Citation Nr: 18154948 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-01 591 DATE: December 3, 2018 ORDER New and material not having been received, the claim of entitlement to service connection for the cause of the Veteran’s death is not reopened and the appeal is denied. FINDINGS OF FACT 1. Service connection for the cause of the Veteran’s death was denied in a November 1997 rating decision. The appellant was notified of this action and of her appellate rights, but did not file a timely appeal. 2. Since the November 1997 decision denying service connection for the cause of the Veteran’s death, any additional evidence, not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence submitted subsequent to the November 1997 rating decision, which denied service connection for the cause of the Veteran’s death, is not new and material; thus, the claim is not reopened, and the November 1997 rating decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to April 1973. He died in May 1997. The appellant is the Veteran’s widow. Whether new and material has been received to reopen the claim of service connection for the cause of the Veteran's death Service connection for the cause of the Veteran’s death was previously denied in a November 1997 rating decision based essentially on a finding that there was no evidence to show that the Veteran’s cause of death was related to his military service. The appellant did not appeal this determination or submit new and material evidence within one year of that decision; therefore, it is final. In September 2011, the appellant filed another claim for service connection for the cause of the Veteran’s death. In such cases, it must first be determined whether new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask 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. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the November 1997 rating decision that denied service connection for the cause of the Veteran’s death included the Veteran’s service treatment records (STRs) and death certificate. The STRs show that all blood pressure readings taken during service were within normal limits, except for the reading taken on examination for separation from service, which was 138/90. (Hypertension is persistently high arterial blood pressure with suggested threshold levels starting at 140 mm/Hg systolic and 90 mm/Hg diastolic. Dorland’s Illustrated Medical Dictionary, 799 (27th ed. 1988). Note (1) to Diagnostic Code 7101 recognizes the disability of hypertension when the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104.) The Veteran’s certificate of death shows that he died in May 1997, at age 47. The immediate cause of death was sepsis, due to or as a consequence of, staph aureus bacterium, due to or as a consequence of total parenteral nutrition, due to or as a consequence of chronic pancreatitis. Other significant conditions leading to death, but not related to the immediate cause of death were hypertension and hyperlipidemia. No autopsy was performed. At the time of his death, service connection was not in effect for any disability. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent 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 or injuries involving active processes affecting vital organs should receive full consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting 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 U.S.C. § 1310; 38 C.F.R. § 3.312. Review of the record subsequent to the November 1997 rating decision shows that the appellant has not submitted any new evidence to support the reopening of the claim of service connection for the cause of the Veteran’s death. As part of her application to reopen her claim for service connection for the cause of the Veteran’s death, the appellant indicated treatment records were potentially available from the following sources: Dr. J.C., who treated the Veteran from 1982 to 1996; Dr. P.T., who treated the Veteran from 1996 to 1997; and Health Central Hospital, where the Veteran was hospitalized in May 1997. Efforts were undertaken to obtain these records; however, Dr. J.C. responded that the Veteran was “not [their] patient.” Dr. P.T. responded that they did not have any records for the Veteran from 1996 to 1997. And Health Central Hospital indicated they were unable to locate a record for the Veteran. The appellant also submitted several statements in support of her claim where she essentially contended that service connection for the cause of the Veteran’s death was warranted because hypertension was one of the conditions that contributed significantly to his death, and his service separation examination showed an elevated blood pressure reading of 138/90. She also stated that to the best of her recollection, ever since she met the Veteran in 1972, he had been on hypertension medication. While the Board understands the appellant’s contention that the elevated blood pressure reading at separation from service could have constituted the onset of hypertension, this evidence was of record and considered at the time of the prior final rating decision in November 1997. Moreover, as noted, hypertension is persistently high arterial blood pressure and there is no indication that the isolated reading at separation is actually diagnostic of hypertension. There is also no indication in the Veteran’s STRs that he was prescribed hypertension medication in service. Absent some evidence upon which the claim may be reopened, such as an opinion that raises a reasonable possibility of substantiating the claim, the application to reopen the claim must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio