Citation Nr: 21070516 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-02 914 DATE: November 24, 2021 ORDER The petition to reopen the claim of service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. In June 2011, VA denied the claim of service connection for the cause of the Veteran's death. The Appellant was informed in writing of the adverse determination and her appellate rights but did not submit a substantive appeal. 2. The evidence submitted since the June 2011 rating decision does not relate to an unestablished fact necessary to substantiate the Appellant's claim of service connection for the cause of the Veteran's death or that is more than cumulative or redundant of that previously considered. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied the claim of service connection for the cause of the Veteran's death is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for the cause of the Veteran's death has not been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1965 to June 1972, to include service in the Republic of Vietnam. His military decorations include the Combat Infantryman's Badge. He died in 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Houston, Texas Regional Office (RO). In July 2021, the Appellant was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Appellant toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Reopening Service Connection for the Cause of the Veteran's Death Generally, a claim that has been denied in an un-appealed RO decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed unless it is inherently or patently not credible. Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In June 2011, the RO denied the claim of service connection for the cause of the Veteran's death. The RO found no continuous cohabitation between the Appellant and Veteran. In July 2011, the Appellant submitted a notice of disagreement. In a December 2012 rating decision, the RO found that the Appellant and Veteran continuously cohabitated. However, in a December 2012 statement of the case (SOC), the RO denied service connection for the cause of the Veteran's death due to a lack of nexus between the Veteran's active duty service and conditions listed on his death certificate. The evidence in June 2011 included service treatment records (STRs), military personnel records (MPRs), the Veteran's death certificate, the Appellant's and Veteran's marriage certificate, and statements from the Appellant and her children. The Veteran's death certificate shows the immediate cause of death was acute respiratory failure due to pneumonia and chronic obstructive pulmonary disease (COPD), emphysematous type. The certificate also shows human immunodeficiency virus positive (HIV) as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of the Veteran's death, service connection was not in effect for pneumonia, COPD, or HIV. MPRs reflect that the Veteran served in the Republic of Vietnam from November 1965 to November 1966. STRs do not show complaints or contemporaneous reports pertaining to trouble breathing. In the Veteran's February 1971 service medical examination report, the service medical examiner noted no lung abnormalities and a chest radiograph revealed "no significant abnormalities." In the Veteran's April 1972 pre-separation medical examination report, the service medical examiner noted no lung abnormalities. In his April 1972 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had shortness of breath. The marriage certificate reflects a valid marriage conducted in August 1986 under the laws of Texas. In an April 2011 statement, the Appellant asserted that the Veteran was "diagnosed with Agent Orange Chemical" and underwent treatment in 1985. Statements from the Appellant's children pertain to continuous cohabitation between the Veteran and Appellant. The Appellant was informed of this decision and apprised of her appellate rights. As noted, the Appellant submitted a notice of disagreement and an SOC was issued. However, the Appellant did not submit a substantive appeal, and therefore, did not perfect her appeal. Therefore, the June 2011 rating decision became final. 38 C.F.R. § 20.1103. The evidence received since the June 2011 rating decision includes the Appellant's September 2016 petition to reopen the claim; VA treatment records reflecting a diagnosis of pneumonia; and a February 2017 informal hearing transcript and July 2021 Board hearing transcript reflecting the Appellant's testimony that the Veteran was treated for lung cancer prior to his death, the Veteran's pneumonia and COPD was caused by exposure to Agent Orange, and the Veteran solely received VA medical treatment and at no other non-VA medical facilities or providers. The issue as to an in-service event, injury, or disease and current disability is presumed established as the MPRs show that the Veteran served in the Republic of Vietnam and is presumed exposed to Agent Orange. Additionally, VA treatment records show a diagnosis of pneumonia and the Veteran's death certificate lists the immediate cause of death as acute respiratory failure due to pneumonia and COPD. The disputed issue is nexus and the lack of a nexus between the Veteran's presumed exposure to Agent Orange and respiratory disorders was the specific reason the claim was last denied. The Appellant testified that the Veteran was treated for lung cancer and that the Veteran only underwent medical treatment at a VA medical center and at no other non-VA medical facilities or providers. The Veteran's VA treatment records range from September 2001 to June 2009 and there is no mention of treatment for and/or a diagnosis of lung cancer. The VA treatment records reflect the Veteran's report that his brother died of lung cancer. The credibility of the Appellant's testimony that the Veteran had treatment for lung cancer is not presumed because the Appellant testified that the Veteran only underwent VA medical treatment and the VA treatment records do not show treatment for and/or a diagnosis of lung cancer. Duran v. Brown, 7 Vet. App. 216 (1994) (holding that the credibility of newly submitted evidence is presumed unless it is inherently or patently not credible). Further, the Appellant's assertion that the Veteran's pneumonia and/or COPD were caused by his exposure to Agent Orange provides no basis for reopening the claim because such lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim pertaining to a medical matter that cannot be established by lay evidence. Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211, 214 (1993). The lack of a nexus was the specific reason the claim was last denied. The Appellant has not presented new and material evidence to reopen her previously denied claim of service connection for the cause of the Veteran's death. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.