Citation Nr: 18152224 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-00 185 DATE: November 21, 2018 ORDER The petition to reopen the claim for service connection for cause of death is denied. REMANDED Entitlement to accrued benefits is remanded. FINDINGS OF FACT 1. In a July 2010 rating decision, the regional office (RO) denied service connection for cause of death. The Appellant did not perfect her appeal within the prescribed time limit and, therefore, the decision became final. 2. Evidence received since the July 2010 rating decision regarding the claim for service connection for cause of death is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied service connection for cause of death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim for service connection for cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision that declined to reopen the Appellant’s claim for service connection for the cause of the Veteran’s death on the basis that the evidence submitted since the prior, final decision was not new and material. Although the RO declined to reopen the claim, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett, 83 F.3d 1383-84. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review it. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 prior final denial of the claim, and it 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 new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the new evidence relates specifically to the reason why the claim was last denied. Instead, it should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. In November 2009, the Appellant filed a claim for service connection for cause of death and, in July 2010, the claim was denied. She did not file a Notice of Disagreement (NOD), and the decision became final one year later in July 2011. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. When the RO denied the claim, the evidence available included the Veteran’s service treatment records, written statements from the Appellant and the Veteran’s children, the Veteran’s Death Certificate setting out that he died from glioblastoma, treatment records up to November 2009, a letter from the Veteran’s doctor indicating that the Veteran’s treatment for glioblastoma caused his service-connected diabetes mellitus, type II, and a VA examination regarding the Veteran’s diabetes. The RO denied the claim because there was no evidence that the Veteran’s glioblastoma that caused his death was caused by military service, to include exposure to Agent Orange during his service in Vietnam. In May 2013, the Appellant filed the present claim. Evidence received since the prior final decision includes additional copies of the Veteran’s treatment records regarding his glioblastoma and diabetes. Many of the documents are copies of those that were already submitted and considered by the RO prior to the July 2010 decision. As such, they are not new, as they were on file and considered when the RO issued its denial in July 2010. Some of the documents are new; however, they are not material because they tend to prove only that the Veteran suffered from and died from glioblastoma, which was already established in the prior decision. They do not tend to prove an unestablished element of the Appellant’s claim and, specifically, that the Veteran’s glioblastoma was incurred in or caused by his service. The Appellant also submitted additional written statements, dated March 2014 and December 2015, asserting that the Veteran’s glioblastoma was caused by herbicide agent exposure during service in Vietnam and that the Veteran’s medication for glioblastoma caused his diabetes. Both contentions were already of record when the prior decision was rendered. The Board acknowledges that the Appellant also raised a new theory of entitlement to reopen this claim. Specifically, she stated that the Veteran’s glioblastoma was secondary to his service-connected diabetes. However, a new theory of entitlement does not, on its face, constitute new and material evidence unless evidence supporting the new theory of entitlement is itself new and material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). As already stated, no such new and material evidence has been submitted. For these reasons, the Board finds that the additional evidence is merely cumulative of evidence that already established the Veteran’s disability at the time of the prior denial, that new and material evidence has not been received, and that reopening the claim for service connection for cause of death is not warranted. See 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran died on September [redacted], 2009. The Appellant filed her original claim for accrued benefits in November 2009 and, in July 2010, she was granted a death pension for the month of October 2009. A July 2010 rating decision denying her claim for accrued benefits noted that the Veteran had many pending claims at the time of his death, but since none of the conditions in question had been determined to be related to military service, no accrued benefits were payable. In May 2013, the Appellant filed a new claim for accrued benefits; and, in February 2014, she was granted entitlement to the Veteran’s month of death payment. She filed an NOD in March 2014; and, in a November 2015 Statement of the Case, the RO denied the claim on the basis that VA did not owe the Veteran any money at the time of his death. The Board notes that there is a distinction between the adjudication of accrued benefits claims and that of substituted claims. Unlike in an accrued benefits claim, the record in a substitution claim is not closed on the date of death of the veteran. It remains open for submission and development of any pertinent additional evidence. In this regard, in September 2014, VA issued a regulation regarding substitution following a veteran’s death, codified at 38 C.F.R. § 3.1010. That regulation states that if a veteran dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a) (1-5) may, in priority order, request to substitute for the deceased veteran in a claim for periodic monetary benefits under laws administered by VA, or an appeal of a decision with respect to such claim, that was pending before the RO or the Board when the veteran died. Upon a grant of a request to substitute, the substituted party may continue the claim or appeal to completion. Notably, in lieu of a specific request for substitution, a claim for accrued benefits, survivors’ pension, or Dependency and Indemnity Compensation (DIC) benefits by an eligible person is deemed to include a request to substitute if a claim for periodic monetary benefits, or an appeal of a decision with respect to such claim, was pending before the RO or the Board when the veteran died. See 38 C.F.R. § 3.1010(c)(2). In this case, at the time of the Veteran’s death, the Veteran had a pending claim for a higher rating for his service-connected diabetes mellitus, type II. In response to a January 2009 rating decision that granted service connection for this condition and assigned a disability rating of 20 percent, he filed a timely NOD in August 2009, one month before his death. An SOC was not issued by the time the Veteran died. In that same NOD, the Veteran appealed the RO’s May 2009 denial of service connection for a brain tumor (glioblastoma). An SOC was not issued prior to the Veteran’s death. Finally, the Veteran also took issue with the RO’s denial of various other claims, including claims for service connection for cholelithiasis, vision loss, post-traumatic stress disorder, and a severe skin rash. Although the August 2009 NOD was not timely with regard to these claims, as service connection for these conditions was denied in July 2008, the RO nevertheless issued a letter to the Veteran prior to his death, dated September 2, 2009, indicating that these claims were being developed. Although the record is clear that the Veteran had several claims pending at the time of his death, the Appellant’s claim for accrued benefits and DIC benefits was not deemed to include a request to substitute, as required by 38 C.F.R. § 3.1010(c)(2), and no determination regarding substitution was made by the RO. The United States Court of Appeals for Veterans Claims has held that VA must comply with its own procedures related to applications for substituted claims. See Reliford v. McDonald, 27 Vet. App. 297 (2015). All determinations regarding a request to substitute must be made in the first instance by the RO, subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010(b), (c)(1), (e). The RO’s decision in this regard is appealable. 38 C.F.R. § 3.1010(e)(2). In this case, as the inferred claims for substitution have not been adjudicated by the RO, a remand of this matter is warranted. The Board again emphasizes that the distinction between the two types of adjudication, accrued benefits and substitution, is significant. 38 U.S.C. § 5121A. Given the facts of this case, it is likely that the disposition of this case would be more favorable to the Appellant if it is adjudicated as one based on substitution. Furthermore, it does not appear that the Appellant was provided with notice of the substitution regulation. See National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, 809 F.3d 1359 (Fed. Cir. 2016) (upholding VA’s regulations requiring the RO to make the substitution determination even if a claim is pending before the Board). On remand, this must be provided. The matter is REMANDED for the following action: 1. Send the Appellant a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010. Afford the Appellant the opportunity to submit additional evidence or argument in furtherance of the claim. Associate any records or responses received with the claims file, and undertake any necessary development. 2. Adjudicate whether the Appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the Veteran’s pending claims. Send the Appellant appropriate notice with respect to her status as a substituted party, or lack thereof. 3. Readjudicate the claim after allowing the Appellant and her representative an appropriate time to submit evidence. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel