Jurisdiction issued a Statement of the Case in December 2013. However, the Appellant did not file a Substantive Appeal related to this decision nor submit new and material evidence within one year; therefore, the March 2013 rating decision is final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. The Board notes that this appeal had been previously denied in April 2004, November 2005, March 2006, September 2009, and March 2013 rating decisions. The Board also denied the appeal in an August 2008 decision. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; see Knightly v. Brown, 6 Vet. App. 200 (1994). 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). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273. Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513. The evidence received since the March 2013 rating decision includes information regarding the USS Oklahoma City, personnel records, medical treatment records pertaining to the Veteran’s treatment for alcoholic cirrhosis and other conditions, a marriage license, death certificate, service treatment records, lay statements and testimony before the Board. In these statements, the Appellant continued to state her belief that the Veteran’s cause of death should be service-connected because he was exposed to herbicide agents during his active military service. The Appellant’s assertion that the Veteran was exposed to herbicide agents during his active service has already been considered and denied in prior decisions. The new evidence does not show actual exposure to herbicide agents. Additionally, the other evidence is duplicative of the evidence already submitted and does not suggest a nexus between the Veteran’s active military service and his cause of death. In the July 2015 VA Form 9, the Appellant asserted that she was entitled to service connection for the cause of the Veteran’s death under 38 U.S.C. § 1151. However, the Veteran’s death certificate shows that he was treated at, and died at, a private facility. There is no indication that the private facility was contracted by the VA to provide healthcare to the Veteran. Therefore, the Appellant’s new assertion also does not raise a reasonable possibility of substantiating the claim. Therefore, the Board finds that the evidence received since the March 2013 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the claim. Consequently, new and material evidence has not been received and the application to reopen a claim of entitlement to service connection for the cause of the Veteran’s death must be denied. (Continued on the next page) [Continued on next page.] K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. R. Watkins, Counsel