Citation Nr: 21061706 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-27 482 DATE: October 5, 2021 ORDER The petition to reopen a previously denied claim of Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death (lung cancer) was denied in a March 2013 rating decision on the basis that the cause of death was not shown to be attributable to his military service or due to a service-connected disability. 2. The appellant did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period thereafter, and the March 2013 decision became final. 3. Since reapplying for the same benefit in March 2018, the appellant has not submitted evidence that relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria have not been met to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1953 to January 1955. He died in October 2011. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision that declined to reopen the previously denied claim of entitlement to DIC benefits based on the absence of new and material evidence. The appellant requested a personal hearing before the Board to offer testimony in support of this appeal. In June 2021, however, she withdrew that request in writing. Therefore, the Board will now proceed with a decision in this appeal. 38 C.F.R. § 20.704(e). The petition to reopen the previously denied claim of entitlement to DIC benefits is denied. Where, as here, a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the appellant argues that the pain medications that the Veteran took to treat his service-connected disabilities (degenerative joint disease of the bilateral shoulders and knees, and residuals of cold exposure to the bilateral lower and upper extremities, collectively rated as 100 percent disabling) "masked the onset of cancer" that ultimately caused his death. Appellant's statement, December 2011. The Board also acknowledges the history provided by the appellant that the Veteran was diagnosed with cancer 15 days prior to his death. Id. Her claim of entitlement to benefits on this basis was denied in March 2013. This determination was based upon a lack of competent evidence that the Veteran's lung cancer, the cause of his death as listed on the official Certificate of Death, was medically related to a service-connected disability or was otherwise attributable to the Veteran's military service. Although the appellant believes that identification and treatment of the Veteran's lung cancer could have been delayed due to pain medications the Veteran took for his service-connected disabilities, she is not competent in this case to provide an opinion regarding this issue, because the issue is medically complex, as it requires knowledge of the interaction between multiple body systems, the effect of medications, and the pathology of lung cancer. Therefore, it is outside the competence of the appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In the absence of other competent and credible evidence that the Veteran's lung cancer was attributable to the Veteran's service or a service-connected disability, the claim was denied. The appellant did not appeal the March 2013 rating decision, nor submit additional evidence within the applicable one-year time period, and that rating decision became final. 38 C.F.R. §§ 20.201, 20.202, 20.1103. Thus, new and material evidence is now required to reopen the claim. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Here, the appellant has not submitted any new evidence that was not previously considered in March 2013. She did submit a letter explaining that her husband was unaware of his potential eligibility for VA benefits for many years. See Appellant's statement, June 2021. While this is certainly regrettable, it is not relevant to the determination in the present appeal. The appellant has submitted no other evidence to show that a service-connected disability (or the medications used to treat such disability) was an immediate or underlying cause of the Veteran's death, or otherwise medically related to the cause of death, combined to cause death, or aided or lent assistance to the production of death in this case. In the absence of such new and material evidence, the claim is not reopened, and the appeal must be denied. 38 C.F.R. § 3.156. The denial of this claim can in no way diminish the honor and sacrifice of this Veteran's service for which the Board remains deeply grateful. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.