Citation Nr: 20009656 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-08 518 DATE: February 5, 2020 ORDER New and material evidence having not been received, the appellant’s application to reopen the previously denied claim of entitlement to service connection for cause of death is denied. FINDING OF FACT The appellant’s claim was originally denied by a December 2011 rating decision. She did not timely appeal that decision and it became final. Evidence received since that decision, although new, is not material, and it does not relate to an unestablished fact necessary to substantiate the claim. It would not trigger VA’s duty to assist. CONCLUSIONS OF LAW 1. The December 2011 rating decision denying entitlement to service connection for cause of death is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1100. 2. Evidence received since the December 2011 rating decision is not new and material, and the appellant’s claim for entitlement to service connection for cause of death is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from February 1952 to October 1972. He passed away in January 2011. The appellant is his surviving spouse. In January 2013, the appellant’s agent submitted a new claim stating that the appellant wished to reopen her claim for service connection for cause of death, which was denied by a December 2011 rating decision, on the basis of clear and unmistakable error. The appellant’s agent advanced an argument that the RO failed in their duty to assist as “more emphasis should be put in securing the Veteran’s personnel file.” Failure to fulfill the duty to assist, as a matter of law, is not CUE. 38 C.F.R. § 20.1403(d)(2). Any claim of CUE must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). To present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Because the appellant did not claim, with specificity, that “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied;” the Board finds that the RO correctly adjudicated the appellant’s case as one requiring new and material evidence to reopen. Where there is a lack of specificity, a CUE claim cannot exist. Because the January 2013 correspondence clearly indicates that the appellant wished to continue her appeal, the RO was correct in requiring new and material evidence to reopen the previously denied claim. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for cause of death. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead whether the evidence could reasonably substantiate the claim, were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). The appellant originally filed a claim for service connection for cause of death in March 2011. A review of the Veteran’s claims file reveals that his cause of death was acute myelogenous leukemia. Significant conditions contributing to the Veteran’s death were: hypertensive arteriosclerotic heart disease and carcinoma of the prostate. A December 2011 rating decision originally denied the appellant’s claim for cause of death. The basis of the denial was that the evidence did not show that the Veteran’s service-connected conditions caused, aggravated, or hastened the death of the Veteran. Nor was the RO able to confirm service in the Republic of Vietnam. It is anecdotally worth noting that prior to his death, the Veteran sought service connection for prostate cancer. An October 2009 duty to assist letter was sent to the Veteran requesting that he provide evidence of any service he had within the Republic of South Vietnam. He did not provide any such evidence. Prior to its December 2011 rating decision, the RO also attempted to obtain evidence regarding any service in the Republic of South Vietnam from the appellant. At that time, the appellant’s current agent submitted a letter from the Veteran’s friend which stated: In 1968-69, I was stationed at Clark Air Base in the Republic of the Philippines with [the Veteran], though in different squadrons. Clark Air Base was a staging point for many going TDY (temporary duty) to Vietnam, Korea and Thailand. While there [the Veteran] was teaching youth and adult Judo classes on base. I know that [the Veteran] was sent TDY to Vietnam, because he asked me to teach the youth Judo classes while he was in Vietnam. As I can best recall, he was gone for three months. The RO considered this evidence prior to rendering its December 2011 rating decision. As noted above, although the Veteran had not provided any evidence of service in Vietnam during his lifetime, the RO sent a request in October 2009 requesting all of the Veteran’s service treatment records and service personnel records indicating any service in the Republic of Vietnam. The response provided was that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. Another request for the Veteran’s entire personnel file was made in September 2011. As indicated in the December 2011 rating decision, the Veteran’s service treatment records and personal records showed no indication of any TDY to South Vietnam. The appellant did not file a timely notice of disagreement to the December 2011 rating decision. As a result, the decision became final. Instead, in January 2013, as noted above, the appellant’s agent indicated disagreement with the December 2011 rating decision. Because this correspondence was not received within one year of the December 2011 rating decision, the RO was correct in requiring new and material evidence. The evidence received since the December 2011 is largely duplicative of the evidence of record at the time of that rating decision. The appellant’s agent resubmitted the statement submitted by M.C., and the Veteran’s death certificate. This evidence was previously of record and considered at the time of the prior denial. The only new evidence of record is the appellant’s hearing testimony. During her hearing, the appellant again reiterated that the Veteran flew in to Vietnam once. The appellant’s agent attempted to state “so, [the Veteran] was deployed to Vietnam, at least on one occasion, if not more than a couple of occasions. Right?” The appellant made clear that she could not confirm that the Veteran had deployed to Vietnam “if not more than a couple of occasions.” The appellant’s agent then sought to raise an alternative theory of entitlement. Specifically, he stated to the appellant “[the Veteran] was in the service at a very particular time in our history. Did he go to Nevada or view the atomic bomb testing stuff?”. The appellant responded “Yes. He went to – he was flown out there with the troops. And he kept always talking about it, but he said, oh yes. I did that. And I said, what do you mean you did that? And he said, well, you were flown out to the base and they were testing nuclear stuff.” For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this instance, the Board accepts the credibility of the appellant’s reports that the Veteran was flown out to the base where they were testing “nuclear stuff.” However, this evidence, by itself, does not relate to an unestablished fact necessary to substantiate the claim; nor would it raise VA’s duty to assist. Under McLendon, the VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In this instance, even assuming that the Veteran was at the base where they were testing “nuclear stuff,” there is no indication that his causes of death may be associated with him being on the base. Or, put differently, the third element of McLendon has not been established, such that VA’s duty to assist would be triggered. The appellant is competent to state that the Veteran was at the base where nuclear testing was being performed, but she has not stated, or provided any additional evidence indicating, that the Veteran was actually exposed to any type of nuclear waste/radioactive materials. She merely reported that he was at the base. That, by itself, is not material. The Board appreciates the appellant’s sincere belief that service connection for the cause of death is warranted. Unfortunately, because new and material evidence has not been received, the appellant’s application to reopen her previously denied claim of entitlement to service connection for cause of death must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.