Citation Nr: 18157757 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 13-22 107A DATE: December 14, 2018 ORDER New and material evidence not having been submitted, reopening of the claim of service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. An unappealed March 2002 decision denied reopening the claim of entitlement to service connection for the cause of the Veteran’s death. 2. The evidence associated with the claims file since the March 2002 decision does not relate to unestablished facts necessary to substantiate the claim for service connection for the cause of the Veteran’s death and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening a previously denied claim of entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1945 to October 1948, and from March 1951 to February 1952 in the United States Air Force. He also served on active duty from February 1952 to February 1954 in the United States Army. The Veteran died in February 1986. The appellant is the Veteran’s surviving spouse. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and August 2012 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2017, the appellant testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a September 2017 decision, the Board denied reopening of the claim of service connection for the cause of the Veterans’ death. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2018, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board’s decision. Claim to Reopen – Cause of the Veteran’s Death An October 2000 rating decision denied the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death based on a finding that the Veteran’s death was not related to his active service. The appellant did not appeal that decision. A March 2002 rating decision denied reopening the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death based on a finding that new and material evidence had not been presented. The appellant did not appeal that decision. The evidence of record at the time of the March 2002 rating decision included a copy of the Veteran’s death certificate, which indicated that the immediate cause of his death was adenocarcinoma of the lung. VA treatment records indicated that he was diagnosed with adenocarcinoma of the lung after being treated for right scapular pain in October 1985. A chest X-ray revealed a right upper lobe mass and biopsies showed poorly differentiated adenocarcinoma of the lung. It was noted that he had smoked two to three packs per day for 25 years and quit five years prior. It was also noted that he had no past history of tuberculosis, no recent travel history, and no history of exposure to asbestosis. His family history was positive for lung cancer. The appellant contended that the Veteran served in Korea and sustained an injury that resulted in pieces of metal being stuck in his chest. She also asserted that he served in the Republic of Vietnam during the Vietnam era and was exposed to Agent Orange. She attributed his adenocarcinoma of the lung to the pieces of metal and/or Agent Orange exposure. In her statements, she suggested that the pieces of metal became corroded by Agent Orange, which resulted in the growth of his tumor. The Veteran’s service treatment records were unremarkable for any chest injuries during service. At his February 1954 discharge examination, his lungs were normal and chest X-rays were negative. His service personnel records indicated that he served overseas in Japan and Germany, but did not show any duty assignments to Korea or the Republic of Vietnam. As noted above, in a March 2002 decision, the RO denied the appellant’s request to reopen the claim of for the cause of the Veteran’s death. The evidence did not show that the Veteran’s lung cancer was incurred in or otherwise related to his active service. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record could not be new and material even if that evidence were not previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The pertinent evidence received after the March 2002 decision includes statements and hearing testimony from the appellant reiterating her contention that the Veteran’s lung cancer was caused by an in-service injury with retained metal fragments and/or in-service exposure to Agent Orange. During the April 2017 Board hearing, she stated that she believed that the shredded metal from the injury the Veteran sustained in Korea caused lead poisoning and this injury, along with Agent Orange exposure, resulted in his lung cancer. The Board finds that those lay statements and hearing testimony are cumulative and not new and material evidence. In addition, the appellant submitted a July 2011 letter from a private physician, Dr. A.C. In that letter, the physician suggested that the Veterans’ exposure to chemicals and herbicides may have contributed to his death, noting Korean War service wounds involving pieces of shrapnel and clandestine service in Vietnam. In the May 2018 Joint Motion, the parties agreed that the Board failed to provide adequate reasons and bases for not presuming the credibility of the July 2011 letter and determining that the evidence was not new and material to reopen the claim. As noted above, the evidence is presumed credible unless it is inherently false or untrue. In this case, Dr. A.C.’s letter was inherently false and untrue. The Veteran did not have active service in Korea or the Republic of Vietnam and he did not sustain an injury to his chest involving retained metal fragments during active service. The July 2011 letter is completely unsupported by, and contradicts the record. There is no presumption of credibility where the evidence is patently untrue. The July 2011 letter does not constitute “material” evidence because there is no reasonable possibility that, when viewed in the context of all the evidence, both new and old, that it would change the outcome of the claim. Therefore, the Board finds that the July 2011 letter does not constitute new and material evidence. In this case, the evidence added to the record does not raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for the cause of the Veteran’s death is not warranted. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel