Citation Nr: 18159155 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-04 947A DATE: 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. December 19, 2018 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for the cause of the Veteran's death, and to that extent only the claim is granted. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT In an unappealed December 2010 rating decision, the RO denied a claim of entitlement to service connection for the cause of the Veteran’s death. Private treatment records from before the Veteran’s death were received subsequent to the December 2010 rating decision and are neither cumulative nor redundant of the evidence at the time of the December 2010 rating decision and assuming their credibility raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The December 2010 rating decision denying a claim of entitlement to service connection for the Veteran’s cause of death, is final and the evidence received subsequent to the rating decision is new and material to reopen that claim of entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1975 to February 1979. The Veteran died in December 2009 and the appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, as to the claim of whether new and material evidence has been received to reopen a claim for entitlement to service connection for the cause of the Veteran's death, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the cause of the Veteran's death. The appellant asserts that she is entitled to service connection for the cause of the Veteran’s death. By way of procedural history, the appellant’s initial claim for service connection for the cause of the Veteran’s death was denied in an unappealed December 2010 rating decision. In a January 2013 rating decision, the RO reopened the appellant’s claim and denied it on its merits. The appellant appealed and the matter is now properly before the Board. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In September 2012, VA received private treatment records from Archbold Medial Center from April 2008 through June 2009. The Board finds that this medical evidence was not previously submitted to VA before the December 2010 rating decision and is therefore “new” evidence. The Board will now turn to a discussion of whether this new evidence is “material.” The evidence received subsequent to the December 2010 rating decision consists of private treatment records which provide diagnoses of actual medical conditions suffered by the Veteran. The Board finds that, assuming their credibility for purposes of deciding whether to reopen the claim, these private treatment records constitute new and material evidence to reopen the claim for service connection for the cause of the Veteran’s death. This new evidence addresses the requirement that the evidence must establish that the Veteran had a, then, current disability that could be associated with the Veteran’s death. Therefore, this new evidence is material and the appellant’s claim for service connection for the cause of the Veteran’s death, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. The Board notes that no medical records concurrent with the time of the Veteran’s death have been received, but also notes that the December 2009 death certificate reveals the place of the Veteran’s death as the Holly Hill Nursing Home in Valdosta, Georgia, from which the record shows no records have been obtained. Further, the Board notes that hypertension was noted in the Veteran’s service treatment records, though not on his separation physical, and that in March 2013, VA received a letter from Dr. D. M., who stated that the Veteran "had a long history of Parkinson's disease as well as diabetes, hypertension and kidney disease", all of which contributed to his death. For the reasons given above, the Board finds that a remand is required to obtain any medical records from the Holly Hill Nursing Home, followed by a VA medical opinion opining as to whether the Veteran’s cause of death was related to his service. The matter is REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for Holly Hill Nursing Home. Make two requests for the authorized records from Holly Hill Nursing Home, unless it is clear after the first request that a second request would be futile. 2. After, and only after, completion of step one above, arrange for an examination of the Veteran’s entire claims file by an appropriate clinician to determine the nature and etiology of the Veteran’s cause of death. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including hypertension. The examiner’s attention is invited to the numerous high blood pressure readings and notations of hypertension in the Veteran’s service treatment records. The examiner’s attention is invited to the August 2012 and March 2013 letters from Dr. D. M., who stated that, among others, the Veteran’s hypertension contributed to his death. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel