Citation Nr: 21041047 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 16-55 582 DATE: July 8, 2021 ORDER The petition to reopen the claim of service connection for the cause of the Veteran's death ("Dependency and Indemnity Compensation" or "DIC") is granted. REMANDED The issue of service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. In March 1992, the Board denied service connection for the cause of the Veteran's death and the Appellant was informed in writing of the adverse determination. There was no motion submitted for reconsideration or a motion to revise the decision based on clear and unmistakable error. 2. The evidence submitted since the March 1992 Board decision is new and raises a reasonable possibility of substantiating the Appellant's claim of service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The March 1992 Board decision that denied service connection for the cause of the Veteran's death is final. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105. 2. New and material evidence sufficient to reopen the claim of service connection for the cause of the Veteran's death has been presented. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from May 1969 to October 1970, to include service in the Republic of Vietnam. He died in 1990 and the Appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Philadelphia, Pennsylvania Regional Office (RO). In her November 2016 substantive appeal, the Appellant requested a Board hearing and it was scheduled in June 2019. In a June 2019 statement, the Appellant withdrew her request for a Board hearing. 38 C.F.R. § 20.704(e). Reopening Cause of the Veteran's Death Generally, a claim that has been denied in an un-appealed Board decision is final and may not 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, VA generally presumes the newly submitted evidence is credible. Justus v. Principi, 3 Vet. App. 510 (1992). The new 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 March 1992, the Board found that as to the Veteran's posttraumatic stress disorder (PTSD), there was no credible supporting evidence that the Veteran's claimed in-service stressor had occurred and no probative evidence of a nexus between the Veteran's then-current PTSD symptoms and an in-service stressor. As to the Veteran's other psychiatric disorders, there was no probative evidence of a nexus relating those disorders to his service in Vietnam. The evidence in March 1992 included service treatment records (STRs), military personnel records (MPRs), an August 1972 VA examination, an April 1976 letter from a non-VA examiner, a July 1976 statement from the Veteran's mother, a September 1978 statement from the Veteran, a June 1987 non-VA treatment record, a March 1988 VA examination, a February 1991 letter from a non-VA examiner, a November 1991 statement from the Veteran's friend, the January 1992 Board hearing transcript, PTSD diagnostic criteria from an unknown version of the Diagnostic and Statistical Manual of Mental Disorders, photographs of the Veteran's Vietnam memorabilia, and the Veteran's death certificate. STRs do not show complaints or contemporaneous reports concerning the Veteran's psychiatric disorders. MPRs reflect that the Veteran arrived in Danang on February 5, 1970 and participated in combat operations in Vietnam from February 6, 1970 to February 28, 1970. In the Veteran's October 1970 pre-separation medical examination report, the examiner noted no psychiatric abnormalities. During an August 1972 VA examination that did not focus on the Veteran's psychiatric disorders, the examiner noted no psychiatric abnormalities. An April 1976 non-VA examiner did not indicate having treated the Veteran for a psychiatric disorder. In a July 1976 statement, the Veteran's mother did not indicate having witnessed the Veteran experience psychiatric symptoms. In a September 1978 statement, the Veteran reported having misgivings about his service in Vietnam. A June 1987 non-VA treatment record reflects the Veteran had psychiatric treatment for three weeks and that he was diagnosed with major depression. During a March 1988 VA examination, the Veteran reported experiencing depression since 1981 and denied experiencing any significant psychiatric trouble related to service. The Veteran was diagnosed with adjustment disorder with mixed emotional features and moderate psychosocial stressor. The Veteran's death certificate noted a gunshot wound to the head as the immediate cause of death. In her January 1990 VA Form 21-534, Application for DIC, the Appellant asserted that the Veteran's immediate cause of death resulted from PTSD related to service. The February 1991 non-VA examiner indicated having treated the Veteran for "classic PTSD with suicidal depression" and that the Veteran's service in Vietnam was a "vital proximate cause of the devastatingly painful and immobilizing illness from which he never fully recovered." In a November 1991 statement, the Veteran's friend reported he knew the Veteran for twenty years and that the Veteran was emotionally isolated as a result of his service in Vietnam. During a January 1992 Board hearing, the Appellant testified that she saw the Veteran having psychiatric trouble after separation. The Appellant was informed of this decision and apprised of her appellate rights but the Appellant did not file a motion for reconsideration or a motion to revise the decision based on clear and unmistakable error. Therefore, the March 1992 Board decision became final. 38 C.F.R. § 20.1100. In February 2015, the Appellant asked to reopen the claim. In a November 2017 evaluation, a non-VA examiner opined that the Veteran's PTSD and major depression were caused by his service in Vietnam, and those PTSD symptoms were triggered by a work-related event. In a June 2019 evaluation, a non-VA examiner opined that the Veteran's symptoms, to include anger, irritability, depression, hypersensitivity, and chronic sleep impairment were related to his in-service combat stressor and that his major depressive disorder was caused by service. Presuming credibility, the evidence raises a reasonable possibility of substantiating the claim because the June 2015 rating decision denied reopening the claim due to the Appellant not having submitted new and material evidence of a link between the Veteran's PTSD symptoms and an in-service stressor, and as to whether the Veteran's other acquired psychiatric disorders were caused by service. The lack of a connection between the Veteran's PTSD symptoms and an in-service stressor, and the lack of a nexus between the Veteran's major depressive disorder and combat service in Vietnam were the specific reasons the claim was last denied. The non-VA examiners' opinions are new and relate to an unestablished fact a link and/or nexus that is necessary to substantiate the Veteran's claim. Therefore, the claim of service connection for the cause of the Veteran's death is reopened. REASONS FOR REMAND The matter is remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The record is unclear about the status of the Appellant as a proper claimant because of her marital status. Under 38 C.F.R. 3.55(a)(3), remarriage of a surviving spouse is not a bar to DIC if on or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment. The Veteran and Appellant married in April 1972 and the marriage was terminated in 1990 as evidenced by a marriage and death certificate in the claims file. In her VA Form 21-534, Application for DIC, the Appellant reported having remarried in June 2001 and divorced in September 2010; however, there is no documented evidence of the Appellant's June 2001 marriage and September 2010 divorce in the claims file. In the June 2015 rating decision on appeal and in the September 2016 statement of the case, the RO denied reopening the claim of service connection for the cause of the Veteran's death. When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). THE REMAND DIRECTIVES FOLLOW. 2. Notify the Appellant to submit documented evidence of her June 2001 marriage and September 2010 divorce. (CONTINUED ON NEXT PAGE) 3. Readjudicate the claim of service connection for the cause of the Veteran's death. If the benefit sought on appeal remains denied, the Appellant should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Associate Counsel The Board's action is binding only with respect to this matter and is not precedential - it does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.