Citation Nr: 18151920 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-18 283 DATE: November 20, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for cause of death is reopened. REMANDED Entitlement to service connection for cause of death is remanded. FINDING OF FACT 1. An October 1994 rating decision denied service connection for cause of death. The appellant did not file a timely appeal of this decision and it became final. 2. The evidence received since the October 1994 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the appellant’s claim of entitlement to service connection for cause of death. CONCLUSION OF LAW 1. The October 1994 rating decision denying service connection for cause of death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim of entitlement to service connection for cause of death have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1946 to May 1949, from October 1950 to May 1957, and from July 1958 to July 1970. The Veteran died in March 1990 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) reopening the claim for service connection for cause of death but denying service connection for cause of death. In August 2018, the appellant attended a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence has been presented for entitlement to service connection for cause of death Generally, a final rating decision or Board decision may not be reopened, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim). The RO initially denied a claim for entitlement to service connection for cause of death in an October 1994 rating decision as there was no medical nexus between the Veteran’s death and his service. That decision was not appealed and became final. Evidence of record at the time of the October 1994 rating decision included the Veteran’s service medical records. Pertinent evidence received subsequent to the October 1994 rating decision includes post-service medical records, the Veteran’s death certificate, and the appellant’s testimony at the hearing in this matter regarding additional medical care received by the Veteran. The evidence received since the October 1994 rating decision is new and material. The claim was denied in October 1994 as there was no medical evidence of a link between the Veteran’s death and his active duty service. The evidence submitted after the rating decision is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim as it may support the appellant’s contentions that the Veteran’s death was related to his active duty service. Accordingly, reopening of the claim of entitlement to service connection for cause of death is warranted. REASONS FOR REMAND 1. Entitlement to service connection for cause of death is remanded. Upon review of the claims file, it is apparent that a remand is necessary before the remaining issue on appeal can be adjudicated. The appellant testified that the Veteran received medical treatment related to this claim at Emory Hospital-Midtown and that she has attempted to obtain medical records from the hospital to substantiate the claim. The claims file contains a May 2013 invoice from Emory Hospital-Midtown stating that the hospital has over 1,000 pages of medical records for the Veteran, but that it would not release those records without receiving payment. It is unclear from the record if VA has requested those records. While there are several requests from various Emory facilities, it is unclear if the request from Midtown, which as of 2013 had records, was done. Significantly, the most recent October 2018 response from an Emory facility reflecting no records were available clearly checked off boxes that they had received a request to inspect or copy records only from “the Emory Clinic” and “Emory Specialty Associates.” Significantly, the box next to “Emory University Hospital Midtown” was not checked. As there clearly were records at one point, despite the prior attempts, the Board finds that another request specifically to Emory University Hospital Midtown should be undertaken. The record further reflects that the Veteran’s death certificate indicates that the Veteran may have received medical treatment at Clayton General Hospital and that he received medical treatment from Dr. O. There are no records from Clayton General Hospital associated with the claims file and there is a letter from Dr. O. but no corresponding medical records. As the Veteran’s medical records may support the appellant’s claim, VA should attempt to obtain the Veteran’s outstanding records and associate those records with the claims file. The matter is REMANDED for the following action: (Continued on the next page)   1. Ask the appellant to complete a VA Form 21-4142 for each physician or facility where the Veteran received treatment for the diseases or conditions which the appellant claims are related to the Veteran’s service, to include Emory Hospital-Midtown, Clayton General Hospital, and Dr. O. Make two requests for the authorized records from each physician or facility identified by the appellant, unless it is clear after the first request that a second request would be futile. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel