Citation Nr: 20007546 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-48 136 DATE: January 29, 2020 ORDER New and material evidence having not been received, the appeal to reopen a claim of entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. A September 2005 rating decision, in part, denied entitlement to service connection for the cause of the Veteran’s death; the appellant did not timely file a notice of disagreement (NOD) as to this issue and no new and material evidence was received during the appeal period as to this issue. 2. Evidence received subsequent to the September 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for the cause of the Veteran’s death; and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2005 rating decision, which, in part, denied entitlement to service connection for the cause of the Veteran’s death, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for the cause of the Veteran’s death has not been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1951 to February 1954. He died in April 2005, and the appellant is claiming benefits as his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA). In April 2016, the appellant filed a claim to reopen the claim of entitlement to service connection for the cause of the Veteran’s death. A November 2016 rating decision, issued in December 2016, denied the claim. In December 2016 and August 2017 statements, the appellant’s representative, in part, requested reconsideration of the denial to reopen the claim, and the denial to reopen the claim was confirmed and continued in a September 2017 administrative decision. Thereafter, a NOD was received in July 2018. Following issuance of a statement of the case (SOC) in August 2018, a substantive appeal was timely received within 60 days thereafter. The July 2018 NOD was not timely as to the November 2016 rating decision; however, the Board will consider the appellant’s representative’s December 2016 statement as a NOD, even though it was not filed on a VA Form 21-0958, the proper standardized form for a NOD, as required by a March 24, 2015 regulation change, as the Agency of Original Jurisdiction (AOJ) did not inform the appellant or her representative that such was not a valid means of initiating an appeal in order to ensure continuation of the claim. The appellant’s representative requested a hearing before a Decision Review Officer, including in statements dated in February 2018, July 2018, May 2018 and August 2018; however, the request for a DRO hearing was subsumed by the opportunity to have a Board hearing, and which, as discussed below, was provided to the appellant in November 2019. See Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012). As indicated above, in November 2019, the appellant provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file and reflects the record was held open for 60 days from the date of the hearing to allow the appellant and her representative to submit additional evidence. In this regard, the appellant’s representative submitted additional argument in November 2019, subsequent to the Board hearing. As the requested 60 day extension has now elapsed and the appellant’s representative has submitted additional argument in support of the appeal, the Board may proceed with appellate review. Additionally, since the most recent August 2018 SOC, issued for the appeal here, additional evidence in the form of June 2003 VA treatments records were submitted by the appellant’s representative in December 2018 and again in October 2019. Neither the appellant nor her representative waived review by the AOJ. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, although the appellant’s substantive appeal was filed after February 2, 2013, the record reflects that the entirety of the additional evidence, although VA treatment records, was submitted by the appellant’s representative. Moreover, these records are duplicative of records associated with the record initially in June 2003 and again in November 2016, and were reviewed in the August 2018 SOC. Thus, a remand for the additional evidence to be considered by the AOJ is not warranted. As a final initial matter, pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102 , 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Here, neither the appellant nor her representative has 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). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran’s death The appellant asserts that new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran’s death. Specifically, in November 2019 testimony, she argued, in part, that the manifestations of the Veteran’s service-connected posttraumatic stress disorder (PTSD) caused him to be in a constant anxious state which resulted in his fatal heart disabilities. She also testified that, after the Veteran’s separation from service, he developed hypertension, which she believed was result of the stress of his service. A certificate of death, associated with the claims file in April 2005, in conjunction with the appellant’s initial claim, documented the Veteran’s cause/manner of death was cardiogenic shock and acute myocardial infarction. During his lifetime, the Veteran was service-connected for PTSD, residuals of a shell fragment wound to the left shoulder, residuals of a shell fragment wound to the left thigh, residuals of a shell fragment wound to the upper clavicle region, and a lineal corneal scar on the right side. Additionally, a September 2002 rating decision, in part, denied service connection for atherosclerotic cardiovascular disease, status post coronary artery bypass, and while the Veteran initially appealed this denial, he, in conjunction with his representative, withdrew this appeal. The Veteran did not have any pending claims at the time of his death. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has 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.