Citation Nr: 21067011 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-48 191A DATE: November 3, 2021 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The July 2014 Board of Veterans' Appeals (Board) decision, which denied the Appellant's appeal to reopen the claim to entitlement to service connection for the Veteran's cause of death, became final, as the Veteran did not appeal the decision. 2. Since the July 2014 Board decision, the Veteran has not submitted any evidence that is new and material to raise a reasonable possibility of substantiating the claim for entitlement to service connection for the Veteran's cause of death. CONCLUSION OF LAW As evidence received since the July 2014 Board decision is not new and material, 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). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Air Force on active duty from May 1963 to May 1967. The Veteran died in December 2002. The Appellant is the Veteran's surviving spouse. The issue comes before the Board on appeal from a March 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a hearing before Veterans Law Judge (VLJ) Alibrando in December 2019. A transcript of the hearing has been included with the record. In April 2020, the Board sent a letter to the Appellant notifying her that the Video Hearing transcript was incomplete, due to audio malfunctions. The letter noted the Board could adjudicate the Appellant's claim based on the available appellate record. Additionally, the Board notified the Appellant of her opportunity to testify in a new hearing per 38 C.F.R. § 20.717. The letter informed the Appellant that if she did not respond within 30 days from the date of the letter, the Board would assume the Appellant did not want another hearing and proceed accordingly. The record is absent of the Appellant's response regarding another hearing on this matter. In March 2021, the Board sent the Appellant a letter informing her that VLJ Alibrando has since retired from the Board, and the Board reassigned her appeal to another VLJ. The letter noted that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. The Appellant notified the Board in April 2021 that she did not wish to appear at another Board hearing. The Board will consider the case on the evidence of record. The issue was previously before the Board in July 2021. The Board remanded the claim to the agency of original jurisdiction (AOJ) to provide the Appellant a supplemental statement of the case (SSOC). New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death The Appellant is seeking to reopen service connection for the Veteran's cause of death. After considering the evidence received since the July 2014 Board decision, the Board finds new and material evidence has not been received to reopen the Appellant's claim for service connection for the Veteran's cause of death. The record contains the Veteran's December 2002 death certificate listing the immediate cause of the Veteran's death as intracerebral hemorrhage. No additional underlying causes or conditions were listed as contributing to the Veteran's death. The Appellant submitted lay statements in support that the Veteran's cause of death was related to his exposure to Agent Orange. In a November 2015 statement, the Appellant wrote that the Veteran's military occupational specialty during his service in Thailand resulted in exposure to herbicide agents. The record reveals at the time of the July 2014 Board decision, the record included the Appellant's arguments that the Veteran was exposed to herbicides during his service in Thailand. Thus, the Appellant's contentions do not raise new theories of entitlement or new and material evidence linking the Veteran's immediate cause of death to his service in Thailand, to include exposure to herbicide agents. Further, the Appellant has submitted lay contentions that the Veteran's cause of death was related to health issues, including hypertension, type two diabetes mellitus, and an acquired psychiatric disorder, associated with the Veteran's active service. The Board again notes that, prior to the July 2014 Board decision, the record contained the Appellant's assertions and the Appellant's lay statements regarding the Veteran's hypertension, type two diabetes mellitus and an acquired psychiatric disorder. Thus, the Appellant's lay statements are cumulative and redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156. The Board acknowledges the statements submitted by the Appellant and the Veteran's children, noting the Veteran's observed symptoms, including anger and stress related to his active service. Additionally, the Board recognizes the lay statements noting the Veteran's pain and distress associated with the death of his brother and the Veteran's inability to attend the funeral service during active duty. Here, the Board notes the Appellant testified regarding the Veteran's mental state and observed behaviors during the January 2006 Board hearing noting the observable symptomatology of his previously claimed PTSD. Further, the Board recognizes the statements provided by the Veteran's children recalled statements from the Veteran regarding in-service stressors, including the traumatic violence experienced by the Veteran in active service. While the statements from the Veteran's children were submitted after the July 2014 Board decision, the record contains testimony from the Veteran, in May 1998, recalling the Veteran's claimed in-service stressors, as well as the Veteran's symptoms of PTSD, including nightmares and depressed mood, associated with the Veteran's claim of killing an enemy soldier during his tour of duty and the negative mental health symptoms associated with missing the funeral of the Veteran's brother. Moreover, the Board notes that, while the lay statements identifying the Veteran's observable symptoms of the Veteran's mental health condition were presented after the July 2014 final Board decision, the lay assertions of the Veteran's mental health conditions before his death do not relate to an unestablished fact that would not reasonably result in substantiation of the claim of service connection for the immediate or underlying causes of the Veteran's death. Here, the lay evidence of record submitted since the July 2014 final decision does not present evidence that the Veteran's death was etiologically related to service. The Board also notes the Appellant testified before the Board in a December 2019 hearing. Regrettably, the hearing transcript revealed moments in which the testimony of the Appellant and her representative was inaudible. However, as noted above, the Appellant was afforded an opportunity to an additional hearing and did not respond. Here, the Board notes the Appellant's lay contention, raised in the hearing, that the Veteran's mental health issues contributed to the cause of the Veteran's death. However, as the Appellant's statements in the hearing contained the previously asserted theories of entitlement to service connection, the Board notes that the hearing transcript does not present any new or material evidence needed to substantiate the Appellant's claim to service connection for the cause of the Veteran's death. The Appellant did not submit any new and material medical evidence since the July 2014 Board decision. A review of the record reveals the Appellant submitted a February 1997 medical opinion, provided by the Veteran's private treating physician. Here, the Board notes the February 1997 private medical statement was originally included in the claims file in March 1997. Further, the Board acknowledges the Appellant's contentions and evidence submitted by the Veteran's representative in the September 2021 Informal Hearing Presentation (IHP). Notably, the September 2021 IHP raised the Veteran's possible in-service exposure to herbicide agents, as the Veteran noted that he visited the Republic of Vietnam during his tour of service in Thailand. Here, the record shows that consideration of the Veteran's travel to Vietnam occurred prior to the July 2014 final Board decision, as the April 2014 IHP raised the same contention. Additionally, the September 2021 IHP contains the same cited National Institutes of Health medical literature, offered as medical evidence in April 2014. Accordingly, the Board finds that statements offered by the Appellant's representative do not constitute new and material evidence or newly raised contentions of a new theory of entitlement. Thus, the Board finds that the additional lay and medical evidence received since the July 2014 Board decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). The Board acknowledges the language of 38 C.F.R. § 3.156(a) creates a low threshold to enable reopening previously final claims. See Shade, 24 Vet. App. at 117. However, even under this low standard, the evidence submitted since the July 2014 Board decision is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Moreover, the Appellant's submitted evidence does not trigger VA's duty to assist, as there has been no material evidence that the Veteran's disabilities were service-connected, or that the Veteran's intracerebral hemorrhage was etiologically related to active duty. Accordingly, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (holding the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, Associate 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.