Citation Nr: 20005531 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-08 909A DATE: January 23, 2020 ORDER New and material evidence having been received; the claim for entitlement to service connection for cause of death is reopened. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. A December 1994 rating decision denied entitlement to service connection for cause of death; the appellant did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the December 1994 rating decision. 2. A June 2004 rating decision reopened and denied the claim for service connection for cause of death; the appellant filed a timely Notice of Disagreement as to the June 2004 rating decision; a Statement of the Case (SOC) was issued in December 2005; the appellant did not file a timely substantive appeal as to the December 2005 SOC. 3. A February 2008 rating decision denied entitlement to service connection for cause of death; the appellant filed a timely Notice of Disagreement as to the February 2008 rating decision; a Statement of the Case (SOC) was issued in November 2008; the appellant filed a substantive appeal as to the November 2008 SOC but withdrew the claim for service connection for cause of death during a January 2010 Board hearing. 4. Evidence received since the February 2008 rating decision is new and raises a reasonable possibility of substantiating the appellant’s claim for entitlement to service connection for cause of death. CONCLUSIONS OF LAW 1. The February 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for cause of death is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1950 to August 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for cause of death is reopened In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In this case, the RO denied service connection for death in December 1994, June 2004, and February 2008 rating decisions because there was no evidence Veteran’s cause of death was incurred in or caused by service. Thus, service connection for cause of death could not be established. The appellant was notified of the final decision in a letter dated February 2008. The Veteran filed a notice of disagreement with the February 2008 rating decision but withdrew the claim during a January 2010 Board hearing and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the February 2008 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final February 2008 rating decision includes medical articles submitted by the appellant in December 2017 and October 2018 which state there is some evidence pointing to a causal relationship between posttraumatic stress disorder (PTSD) and increased cardiovascular disease risk and mortality. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the medical articles raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the appellant’s claim for entitlement to service connection for cause of death, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Service connection for cause of death is remanded The appellant seeks entitlement to service connection for cause of death. The appellant was provided a VA opinion as to the Veteran’s cause of death in February 2019. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the February 2019 opinion relating to the Veteran’s cause of death is inadequate for decision-making purposes because the examiner did not address the contentions raised by the medical articles submitted by the appellant. One article stated there is compelling evidence for the association between PTSD and an increased risk of cardiovascular disease and mortality, with some evidence pointing to a causal relationship. However, in rendering an opinion as to whether the Veteran’s PTSD contributed to his coronary artery disease and his eventual death, the examiner stated there is no evidence of record or evidence to support the claim that anxiety reaction causes coronary artery disease. In fact, the article submitted in December 2017, cited a Harvard School of Public Health study which found an increased risk of coronary heart disease in older patients suffering with elevated symptoms of PTSD. As the opinion is not adequate for decision-making purposes, the appellant must be provided a new VA opinion to address whether the Veteran’s PTSD contributed to his coronary artery disease and his eventual death. The matter is REMANDED for the following action: 1. Provide an addendum opinion regarding the Veteran’s cause of death. (a.) Is it at least as likely as not the Veteran’s PTSD contributed to his coronary artery disease and his eventual death? (b.) In rendering the opinion, the examiner is asked to discuss the contentions raised in the articles submitted by appellant which suggest a relationship between PTSD symptoms and the risk of coronary artery disease. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.