Citation Nr: 21061579 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-50 227 DATE: October 4, 2021 ORDER New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The claim of entitlement to nonservice-connected burial expenses is denied. REMANDED The claim of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 is remanded. FINDINGS OF FACT 1. In a June 2014 rating decision, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appellant did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 2. Evidence received since the June 2014 rating decision is not material, and it does not address the unestablished nexus element from the June 2014 rating decision. 3. The appellant filed a claim for nonservice-connected burial expenses initially within two years of the Veteran's passing, and the Regional Office granted entitlement to nonservice-connected burial benefits in the sum of $300. This is maximum amount allowable where a veteran's death is not related to service. 4. The appellant filed a second claim of entitlement to nonservice-connected burial expenses in June 2016, more than two years after the Veteran's passing. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for nonservice-connected burial benefits in excess of $300 are not met. 38 U.S.C. §§ 101, 2302, 2303, 2402, 5107; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from August 1980 to September 1982. The Veteran passed away in April 2014, and the appellant, his surviving spouse, filed the instant claims. This case is on appeal from June 2016 and August 2016 decisions. While the appellant requested a videoconference hearing before a Veterans Law Judge, she withdrew this request in a June 2021 correspondence. As such, adjudication may proceed on the merits. 1. The claim of entitlement to service connection for the cause of the Veteran's death Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. DIC is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In the present case, the Regional Office denied entitlement to service connection for the cause of the Veteran's death in June 2014. The Veteran passed away from a self-inflicted gunshot wound with no other contributory causes listed on the death certificate. There was no evidence indicating that a mental condition manifested during or within one year of service. There was no medical evidence indicating that a service-connected disability caused or contributed to the Veteran's death. Accordingly, the nexus element for cause of death purposes remained unestablished, and the Regional Office denied entitlement to these benefits. Additional evidence was not received within one year of the denial, nor were new service records associated with the claims file after the denial. Accordingly, the June 2014 rating decision is final. Since that rating decision, the appellant provided lay statements regarding the Veteran's mental state prior to his passing, as well as receipts pertaining to the payment of funeral costs. The appellant additionally provided a portion of the Veteran's medical record indicating that he and his treating clinicians created a Safety Plan due to his history of suicide attempts around January 2014. This evidence, while new, is not material for the purposes of reopening this claim as it does not raise a reasonable possibility of substantiating the claim. The Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD) was denied in June 2014, and the appellant did not timely appeal this determination. Thus, that rating decision became final. Additionally, the new evidence provided by the appellant does not addressed the unestablished nexus element with service as required for service connection for cause of death. This evidence does not indicate that the Veteran's service-connected asthma was a principal or contributory cause of his death. This evidence additionally does not address any relationship between the Veteran's mental state and his military service. Service treatment records are silent with respect to mental health concerns or stressors. Furthermore, the appellant has not shown that she is competent to render a medical opinion relating the Veteran's cause of death to his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that the evidence provided by the appellant following the June 2014 denial of entitlement to service connection for cause of death is not material for the purposes of reopening the claim as it does not raise a reasonable possibility of substantiating the claim. Accordingly, the petition to reopen is denied. 2. The claim of entitlement to nonservice-connected burial expenses The appellant asserts entitlement to nonservice-connected burial benefits in excess of $300. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the current regulations (38 C.F.R. §§ 3.1600 through 3.1612), and it replaced them with new §§ 3.1700 through 3.1713; see also 79 Fed. Reg. 32653. Applicable here, as the present claim was filed in June 2016, the new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705. That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. As with the old regulation, burial allowance is also warranted for a veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. In the present case, the Veteran passed away in April 2014. The appellant received $300 for nonservice-connected burial benefits pursuant to a June 2014 decision. The appellant filed a second application for these benefits in June 2016, more than two years after the Veteran's passing. The appellant argues that she is entitled to additional funds given some previous issues with demonstrating who paid for the Veteran's funerial costs. She seeks to reopen this claim, and her Substantive Appeal appears to acknowledge receipt of the $300 paid in 2014. The Board is sympathetic to the appellant, but is nonetheless constrained by the law to deny her appeal for VA burial benefits. In that regard, 38 C.F.R. § 3.1703 states clearly that "VA must receive a claim for the non-service-connected burial allowance no later than 2 years after the burial of the veteran." 38 C.F.R. § 3.1703(b) creates a limited exception to the aforementioned time limit for instances where an application's timeliness was affected because a correction of the character of the veteran's discharge was necessary before the application could be filed. That exception is not applicable in this case. Furthermore, the appellant already received $300 in nonservice-connected burial benefits. This is maximum amount allowable where a veteran's death is not related to service. See 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1705(a), 3.1706(a). Indeed, the controlling laws and regulations provide no exceptions that may be applied to the facts of this case. The appellant's second application for VA burial benefits was untimely, and she is already in receipt of the maximum allowable benefits in this case. The evidence does not present any facts that trigger a legally recognizable exception to the timeliness requirement under 38 C.F.R. § 3.1703(a). Therefore, this appeal must be denied as a matter of law. REASONS FOR REMAND 1. The claim of entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151 is remanded. Compensation under this Chapter and Dependency and Indemnity Compensation under Chapter 13 of this Title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and - (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. VA regulations provide that to determine whether a veteran has an additional disability VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). In the present case, the Veteran sought mental health services within one year of his passing, including inpatient hospitalization for acute care due to the severity of his condition. Unfortunately, it does not appear that the Veteran's complete VA treatment records were obtained prior to adjudication of this issue. Prior to his passing, the Veteran reported obtaining treatment at Beckley VA Medical Center for PTSD. The notes from this facility, however, were only five pages long. One of the Veteran's mental health clinicians references his inpatient treatment in February 2012, but no notes have been obtained with regard to that hospitalization. In June 2017, the appellant provided an excerpt of these records indicating that the Veteran entered into a Safety Plan with his mental health clinicians due to acute symptoms just months prior to his suicide. At that time, he was noted to be high risk for suicide. No other records have been obtained. Thus, remand is necessary in order to obtain a complete copy of the Veteran's VA treatment records prior to his passing. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the appellant should be documented in the record. 2. Based upon the findings of the previous development, conduct any additional evidentiary development as indicated. 3. Readjudicate the remaining issue on appeal. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.