Citation Nr: 21039755 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-18 400A DATE: July 1, 2021 ORDER The petition to reopen the previously denied claim for service connection for the cause of the Veteran's death, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT 1. In a June 2003 decision, the Agency of Original Jurisdiction (AOJ) denied service connection for cause of death of the Veteran; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Evidence received since the June 2003 decision is new but not material it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The RO's June 2003 decision denying service connection for the cause of the Veteran's death is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. Evidence received since the June 2003 decision not new and material; accordingly, the claim of service connection for cause of the Veteran's death is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to July 1970. The Veteran died in July 1995. The Appellant in this case is the Veteran's surviving spouse. This appeal came to the Board of Veterans' Appeals (Board) on appeal from a May 2012 determination of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the appellant was scheduled for a hearing in connection with the present appeal in October 2018 and September 2019, but requested these hearings be postponed. An additional hearing was scheduled for February 2021, but the appellant did not appear. The hearing notification letter to the Appellant indicated that if she did not report for the scheduled hearing, the Board would consider her hearing request withdrawn. It also informed her that, if she failed to report for the hearing, she could file a motion for a new hearing date within 15 days after the date of her scheduled hearing, explaining why she did not report and why she could not submit a timely request for rescheduling. The appellant failed to show to the scheduled hearing, therefore the Board will proceed with adjudication of the appeal. 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for cause of death Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Wakeford v. Brown, 8 Vet. App. 239, 23940 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. Id. The Appellant seeks to reopen a previously denied claim for service connection for the cause of the Veteran's death. At the outset, the June 2003 rating decision denied the Appellant's claim for entitlement to service connection for the cause of the Veteran's death. The Appellant failed to timely file a notice of disagreement (NOD). Thus, the June 2003 rating decision became final. At the time of the June 2003 rating decision, the evidence of record consisted of the Veteran's service treatment records, a July 1995 death certificate, and lay statements from the appellant asserting that the Veteran's cause of death noted as gastric cancer was caused by active service to include exposure to herbicides. In the June 2003 rating decision, the AOJ explained that the evidence failed to show that the Veteran's gastric cancer onset during active service or was caused by exposure to herbicides. The AOJ also noted that gastric cancer was not one of the conditions that were presumptively associated with exposure to herbicides. The AOJ noted that there was no evidence to show that gastric cancer was caused or related to active service. Thus, the claim was denied. Since the June 2003 rating decision, the evidence associated with the claims file has been "new," but not "material" to the claim on appeal. Treatment records associated with the claims file after the June 2003 rating decision showed the Veteran had treatment for his diagnosed gastric cancer prior to his death in 1995. (Continued on the next page) The Board notes that the evidence associated with the record since the June 2003 rating decision is new, as it was not before the AOJ in June 2003, but it is not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. Specifically, the evidence consists of private treatment records showing treatment for gastric cancer prior to the Veteran's death in 1995. However, the Veteran's diagnosis of gastric cancer was on record during the June 2003 rating decision. The Appellant has also submitted statements that report her belief that the Veteran's gastric cancer was caused by his exposure to herbicide. Again, similar statements were of record and considered by AOJ in the June 2003 rating decision so these statements are cumulative. The Appellant also asserted that the Veteran's service-connected malaria caused his death. However, the Board notes that the Veteran was service-connected for malaria prior to the June 2003 rating decision and the AOJ considered that evidence in rendering its decision. Thus, while these statements and medical evidence are new, the evidence is cumulative, redundant of evidence considered by the AOJ in June 2003 and fails to raise a reasonable possibility of substantiating the claim. Accordingly, as the evidence received following the June 2003 rating decision is new but not material, the appellant's claim of service connection for cause of death of the Veteran is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.