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The appellant’s claim service connection for the Veteran’s cause of death was previously finally denied. In this regard, a September 2005 rating decision, in part, denied entitlement to service connection for the cause of the Veteran’s death. The September 2005 rating decision denied service connection for the Veteran’s cause of death as service medical records were negative for conditions causing death and there was no evidence of any cardiovascular condition to a compensable degree within the one year presumptive period after discharge from active duty. The September 2005 rating decision also found no evidence that the Veteran’s service-connected conditions contributed to his death and noted that an April 21, 2005 statement from the appellant’s representative had been reviewed. The appellant was notified of the denial later the same month, she did not appeal the denial of the claim, and no new and material evidence was received within the appeal period. The record also reflects that service records were associated with the record with receipt dates subsequent to the September 2005 rating decision. Specifically, service treatment records have been associated with record with receipt dates in October 2016 and February 2017. However, the September 2005 rating decision explicitly referenced review of the Veteran’s service treatment records. Service personnel records were added to the record with a receipt date in October 2016, although the Board recognizes these also contain a February 2017 Personnel Information Exchange System response. Nonetheless, the service treatment records and service personnel records merely contained facts that were never in question, and do not relate to a heart disability or hypertension, or a nexus linking these disabilities to the Veteran’s military service or to his service-connected PTSD or other service-connected disability. The Federal Circuit has accepted that the term “relevant official service department record” in 38 C.F.R. § 3.156 (c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). Thus, to the extent service records were not reviewed in conjunction with the prior denial in the September 2005 rating decision, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as to this claim. Thus, the September 2005 rating decision, which, in part, denied a claim of service connection for the Veteran’s cause of death, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. New evidence associated with the record since the September 2005 rating decision consists of additional VA treatment records associated with the record in October 2016. However, these VA treatment records are not relevant to the claim, as while they address hypertension and heart disabilities, they do not link these disabilities to service-connected PTSD or other service-connected disability, or provide a nexus to the Veteran’s service. Further, while they also address the Veteran’s PTSD and manifestations thereof, they do not link these manifestations to hypertension or heart disability. In this regard, in July 2018, December 2018 and October 2019, the appellant’s representative submitted a June 2003 VA treatment record, authored by D. B., M.D., discussing the manifestations of the Veteran’s PTSD. This June 2003 VA treatment record documented, in part, the Veteran’s PTSD was manifested by a number of symptoms including anxiety, flashbacks, intrusive recollections, trouble sleeping, nightmares, being uncomfortable around people, hypervigilance, startle reaction, and irritability; however, this record was initially associated with the record in June 2003, prior to the September 2005 rating decision, and thus, is not new evidence. Further, as with the new VA treatment records associated with the record in October 2016, including multiple other records also authored by D. B., M. D., which addressed the Veteran’s PTSD, the Board reiterates the manifestations of the Veteran’s PTSD have not been medically linked to hypertension or a heart disability. Thus, the Board finds that the VA treatment records associated with the record in October 2016, while new, are cumulative and redundant of the evidence of record at the time of the last prior final decision. Further, the additional records do not relate to an unestablished fact and do not raise a reasonable possibility of substantiating the claim. Additionally, to the extent that the appellant and her representative have asserted, as in November 2019 testimony, that the Veteran’s fatal heart disabilities were related to his service-connected PTSD, this contention was already considered and rejected when the claim was denied in September 2005. Specifically, in an April 21, 2005 statement, in connection with the appellant’s initial claim, the appellant’s representative stated they were claiming cause of death as service-connected since the Veteran was compensated for PTSD and died of a massive heart attack which was a result of stress. In this regard, the September 2005 rating decision found no evidence that the Veteran’s service-connected conditions contributed to his death and explicitly noted that an April 21, 2005 statement from the appellant’s representative had been reviewed. The appellant and her representative’s additional statements, including dated in December 2016, October 2017, February 2018, May 2018, June 2018, December 2018, October 2019, and November 2019, and November 2019 hearing testimony, regarding linking the Veteran’s fatal heart disabilities to his PTSD, are cumulative and not new evidence as the same contentions were provided with respect to the initial claim, essentially arguing that the Veteran’s fatal heart disability was linked to his service-connected PTSD, as the manifestations of his PTSD, for example being in a constant anxious state, led to a heart disability. Similarly, in November 2019 testimony, the appellant also testified that, after the Veteran separated from service, he developed hypertension which she believed was result of the stress of his service. However, there is no indication that the Veteran’s hypertension is related to his fatal heart disabilities, the Veteran was not service-connected for hypertension and there is no indication that his hypertension was related to his service. Moreover, to the extent that appellant and her representative seek to relate hypertension and/or a heart disability to the Veteran’s service-connected PTSD, in the absence of any medical opinion in support of a nexus or aggravation, such assertions are not competent (and not material) evidence, as they are laypersons, and are not shown to have the requisite expertise to provide an opinion on what is essentially a medical question. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence). The appellant and her representative’s additional statements, and hearing testimony, are cumulative of the previous assertion that the Veteran’s fatal heart disability was linked to his PTSD, whether directly or through hypertension. This additional evidence does not raise a reasonable possibility of substantiating the claim. Thus, as discussed above, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for the Veteran’s cause of death. In particular, there is no newly received evidence of in-service hypertension or a heart disability, evidence linking either of these disabilities to the Veteran’s active service or to his service-connected PTSD. The evidence does not otherwise substantiate any other element of service connection that was not already substantiated at the time of the prior final decision. Accordingly, the evidence received since the denial of the claim in September 2005 is not new and material, and reopening of the claim for entitlement to service connection for the cause of the Veteran’s death is not warranted. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.