Citation Nr: 20004783 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-15 737A DATE: January 21, 2020 ORDER Entitlement to accrued benefits is denied. Entitlement to death pension is denied. No new and material evidence having been received, the claim for dependency and indemnity compensation for service connection for cause of death (DIC) is denied. FINDINGS OF FACT 1. The Veteran and the Appellant were validly married at the time of his death in November 2010. 2. At the time of the Veteran’s death, the Appellant was 62 years of age. 3. The Appellant remarried following the Veteran’s death and there is no evidence of record establishing her remarriage was void or has been terminated by either death, divorce or annulment. 4. Since the final November 2013 rating decision denying service connection claim for cause of death, although new lay and medical evidence have been received, they are not material because they do not relate to the previously unestablished nexus element nor otherwise raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for recognition of the Appellant as the Veteran’s surviving spouse for purposes of entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101(3), 103, 5121 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.55, 3.106, 3.1000 (2018). 2. The criteria for recognition of the Appellant as the Veteran’s surviving spouse for purposes of entitlement to death pension have not been met. 38 U.S.C. §§ 101(3), 103, 1521(j), 1541 (2012); 38 C.F.R. §§ 3.1(j), 3.3(b), 3.50, 3.55 (2018). 3. The November 2013 rating decision denying the Veteran’s claim for DIC is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). 4. Following the November 2013 rating decision, new and material evidence has not been received to reopen the claim for DIC. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1970, during the Vietnam Era. In October 2019, J. Michael Woods, Esq., submitted a motion to withdraw as the Appellant’s representative. While this motion was received after the certification of the appeal to the Board in September 2019, it demonstrated the requisite good cause and certification that a copy of the letter had been sent to the Appellant in accordance with 38 C.F.R. § 20.608(b) (2018). No response from the Appellant has been received in this regard. While cognizant that the Board sent a letter to the attorney requesting additional reasons for the withdraw, such was not required as the original motion contained the evidence needed. Considering the foregoing, the Board grants the motion to withdraw as the Appellant’s representative. 1. The issues of entitlement to accrued benefits; and entitlement to death pension. Laws and Regulations Accrued benefits are payable to the surviving spouse for any periodic monthly benefits to which the veteran was entitled to at the time of their death, to include claims pending at the time of their death, based on the evidence of record at the time of their death, which were due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.160, 3.1000; see also Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Death pension is a benefit payable to the surviving spouse of a veteran who served during a period of war who died due to a non service-connected disability. 38 U.S.C. §§ 1521(j), 1541; 38 C.F.R. §§ 3.2, 3.3(b)(4). As an initial matter, a determination must be made regarding whether a claimant qualifies as a veteran’s surviving spouse for either accrued benefits or death pension purposes. A “surviving spouse” is a person whose marriage to the veteran was valid under the law of the placed where the parties resided at the time of marriage, when the right to benefits accrued, and who was the spouse of the veteran at the time of death provide they (1) lived with the veteran continuously from the date of marriage to the date of the veteran’s death, with the exception where they were separated due to the misconduct of or procured by the veteran without the fault of the spouse; and (2) has not remarried or lived with another person of the opposite sex and held themselves out to be the spouse of such other person openly to the public since the veteran’s death. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1(j), 3.50. Notwithstanding the above, remarriage by the surviving spouse shall not bar the furnishing of benefits if the marriage was void or has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the VA the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. § 3.55(a)(i), (ii). Further, on or after January 1, 1971, if the remarriage is terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for remarriage would be considered the surviving spouse, it shall not be a bar to furnishing the benefits provided the marriage has been terminated by death or has been dissolved by a court with basic authority to render divorce decrees, unless it is determined by the VA the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. § 3.55(2). There are no other exceptions bearing on remarriage and the restoration of eligibility as the surviving spouse for accrued benefits or death pension purposes. Analysis The Appellant contends that she is the Veteran’s surviving spouse and is entitled to accrued benefits and death pension. The evidence of record shows the Veteran and Appellant were validly married to each other at the time of his death in November 2010. See License and Certificate of Confidential Marriage; Certificate of Death. In a September 2017 Application for DIC, Death Pension and/or Accrued Benefits, the Appellant admitted having been married four times, which included a remarriage since the Veteran’s death. Although she provided additional information regarding her two marriages that occurred prior to her marriage to the Veteran, she did not provide any further detail regarding her remarriage since his death. As such, there is no evidence of record suggesting the Appellant’s remarriage following the Veteran’s death has been terminated by death, divorce, or annulment. Considering the above, the Appellant is not entitled to accrued benefits or death pension as a matter of law because she does not qualify as the Veteran’s surviving spouse for these purposes. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Whether new and material evidence has been received to reopen the claim for DIC. Laws and Regulations Generally, “new” evidence is defined as existing evidence not previously submitted to agency decisions makers, while “material” evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § § 3.156(a). The evidence must not be cumulative or redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. Id. Irrespective of the Regional Office’s (RO’s) determination, the Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of the claim. See Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). Analysis As a preliminary matter, DIC is payable to the surviving spouse of a deceased veteran in the event of a service-connected death. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. With respect to DIC, unlike the claims above, the following additional exceptions may be applicable bearing on remarriage and the restoration of eligibility as the surviving spouse. On or after October 1, 1998, if the remarriage of a surviving spouse is terminated by death, divorce or annulment, it shall not be a bar to DIC, unless it was determined by the VA the divorce or annulment was secured through fraud or collusion. 38 C.F.R. § 3.55(3). On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar DIC. A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for DIC provided the application of such benefits was received by the VA before December 16, 2004. 38 C.F.R. § 3.55(10). Here, the Board notes that at the time of the Veteran’s death in November 2010, the Appellant was 62 years of age. Given the Veteran’s death occurred after January 1, 2004 and she remarried after the age of 57, she is not barred from claiming DIC as his surviving spouse. 38 C.F.R. § 3.55(10). Consequently, the Board may appropriately consider the issue of whether new and material evidence has been received to reopen the claim for DIC. Despite the Appellant’s December 2010 Application for DIC, Death Pension and Accrued Benefits, in which she expressly indicated she was not submitting a claim for DIC, in an October 2011 administrative decision, the RO denied a claim for DIC, finding the there was insufficient evidence showing the Veteran’s death was related to his service. She was notified of this decision and the right to appeal but did not initiate an appeal. No new and material evidence was received within one year of the decision. Subsequently, in September 2013, the Appellant submitted a claim for DIC. Notwithstanding the October 2011 administrative decision, in a November 2013 rating decision, the RO did not adjudicate the issue of whether new and material evidence had been received to reopen the claim for DIC. Instead, service treatment records having been added to the claims file in October 2013, it appears the RO reconsidered the prior claim for DIC. See 38 C.F.R. § 3.156(c). In doing so, the RO denied a claim, finding the there was insufficient evidence showing the Veteran’s death was related to his service. In reaching this conclusion, while the RO acknowledged the Veteran served in the Republic of Vietnam, it noted his cause of death was not among the diseases eligible for presumptive service connection based on herbicide agent exposure. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). She was notified of this decision and the right to appeal but did not initiate an appeal. No new and material evidence was received within one year of the decision Thereafter, in September 2017, the Appellant submitted another claim for DIC. In a February 2018 administrative decision, the RO properly interpreted it as a petition to reopen the prior claim for DIC. The RO denied the petition, finding no new and material evidence had been received. She initiated an appeal of this decision and it is now before the Board. Since the November 2013 rating decision, new lay evidence has been associated with the claims file. In pertinent part, in a November 2018 Statement and December 2019 letter, the Appellant asserted the Veteran’s cause of death was due to his exposure to herbicide agents in-service because he suffered from ischemic heart disease prior to his passing. In support, she stated his VA treatment provider indicated an x-ray examination showed scar tissue suggesting he suffered from heart attacks previously. Further, she claimed the mediations he was prescribed were those that a patient with ischemic heart disease would be treated with. For purposes of assessing whether new and material evidence has been received, although lay evidence is presumed to be credible, it is not presumed to be competent. See Justus v. Principi, 3 Vet. App. 510 (1992). Thus, while the Board accepts her lay statements as credible and acknowledges that they relate to the previously unestablished nexus element, since she is not competent to render a medical diagnosis of ischemic heart disease or an opinion on such a complex matter as the etiology thereof, the Board finds the new lay evidence is not material because it does not raise a reasonable possibility of substantiating the claim. Cf. 38 C.F.R. § 3.156(a); cf. also Shade v. Shinseki, 24 Vet. App. 110 (2010). To the extent the appellant contends that she was told by the Veteran’s physician that he had ischemic heart disease based on x-ray studies, the Board observes that as a layperson, she is competent to report what she was told by a physician. With respect to the credibility of such statements, while there is a presumption that lay evidence is credible for the purposes of determining whether new and material evidence has been received, this presumption is capable of being rebutted. In this case, contrary to the Appellant’s statements, the record contains a February 2010 radiologic examination report and subsequent March 2010 Cardiology Consult which unequivocally states that he was “negative for ischemia.” Accordingly, as the Appellant’s unsupported statements are directly contradicted by the treatment records contained in the file, the Board finds that the presumption of credibility has been rebutted. New medical evidence has also been associated with the claims file. In relevant part, VA treatment records were added to the claims file in September 2018 and April 2019. While a review of these VA treatment records shows that Veteran had a diagnosis of new onset angina prior to his death, they are negative for a nexus opinion linking his cause of death to his service. Again, contrary to the Appellant’s lay contentions, a February 2010 VA Primary Care Note indicated there was no electrocardiographic changes suggestive of myocardial ischemia upon testing and a March 2010 VA Cardiology Consult noted a nuclear stress test was negative for ischemia. As such, the new medical evidence is not material because it either does not relate to the previously unestablished nexus element or is unfavorable in that regard. Cf. 38 C.F.R. § 3.156(a); cf. also Shade, supra; Villalobos v. Principi, 3 Vet. App. 450 (1992). The Appellant also submitted a printout of the VA’s webpage for Ischemic Heart Disease and Agent Orange in December 2019. While the printout describes an association between ischemic heart disease and exposure to herbicide agents, it does not provide any specific information regarding a nexus between the Veteran’s cause of death and his exposure to herbicide agents in-service. Nor does the evidence suggest that the Veteran had ischemic heart disease. It is also not material because it does not raise a reasonable possibility of substantiating the claim. Cf. 38 C.F.R. § 3.156(a); cf. also Shade, supra. (Continued on the next page)   For the reasons above, the Board finds the petition to reopen the claim for DIC must be denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Suh, 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.