Citation Nr: 1808856 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 14-15 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for the cause of the Veteran's death and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran had active military service from January to August 1977. The Veteran died in July 1983; the Appellant is the Veteran's surviving spouse. In July 2012, the Appellant filed a claim seeking to reopen the issue of entitlement to service connection for the cause of the Veteran's death. This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2013 and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran died in July 1983; his death certificate lists the immediate cause of death as severe head injury due to a vehicle accident. 2. At the time of his death, service connection had been established for residuals of a left knee disability. 3. A November 2009 Board decision reopened the Appellant's previously denied claim seeking entitlement to service connection for cause of the Veteran's death; however, the Board denied the claim on the merits after determining that the Veteran's service-connected residuals of left knee disability did not substantially or materially contribute to cause his death, did not combine to cause his death, and did not aid or lend assistance in the production of death. 4. All evidence received since the November 2009 Board decision is either not new or does not tend to show the Veteran's service-connected left knee disability (nor other service-connected disability) contributed to his death; any new evidence does not relate to the unestablished fact necessary to substantiate a claim to establish service connection for cause of death or raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The Board's November 2009 decision denying the Appellant's claim for service connection for the Veteran's cause of death is final. 38 U.S.C.A. § 7104 (West 2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has not been received, and the claim of service connection for the cause of the Veteran's death may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Appellant was advised of VA's duties to notify and assist in the development of the cause of death claim prior to the initial adjudication of her claim. A January 2013 letter provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence she was responsible for providing. This letter also informed the Appellant of disability rating and effective date criteria. The Appellant has had ample opportunity to respond/supplement the record and she has not alleged that the written notice in this case was less than adequate. The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The Appellant has provided a number of statements in support of her appeal. Significantly, the Appellant has not identified, and the record does not otherwise indicate, any additional existing evidence, medical or otherwise, that is necessary for a fair adjudication of the claim that has not been obtained. VA's duty to assist is met. II. New and Material Evidence Claim Initially, the Board notes that it has reviewed all of the evidence in the Appellant's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). III. Factual Background and Analysis The Appellant is seeking to reopen her claim of entitlement to service connection for the cause of the Veteran's death. The Appellant initially filed a claim of service connection for cause of the Veteran's death in September 1983. This claim was denied in an unappealed rating decision dated in October 1983. In September 2003, the Veteran petitioned the RO in Atlanta, Georgia, to reopen her claim. In January 2004, the Atlanta RO issued a rating decision that denied the Appellant's petition to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The Veteran appealed that decision. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. In a December 2006 Supplemental Statement of the Case, the Winston-Salem RO reopened the claim and denied the claim on the merits. In July 2007 the Board issued a decision that denied the Appellant's petition to reopen the claim based on a finding that new and material evidence had not been received to reopen the claim. Thereafter, the Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the Court issued a Memorandum Decision that vacated the portion of the Board's decision that had denied reopening of the claim, and remanded the issue to the Board for readjudication consistent with the Court's decision. In November 2009, the Board issued a new decision that reopened the Appellant's claim and denied that claim on the merits. Specifically, the Board found that the evidence of record simply did not show the Veteran's service-connected left knee disability caused or materially contributed to cause his death. The November 2009 Board decision therefore is final. 38 U.S.C.A. § 7104. The pertinent evidence of record at the time of the Board's November 2009 denial included the Veteran's service treatment records; post-service treatment records; the Veteran's death certificate that identified the immediate cause of death as severe head injuries due to a vehicle accident; medical opinion letters of J.E.B., M.D., supporting the Appellant's contention that the Veteran's service-connected left knee disability played a causal role in the motor vehicle accident resulting in his fatal injuries; and the medical opinion of J.C.M., M.D., noting that the opinion letters by Dr. J.E.B. constituted conjecture and that the Veteran's knee injury could not be connected to the accident without resorting to unfounded speculation. Evidence received since the November 2009 Board decision includes copies of service treatment and personnel records, copies of post-service VA and private treatment records, statements made by the Appellant in support of her appeal, and an informal hearing presentation by the Appellant's representative. As an initial matter, the Board notes that the copies of service treatment and personnel records, as well as the post-service VA and private treatment records, are duplicative of evidence already associated with the file and considered by the Board when it issued the November 2009 decision. The Board has also carefully considered the Appellant's statements and the arguments set forth by the Appellant's representative. These statements and arguments are not "new" evidence, as they essentially reiterate the findings of Dr. J.E.B. and ask the Board to assign a higher probative value to Dr. J.E.B.'s medical opinion which supports the Appellant's contentions. However, even if the Board determined that these statements and arguments were "new" evidence, the Board observes that they are not "material." More importantly, these statements and arguments do not establish that the Veteran's service-connected residuals of a left knee disability caused or materially contributed to cause his death from a severe head injury. When the Board issued its November 2009 decision, it specifically considered the letters from Dr. J.E.B. supporting the Appellant's contention that the Veteran's service-connected left knee disability played a causal role in the motor vehicle accident resulting in his fatal injuries. The Board also considered Dr. J.C.M.'s medical opinion noting that the opinion letters by Dr. J.E.B. constituted conjecture and that the Veteran's knee injury could not be connected to the accident without resorting to unfounded speculation. In denying the Appellant's claim, the Board ultimately assigned a greater probative weight to Dr. J.C.M.'s opinion than the opinion offered by Dr. J.E.B. Thus, these statements and arguments simply amount to the Appellant and her representative asking the Board to reevaluate the evidence already of record, and in doing so, find that the weight of the evidence favors granting her claim. Overall, the Board finds that the additionally received evidence since the November 2009 Board decision is either cumulative of the evidence previously of record, or, if new, does not provide a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that, even when considering the "low threshold" for determining whether evidence is new and material pursuant to Shade v. Shinseki, 24 Vet. App. 110 (2010), the criteria for reopening the claim for service connection for the Veteran's cause of death have not been met. The Board acknowledges that lay evidence may be competent on a variety of matters, concerning the nature of disability, to include as to matters perceived through the senses, as well as with respect to some related medical matters. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Here, the Appellant's statements demonstrate her belief that the Veteran's service-connected residuals of a left knee disability contributed to his death. However, the specific medical matter of the Veteran's cause of death is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (providing that lay persons are not competent to diagnose cancer). As the Appellant is not shown to be other than a layperson without appropriate training and expertise, she is not competent to render a probative (i.e., persuasive) opinion on the medical matter upon which this claim turns. Therefore, where, as here, resolution of the appeal turns upon a medical matter that cannot be established by lay evidence, unsupported lay statements, alone, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211, 214 (1993). The Board sympathizes with the Appellant and recognizes the difficult circumstances of the Veteran's death and the Appellant's loss. The Board understands the sincerity of her belief that the Veteran's death was causally related to service-connected disability. The Board is grateful to the Veteran for his honorable service. On the limited question before the Board at this time, applying the law to the facts simply reveals no new and material evidence has been received and thus there is no basis upon which to reopen the prior final November 2009 Board denial of service connection for the cause of the Veteran's death. ORDER The appeal to reopen a claim of entitlement to service connection for the cause of the Veteran's death is denied. _______________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs