Citation Nr: 20021328 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-41 459 DATE: March 25, 2020 ORDER Reopening of the issue of service connection for the Veteran’s cause of death is denied. FINDING OF FACT VA has not received previously unconsidered evidence since a final July 2010 rating decision that denied service connection for the Veteran’s cause of death that relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria for reopening the issue of service connection for the Veteran’s cause of death have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied reopening of the issue of service connection for the Veteran’s cause of death. The Appellant is the Veteran’s surviving spouse. She appeared at a hearing before the undersigned in January 2020. A transcript of the hearing is of record. The Board notes a March 2010 rating decision denied the Appellant’s initial claim of entitlement to service connection for the Veteran’s cause of death, after which she submitted additional evidence to support her claim. A July 2010 rating decision readjudicated the issue of service connection for the Veteran’s cause of death but again denied the claim. The Appellant failed to submit a notice of disagreement or new and material evidence within one year of notice of the July 2010 rating decision, so it is final. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.156(b), 20.1103. In September 2014, the Appellant submitted a request to reopen her previously denied claim. The Board acknowledges a February 2015 rating decision readjudicated the issue of service connection for the Veteran’s cause of death after considering the claim reopened, after which the Appellant submitted additional evidence resulting in the April 2015 rating decision that led to the present appeal; however, the issue of whether a previously denied claim should be reopened is a jurisdictional matter that must addressed by the Board before it can reach the merits of an underlying claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). (Continued on the next page)   A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing 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). 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. Id. The Court of Appeals for Veterans Claims (Court) has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. The March 2010 rating decision, and subsequent July 2010 rating decision that confirmed and continued the prior denial, denied service connection for the Veteran’s cause of death on the basis that there was no competent evidence linking the conditions that caused the Veteran’s death to an in-service disease or injury. Although VA has received additional treatment records that relate to the conditions that caused the Veteran’s death, these records do not include any indication the conditions that caused the Veteran’s death are the result of an in-service disease or injury. The Appellant has not even so much as identified the in-service disease or injury upon which her claim is based. Evidence of a nexus must go beyond the Appellant’s assertion that the conditions that caused the Veteran’s death are the result of service to even trigger VA’s duty to obtain an opinion regarding her claim. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (indicating a conclusory lay assertion of nexus is insufficient to entitle a claimant to provision of VA medical opinion). The Board recognizes the Veteran’s service records were first associated with the electronic claims file in September 2016, but these records were clearly of record at the time of the previous denials because the contents of the Veteran’s service records are explicitly referenced in detail in the “EVIDENCE” section of the March 2010 rating decision that initially denied the Appellant’s claim. Since VA has not received any previously unconsidered since the final July 2010 rating decision that relates to either the in-service disease or injury element or the nexus element required to establish service connection, the Board finds reopening of the issue of service connection for the Veteran’s cause of death is not warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.