Citation Nr: 20002832 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 16-15 695 DATE: January 14, 2020 ORDER New and material evidence having not been received, the application to reopen the previously denied claim for service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. In a February 2002 rating decision, the RO denied a claim for service connection for the cause of the Veteran’s death. The appellant was notified of the decision, but she did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the February 2002 rating decision, by itself or in conjunction with previously considered evidence, is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The February 2002 rating decision that denied service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has not been received to warrant reopening of the previous claim that denied service connection for the cause of the Veteran’s death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1943 to January 1946. He died in September 2001, and the appellant is claiming benefits as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Law and Analysis The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for the cause of the Veteran’s death. In a February 2002 rating decision, the RO denied service connection for the cause of the Veteran’s death. In that decision, the RO noted that the Veteran’s death certificate indicated that he died from natural causes and that he was not service-connected for any disability during his lifetime. The RO found that the evidence of record did not establish the actual cause of death or show that the cause of death was incurred or aggravated by service. The appellant was notified of the February 2002 rating decision and of her appellate rights in a letter sent to her within the same month; however, she did not submit a notice of disagreement with the decision. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the February 2002 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The evidence of record at the time of the February 2002 rating decision included the Veteran’s service treatment records, military personnel records, a death certificate, and lay statements. With regard to the death certificates and military personnel records, the Board finds that they are duplicative of the evidence considered at the time of the February 2002 rating decision. Therefore, they do not constitute new and material evidence. The Board notes that the claims file lists a receipt date of July 2016 for the Veteran’s service treatment records. However, the RO had requested such records prior to the February 2002 rating decision and specifically noted that they were considered in that decision. Moreover, the RO had also noted review of the service treatment records in November 1946 and April 1950 rating decisions, specifically noting a discharge examination report in the latter decision. Thus, it appears that the receipt date was listed incorrectly in the electronic claims file and that the records were previously considered by the RO in the February 2002 rating decision. Thus, 38 C.F.R. § 3.156(c) does not apply. With regard to the lay statements, the Board finds that they do not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. The appellant has reported that the Veteran had Alzheimer’s disease, Parkinson’s disease, and depression; however, she did not indicate that they were the disabilities that caused his death or that they were related to his military service. Indeed, she has not identified the actual cause of death or a theory of entitlement. Instead, the appellant has generally stated that the Veteran was in poor health, and she has not identified any identify any disease, injury, or event in service to which the cause of death could have been related. Therefore, the statements are new in that they were not previously of record, but the Board finds that they are not material. Significantly, the evidence missing at the time of the February 2002 rating decision continues to be absent. Specifically, there remains no evidence showing the Veteran’s exact cause of death other than natural causes or how the cause of death may be related to his military service. Accordingly, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for the cause of the Veteran’s death. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.