Citation Nr: 18155725 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-59 915 DATE: December 6, 2018 ORDER New and material has been received to reopen the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death; to this extent only, the appeal is granted. REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. The VA denied the Appellant’s claim for service connection for cause of death claim in an August 2012 rating decision. The Appellant did not appeal this denial, or submit new and material evidence within a year of the rating decision, so the rating decision became final. 2. Since the last prior final denial in August 2012, the Appellant has submitted evidence which was not previously of record and raises a reasonable possibility of substantiating the claim for service connection for cause of death. CONCLUSIONS OF LAW 1. The original August 2012 rating decision denying service connection for the Veteran’s cause of death is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the Appellant’s claim for service connection for the Veteran’s cause of death. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is confirmed to have died during active service, in February 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the VA Regional Office (RO) in Philadelphia, Pennsylvania. 1. Whether new and material evidence has been received to reopen a claim for service connection for cause of death The Appellant contends that the Veteran’s cause of death is due to or the result of his active service. In August 2015, the Appellant submitted a request to reopen her claim of entitlement to service connection for the Veteran’s cause of death. The RO denied reopening the claim in a November 2015 rating decision on the basis that no additional evidence had been received to show that the Veteran’s death was due to his active service. The RO stated that all evidence was duplicative of evidence previously considered in rendering the original August 2012 decision denying service connection. While neither decision was contained in the record before the Board, the October 2016 Statement of the Case (SOC) described the procedural history of the Appellant’s claim. The Board finds that evidence has been received to reopen the Appellant’s claim for service connection for the Veteran’s cause of death. For a claim to be reopened from a final, unappealed decision, new and material evidence must be provided. 38 C.F.R. § 3.156(a). Review of the record shows that the Appellant submitted a lay statement in August 2015 that relates to the previously unestablished fact of whether the Veteran’s death was due to or the result of active service. This evidence is both new and material to the Appellant’s claim for service connection for the Veteran’s cause of death. Accordingly, the Board finds that new and material evidence has been added to the record, and the claim must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Appellant contends that the Veteran’s death was an accident, emphasizing the fact that the Veteran’s death was not ruled a suicide. See August 2015 statement in support of claim. Before the Board can make a fully informed decision, more information is needed to confirm whether the Veteran’s cause of death was more likely than not due to his misconduct. First, however, the RO should ensure that all relevant documentation, including a copy of the August 2012 rating decision, is associated with the claims file. The matter is REMANDED for the following action: 1. Contact the Appellant and request authorization to obtain any outstanding records pertinent to her claim, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Take steps to reconstitute the Veteran’s claims file, including the August 2012 rating decision and any other currently missing documentation. If the search for such documentation proves unsuccessful, please document this in the record. 2. After completing the requested development, obtain a medical opinion from an appropriate clinician to determine the cause of the Veteran’s death. A copy of this remand and all relevant medical records should be made available to the examiner. The examiner should review the pertinent evidence, including the Appellant’s lay assertions, and it should be confirmed that such records were available for review. Based on this review, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s cause of death was due to or the result of active service. A complete rationale should be provided for all opinions. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks