Citation Nr: 18155914 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-62 912 DATE: December 6, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for the cause of the Veteran’s death. FINDINGS OF FACT 1. In an unappealed November 2009 rating decision, the RO denied service connection for the cause of the Veteran’s death based on a finding that the Veteran’s cause of death was not incurred in or otherwise related to service. 2. In an unappealed November 2011 rating decision, the RO denied service connection for the cause of the Veteran’s death based on a finding that new and material evidence had not been received to reopen the claim. 3. Evidence received subsequent to the November 2011 rating decision denying service connection for the cause of the Veteran’s death is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2009 rating decision denying service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The November 2011 rating decision denying service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 3. The criteria for reopening the claim for service connection for the cause of the Veteran’s death on the basis of new and material evidence have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1950 to December 1952. The appellant is his surviving spouse. The Veteran’s cause of death is listed as hypercalcemia due to multiple myeloma. In an April 2016 statement, the appellant’s former representative stated that because multiple myeloma was proposed to be added to the list of diseases for which presumptive service connection would be granted due to service in Camp Lejeune, the claim should be considered on a de novo basis. Effective March 14, 2017, VA amended its regulations governing presumptive service connection to include certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune from August 1, 1953, to December 31, 1987. 82 Fed. Reg. 4,173 (Jan. 13, 2017) (eff. Mar. 14, 2017) (to be codified at 38 C.F.R. § 3.309(f)). If a claimant is presumed to be exposed to contaminants based on a qualifying period of service, and one of the eight listed diseases manifests to a degree of 10 percent at any time after service, the disability is presumed to be related to contaminant exposure. As mentioned above, the Veteran’s cause of death is listed as hypercalcemia due to multiple myeloma. Multiple myeloma is one of the new diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune. However, as the Veteran separated from service in December 1952, and the newly amended regulation applies only to dates of service between August 1, 1953, to December 31, 1987, it is inapplicable to the instant case. While there has been an intervening law or regulation change that has created a new theory of entitlement to benefits generally, that newly-created theory does not apply to the appellant’s claim, as there is no presumptive service connection for service in Camp Lejeune during the Veteran’s period of service. Instead, as contaminant exposure in-service is still not presumed, the appellant must still rely on direct service connection as her theory of entitlement to benefits, which is the same theory that had been previously denied. Therefore, the appellant must submit new and material evidence to reopen this claim. 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for the cause of Veteran's death The claim for service connection for the cause of the Veteran’s death was initially denied in an November 2009 rating decision based on a finding that the Veteran’s cause of death was not incurred in or otherwise related to service. The appellant was notified of this determination in a November 2009 letter, which included information about the appellant’s appeal rights. The appellant did not appeal this decision and she has not contended that this rating decision is not final as to this issue. Thus, the November 2009 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In April 2011, the appellant’s former representative submitted a statement indicating that the appellant wished to reopen the claim of entitlement to service connection for the cause of the Veteran’s death. In May 2011, the appellant was notified that VA Form 21-534 needed to be completed to process the claim. In July 2011, the appellant’s former representative contended that a new VA Form 21-534 was not necessary because one had already been submitted with the previous claim. In a November 2011 letter, the RO notified the appellant that the claim for service connection for the cause of the Veteran’s death was again denied based on a finding that the appellant had not submitted new and material evidence to reopen the claim. The letter included information about the appellant’s appeal rights. The appellant did not appeal this decision. The appellant has not contended that this rating decision is not final as to this issue. Thus, the November 2011 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the November 2011 rating decision included the Veteran’s DD Form 214, service treatment records (STRs), and private treatment records. The evidence added to the file since the last final decision are private medical records and copies of STRs. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in November 2011. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. Private medical records received since the November 2011 decision reflect information for the treatment the Veteran received immediately prior to his death; however, they do not reflect evidence in support of a finding that the Veteran’s cause of death was incurred in or otherwise related to service. The Veteran’s private treatment records immediately prior to his death do not provide new and material evidence for the claim of service connection for the cause of Veteran's death, as they do not contain any new information relating to the substantiation of the claim at hand. This additional clinical evidence does not relate to an unestablished fact necessary to substantiate the claim, which would be that the Veteran’s death was somehow related to his service. 38 C.F.R. § 3.156. The STRs received are duplicates of records that were previously reviewed. Thus, the Board concludes that this evidence is not new and material under 38 C.F.R. § 3.156(a) and does not constitute relevant service department records under 38 C.F.R. § 3.156(c) since they were already of record previously. The evidence received since the last final denial is duplicative or cumulative of prior evidence of record. The Board finds that none of the evidence raises a possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the additional evidence received since the November 2011 decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the claim of entitlement to service connection for the cause of Veteran’s death is not reopened. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel