BVA9504877 DOCKET NO. 91-03 966 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for the cause of the veteran's death. 2. Whether new and material evidence has been submitted to reopen the claim of a total rating based on individual unemployability due to service-connected disabilities for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The appellant is the veteran's surviving spouse. The veteran had active military service from September 1952 to June 1954. This appeal arises from February and July 1989 determinations of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's service-connected combat wound residuals, consisting of right above-the-knee amputation and left thigh injuries, were either the principal or a contributory cause of his death. She asserts that with resolution of reasonable doubt the veteran's fatal, bone cancer started with osteomyelitis (due to Proteus organisms) that was present in 1953 when the veteran's leg was amputated, that the cancer spread from the amputation site to the prostate, the lumbar vertebrae and the pubic bones, that cancer eventually affected kidney function and that the veteran never fully recovered from his combat wounds, rendering him cachectic and susceptible to cancer. In support of her claim, she relies on statements from S. D. Yim, M.D., and N. M. Payawal, M. D. It is argued that 38 C.F.R. §§ 3.303 (principles relating to service connection), 3.304 (direct service connection, including the provision pertaining to combat service) and 3.310 (secondary conditions) apply. As for a total rating based on individual unemployability for the purpose of accrued benefits, the appellant contends that the veteran was frequently hospitalized and quit his job because of service-connected disabilities. She offers as proof of the veteran's inability to work, nursing notes, dated from April 1984 to July 1985. DECISION OF THE BOARD In accordance with 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material in the claims file and for the following reasons and bases, the Board decides that new and material evidence has not been presented or secured to reopen the claims for service connection for the cause of the veteran's death and for a total rating based on individual unemployability due to service-connected disabilities for the purpose of accrued benefits. FINDINGS OF FACT 1. In a May 1987 rating decision, the RO last denied on the merits the claim of service connection for the cause of the veteran's death; after the appellant was furnished the statement of the case, she did not perfect her appeal as she did not file a substantive appeal. 2. The evidence presented or secured since the May 1987 rating decision by the RO does not tend to show that cancer of the prostate with bony metastasis and chronic renal failure were related to service and thereby the principal cause of death on the basis of direct, presumptive or secondary service connection or that the adjudicated service-connected disabilities were a contributory cause of the veteran's death. 3. In a May 1987 rating decision, the RO last denied on the merits the claim of a total rating based on individual unemployability for the purpose of accrued benefits; after the appellant was furnished a statement of the case, she did not perfect the appeal of this issue. 4. For the purpose of accrued benefits, the evidence presented or secured since the May 1987 rating decision by the RO does not tend to show that the adjudicated service-connected disabilities, combat wound residuals involving the lower extremities, alone prevented the veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The May 1987 rating decision, denying the claim of service connection for the cause of the veteran's death, became a finally adjudicated claim. 38 C.F.R. §§ 3.104(a), 3.160(d) (1994). 2. The evidence presented or secured since the May 1987 rating decision by the RO is not new and material to reopen the claim of service connection for the cause of the veteran's death. 38 U.S.C.A. § 5108 (West 1991). 3. The May 1987 rating decision, denying the claim of a total rating based on individual unemployability due to service- connected disabilities for the purpose of accrued benefits, became a finally adjudicated claim. 38 C.F.R. §§ 3.104(a), 3.160(d) (1994). 4. The evidence presented or secured since the May 1987 rating decision by the RO is not new and material to reopen the claim of a total rating based on individual unemployability due to service-connected disabilities for the purpose of accrued benefits. 38 U.S.C.A. §§ 5108, 5121 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Whether New and Material Evidence has been Submitted to Reopen the Claim of Service Connection for the Cause of the Veteran's Death. Factual Background The evidence of record at the time of the May 1987 rating decision is summarized as follows. The service medical records disclose that on pre-induction examination in February 1952 the veteran weighed 136 pounds. In June 1953 in North Korea the veteran was wounded in action by a mine. The injuries included compound, comminuted fractures of the right femur and right tibia and multiple wounds of the left lower extremity without fracture. The fracture wounds were complicated by osteomyelitis due to Proteus organisms that led to amputation at the middle third of the right femur. On transfer to a VA hospital in May 1954, the veteran was described as well nourished. There was no evidence of osteomyelitis from the amputation site. There were multiple scars over the anterior surface of the left leg that were well healed and nontender without drainage. In a July 1954 rating decision, the RO granted service connection for the wound residuals of the lower extremities and assigned a 100 percent, prestabilization rating. The veteran was also awarded special monthly compensation for anatomical loss of the right foot. VA medical records disclose the following relevant facts: Except for positive oral and dental findings and the amputation stump, physical examination was within normal limits and the veteran's weight was 125 pounds during hospitalizations, beginning in November 1954 and January 1955, for fitting of a prosthetic leg and training in its use; he had no phantom pain or other symptoms relative to the amputation stump (January 1955 examination); and, the amputation stump was well healed and the left thigh disability was asymptomatic (August 1955 examination). In an August 1955 rating decision, the service-connected wound residuals were separately rated as follows: a 60 percent rating for amputation of the middle third of the right thigh and a noncompensable rating for wound residuals of the left thigh. During the veteran's lifetime, these ratings were confirmed and continued unchanged. Additional VA medical records disclose that: The veteran was treated for left leg cellulitis due to an unknown organism (February/March 1959 hospitalization); and, he complained of left knee pain and swelling; X-ray evidence of a metallic fragment in the soft tissue of the right thigh (September 1979 examination). Reports of private medical treatment show that in December 1978 the veteran was treated for a right intertrochanteric fracture (Wilson Memorial Hospital) and in June 1979 for left knee pain (E. P. Sparks Jr., M.D.). A VA hospital summary discloses that, in September 1980, the veteran presented with a 25 day history of urinary frequency and nocturia and a 10 pound weight loss over a few months. On examination he appeared thin and healthy. The prostate was hard and enlarged. An intravenous pyelogram (IVP) showed an enlarged bladder with bilateral hydroureteronephrosis due to prostatic enlargement and bladder neck obstruction. A biopsy of the prostate revealed adenocarcinoma and a bone scan was consistent with metastatic disease. The diagnosis was adenocarcinoma of the prostate, stage D. Reports of VA medical treatment, February 1981 to August 1982, show that the veteran was being followed in the Genitourinary clinic for cancer of the prostate. In February 1981, an IVP revealed that the left kidney was normal and the right kidney was dilated. An August 1982 bone scan revealed abnormalities in some of the thoracic and lumbar vertebrae and the right pubis bone that was consistent with metastatic disease and unchanged as compared to an October 1981 study. A VA hospital summary shows that in January 1984 the veteran was admitted for treatment of cancer of the prostate with bilateral hydroureteronephrosis. He was known to have bony metastasis to the dorsal (thoracic) and lumbar segments of the spine. He complained of lower back and pubic bone pain. A review of systems was essentially normal except for the history of cancer and back pain and stiffness. Physically, the veteran was poorly nourished and in moderate distress because of back and pelvic bone pain. A renal scan revealed bilateral hydronephrosis. The diagnoses were carcinoma of the prostate, stage D, renal failure and malnutrition. VA progress notes, dated November 22 and 23, 1984, show that the veteran was on an IV and urethrostomy bag. A copy of the death certificate shows that the veteran died in August 1985 while an inpatient at a VA hospital. The immediate cause of death was carcinoma of the prostate with bony metastases with an approximate onset one year prior to death. Chronic renal failure was listed as a condition contributing to death. No autopsy was performed. In September 1985, the appellant filed an application for compensation, claiming that the cause of the veteran's death was due to service. In a September 1985 rating decision, the RO denied the appellant's claim of service connection for the cause of the veteran's death on the grounds that the veteran's death was not due to service-connected disability. After notice of the denial was sent to the appellant, the RO construed a January 1986 letter by the appellant as the notice of disagreement. In a May 1987 rating decision, after considering additional evidence the RO denied the claim of service connection for the cause of the veteran's death on the merits. The RO decided that the veteran's death was caused by carcinoma of the prostate with bony metastasis and chronic renal failure, that the diseases were not evident during service or during the one-year presumptive period, that the diseases were not due to service-connected disabilities and that the service-connected disabilities did not contribute to the cause of the veteran's death. The additional evidence consisted of the veteran's DD-214, revealing that he was separated from service due to permanent disability, and VA medical records, disclosing these relevant facts: A biopsy of the prostate was diagnosed as adenocarcinoma of the prostate gland (August 1980 pathological report); slight change in the kidneys from a September 1980 IVP (November 1980 and April 1983 IVP studies); re-evaluation of kidney function and bone metastases (October 1981 hospitalization); increased intensity in lesions in the lumbar and thoracic vertebrae and the right pubic ramus (May 1983 bone scan); the veteran was cachectic when treated for renal failure -- history included acute renal blockage due to invasion of the cancer of the prostate in January 1984 (August 1984 hospital summary); treatment of a small bowel obstruction (January/February 1985 hospitalization); progress notes primarily of the Genitourinary Clinic pertaining to cancer of the prostate and kidney function (October 1980 to July 1985); and, rehospitalization as the veteran was unable to care for himself and succumbing to chronic illness -- the diagnoses were Stage B adenocarcinoma of the prostate, chronic renal failure due to cancer of the prostate and a right upper lobe lung lesion (July/August 1985 hospital summary). After the appellant was furnished a statement of the case she did not perfect her appeal as she did not file a substantive appeal and the decision became final. In October 1988, the appellant sought to reopen the claim of service connection for the cause of the veteran's death. Analysis Pursuant to 38 U.S.C.A. § 7105(c) (West 1991), when a claim is denied by a decision of the RO and the claimant fails to perfect the appeal, that decision becomes final and the claim may not thereafter be reopened or allowed, except as may otherwise be provided by regulation not inconsistent with Title 38, United States Code. In a precedent opinion of the United States Court of Veterans Appeals (Court), Suttmann v. Brown, 5 Vet.App. 127, 135-136 (1993), the Court concluded that the finality rule in Section 7105(c) is subject to the exception in 38 U.S.C.A. § 5108 (West 1991), that requires the Secretary (of VA) to reopen and readjudicate a claim when "new and material evidence" is presented or secured with respect to that claim. To reopen a previously and finally disallowed claim, the Board must conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior disallowance of the claim is "new and material". Second, if the evidence is new and material, then the case is reopened and the Board must evaluate the claim in light of all the evidence, both new and old. New evidence is that which is not merely cumulative of other evidence of record or repetitious of evidence already of record. If the evidence is not new, there is no need to determine whether the evidence is material. Material evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 90 (1993). In determining whether the evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet.App. 510, 512-513 (1992). All the evidence since the last final denial on the merits is to be considered. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). In denying the appellant's claim on the merits in May 1987, the RO decided that carcinoma of the prostate with bony metastasis and chronic renal failure were not evident during service or during the one-year presumptive period, that the diseases were not due to service-connected disabilities and that the service- connected disabilities did not contribute to the cause of the veteran's death. In seeking to reopen the claim, the appellant would have to produce new and material evidence bearing either on direct, presumptive, or secondary service connection for cancer of the prostate with bony metastasis and chronic renal failure or tending to show that service-connected disabilities contributed to the cause of veteran's death. The evidence added to the record since the May 1987 rating decision by the RO includes the following: copies of service medical records; a copy of the veteran's DD-214; a copy of the death certificate; a copy of the December 1978 report of Wilson Memorial Hospital; a copy of the September 1979 report of VA examination; copies of VA progress notes of the Genitourinary Clinic (August 1981 to April 1983); copies of IVP studies by VA in November 1980, February 1981 and April 1983; copies of bone scans by VA in August 1982 and May 1983; and, copies of VA hospital summaries or other clinical records for admissions in November 1954, January 1955, February 1959, September 1980, October 1981, January 1984, August 1984 and July 1985. None of which is new evidence as it is repetitious of evidence already of record when the claim was denied in May 1987. Copies of January and February 1979 X-ray reports from Wilson Memorial Hospital are cumulative of the December 1978 hospital report. Copies of VA bone scans (September 1980 and an October 1981) with findings consistent with metastatic disease in the thoracolumbar spine are cumulative as the same facts have been established by evidence previously considered, namely, the September 1980 VA hospital summary and the August 1982 VA bone scan study. Copies of records pertaining to VA hospitalization beginning in January 1984 are cumulative as the relevant facts were presented in the hospital summary previously considered, i.e., the veteran was admitted for treatment of cancer of the prostate with bony metastasis and bilateral hydroureteronephrosis. The associated nephrology consultation report, disclosing impressions that the obstructive uropathy was secondary to prostatic cancer with metastasis and cachexia as probably secondary to the metastatic process opposes rather than supports the claim that the renal condition and cachexia were due to service-connected wound residuals. A copy of a November 1984 VA hospital summary, disclosing that the veteran was admitted for dehydration, and the interim summary of the July 1985 VA hospitalization, disclosing supportive care for terminal cancer, are cumulative as they represent the continued decline in the veteran's health that was first clearly shown in the January 1984 VA hospital summary, previously of record. The appellant's testimony at a December 1989 hearing that the veteran's cancer started in service with osteomyelitis due to Proteus organisms, while new, it is not material as a lay person is not competent to offer a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Her testimony that the cancer of the prostate was operated on in 1980 is cumulative as that fact was already established by the September 1980 VA hospital summary. And her testimony that a doctor told her that the veteran had bone cancer in his shoulders and fractured hip, while new, it is inherently unreliable. See Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12, 1994) (holding that the connection between the layman's account of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence to render the claim well grounded, i.e., a plausible claim -- a lower threshold than the standard for materiality of the evidence) reconsideration granted on other grounds (Oct. 21, 1994) (per curiam). While the three lay statements from friends of the veteran since the 1940s, dated in January 1990, are new as to the observed changes in his health, i.e., health slowly deteriorated...from his injuries (J.B.), he never gained any weight back (M.F.), and his nerves were in terrible condition, he was terribly thin [and] in constant pain (L.A.), they are not material as to medical causation or medical diagnosis in relating the service-connected disabilities to cancer of the prostate or renal failure or as contributing to the cause of the veteran's death as lay statements do not provide probative evidence of such relationships. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (stating that a lay person can certainly provide an eye- witness account of a veteran's visible symptoms, however, the capability of such a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge such as a diagnosis as to the cause of a veteran's death). Copies of service medical records, consisting of a July 1953 operation report and report of separation examination with clinical summary, dated in March 1954, are cumulative of the service medical records previously considered. Copies of nursing notes from March 1984 to August 1985 are cumulative of the VA hospital summaries during the same time period, disclosing that the veteran was chronically ill. A copy of a corrected death certificate shows that the interval between onset and death was five years. This evidence is also cumulative as the August 1980 pathology report first documented cancer of the prostate five years before the veteran died. In a January 1990 opinion, Simon D. Yim, M.D., a practitioner of adult and pediatric urology, stated that there is no direct causal connection between osteomyelitis of the leg and adenocarcinoma of the prostate and that bony metastasis in multiple sites of the body discovered at the time the diagnosis of adenocarcinoma was made appeared to be typically osteoblastic that is usually the case for prostate cancer. This statement opposes rather than supports the appellant's claim that cancer was related to the service-connected combat wound residuals of the lower extremities. The opinion expressed therefore is not new and material as there is no reasonable possibility that this evidence would change the outcome of the prior decision. Dr. Yim also stated that it was extremely unlikely that bony metastasis was secondary to the above presumed primary bone cancer in the absence of any lesion in the bone where he [veteran] had osteomyelitis even though there was no tissue diagnosis from the lesion of bony metastasis before and or after his death. Again this opinion opposes rather than supports the appellant's claim that cancer spread from the amputation site to the prostate, lumbar vertebrae and pubic bone. The opinion is thus not new and material as there is no reasonable possibility that this evidence would change the outcome of the prior decision. Finally, Dr. Yim expressed the opinion that at least partial blame for the veteran's death could be placed on his poor nutritional health due to service-connected disabilities that made him more vulnerable to cancer. While Dr. Yim's other statements pertain primarily to the service-connected disabilities as the principal cause of death, this opinion focuses on a contributory cause of death. In this context the evidence is new, however, his opinions regarding the veteran's prior nutritional health since service are apparently based on history provided to him and not personal observation. The available clinical record does not reflect that the veteran's nutrition was poor during the years immediately following active duty. The opinion, therefore, on its own without further evidentiary development is insufficient to create a reasonable possibility of changing the outcome and hence not material. It is however sufficient to justify a reasonable belief that further evidentiary development pursuant to VA's duty to assist would be reasonably likely to produce new and material evidence. See Ivey v. Derwinski, 2 Vet.App. 320 (1992) (holding that while the evidence may not be adequate to reopen the claim it is sufficient to trigger the duty to assist) (Steinberg, J., concurring, writing separately, that the well-grounded claim evidentiary threshold is lower than the requirement of new and material evidence). In October 1994, with notice to the appellant, pursuant to 38 C.F.R. § 20.901(a) (1994) (pertaining to medical opinions), the Board requested a medical opinion, from the Chief Medical Director of the Veterans Health Administration (VHA) on the medical question raised by Dr. Yim, namely, whether the veteran's service-connected amputation caused such debilitation that he was susceptible to infections and cancers. In November 1994, a designee of VHA expressed the opinion that prostate cancer was not caused by infection, that there was nothing in the medical literature suggesting that being weak increases susceptibility to cancer and that chronic infectious osteomyelitis did not cause his [veteran's] prostate cancer as the two are wholly unrelated. After notice to the appellant's representative, there was no further evidence or argument submitted. The VHA opinion too opposes rather than supports the appellant's claim that the service-connected disabilities were in any way related to the cause of the veteran's death. Together the opinions of Dr. Yim's and VHA are not new and material as there is no reasonable possibility that this evidence would change the outcome of the prior decision. In a May 1991 letter, N. M. Payawal, M.D., indicated that it was possible that the veteran had a low grade proteus infection that was left untreated. While this evidence is new, it is not material because it does not relate the proteus infection to either the principal or a contributory cause of the veteran's death. For these reasons, the Board finds that the additional evidence is not new and material and the claim of service connection for the cause of the veteran's death is not reopened. Whether New and Material Evidence has been Submitted to Reopen the Claim of a Total Rating Based on Individual Unemployability due to Service-Connected Disabilities for the Purpose of Accrued Benefits. In a March 1984 Income -- Net Worth and Employment Statement, the veteran reported that in January 1983 he became too disabled to work as a county veterans' service officer -- a position he had held for 12 years. He claimed that he was unemployable because he was unable to wear his artificial limb due to kidney and cancer conditions. He indicated that he had completed the 11th grade. In April 1984, the veteran's employer or supervisor reported that the veteran's employment had begun in February 1972, that he had worked 37.5 hours a week and that he had last worked in January 1984. In a December 1984 rating decision, the RO, in part, denied the veteran's claim of a total rating based on individual unemployability due service-connected disabilities. In August 1985 the veteran died. In September 1985, the appellant applied for VA compensation that included accrued benefits. The claim of individual unemployability due to service-connected disabilities for the purpose of accrued benefits was adjudicated on the merits in a May 1987 rating decision by the RO. The claim was denied on the grounds that the service-connected disabilities alone did not prevent gainful employment rather the record showed that non- service-connected cancer of the prostate and its complications caused his unemployability. After she was furnished notice of the denial in the statement of the case, the appellant did not perfect the appeal of this issue and the decision became final. In October 1988, the appellant sought to reopen the claim of service connection for the cause of the veteran's death that included accrued benefits. In a claim for accrued benefits, 38 U.S.C.A § 5121(a) and the implementing regulation, 38 C.F.R. § 3.1000(a), provide, as relevant here, that a veteran's surviving spouse may receive accrued benefits to which the veteran was entitled based on evidence "in the file" at the date of death. In this case, the death certificate is acceptable as post-date-of-death evidence under subsection (d)(4)(i) of the regulation. Also, acceptable as "in the file" at the date of death are service department records, reports of VA hospitalization, reports of treatment or examinations in VA medical centers including those in outpatient folders, and reports of treatment authorized by VA. VA's Veterans Benefits Manual, M21-1, Part VI, para. 5.25(a)(Change 3 Sept. 21, 1992) (accrued rating: evidentiary requirements: evidence in file at date of death). See Hayes v. Brown, 4 Vet.App. 353, 360-361 (1993) (holding, in part, that VA's Veterans Benefits Manual, M21-1, Part VI, para. 5.25 has the force of law). In its May 1987 rating decision, the RO considered the copies of VA hospital summaries for admissions in August 1984, January 1985 and July 1985 in the file a the time of the veteran's death. As a preliminary matter, the Board must now determine what evidence presented or secured with the application to reopen the claim is acceptable as "in the file" at the date of the veteran's death before determining whether it is new and material evidence to reopen the claim. Clearly all service department and VA records are acceptable as explained above. The veteran's employment attendance records from 1979 to 1985, the nursing notes for March 1984 to August 1985, the appellant's testimony and the lay statements from the veteran's friends are also acceptable as verifying or corroborating evidence "in the file" at death, i.e., the veteran's Income - Net Worth and Employment Statement (asserting that he was too disabled to work), employment statement (documenting that he last worked in January 1984, and the 60 percent rating for a single service-connected disability (meeting the percentage criteria for consideration of individual unemployability under 38 C.F.R. § 4.16(a)). See Hayes at 360-61 (holding, in part, that 38 C.F.R. § 3.1000(d)(4) and 38 C.F.R. § 3.327(b)(1) also provide for the acceptance of evidence after death for verifying or corroborating evidence "in file" at death). As for the post-date-of-death statements of Dr. Yim and Dr. Payawal, this evidence was presented in support of the application to reopen the claim of service connection for the cause of the veteran's death -- an issue resolved against the appellant. In the absence of evidentiary assertions relating this evidence to the claim of individual unemployability and as the Board on its own does not find that it verifies or corroborates evidence "in the file" pertaining to individual unemployability or that it confirms the prima facie evidence of individual unemployability, i.e., the veteran's Income -- Net Worth and Employment Statement (asserting that he was too disabled to work), employment statement (documenting that he last worked in January 1984 and the 60 percent rating for a single service-connected disability (meeting the percentage criteria for consideration of individual unemployability under 38 C.F.R. § 4.16(a)), this evidence is not acceptable as in the file at the date of death. See VA's Veterans Benefits Manual, M21-1, Part IV, para. 27.08 (Change 60, July 26, 1994) evidence confirming prima facie evidence -- the other exception to the statutory and regulatory provision of "in the file" at the date of death. See Hayes at 360-361. In determining whether the accepted evidence is new and material evidence to reopen the claim, the evidence should tend to show that the adjudicated service-connected disabilities, combat wound residuals involving the lower extremities, alone prevented the veteran from securing or following a substantially gainful occupation or the evidence should tend to show additional disabilities that affected employability warranted the status of service-connection. The appellant testified that the veteran worked until 1984 when a catheter was placed which prevented him from wearing his prosthesis which made him wheel chair dependent. Also, she related the veteran's bone cancer to service. December 1989 hearing transcript, 6-10. The testimony about the veteran working until 1984 is cumulative of evidence previously considered, namely, the April 1984 report from the veteran's employer. The testimony linking bone cancer to service while new, it is not material as a lay person is not competent to offer a medical opinion. See Espiritu at 494. The lay statements from friends of the veteran since the 1940s, dated in January 1990, are new as to the observed changes in his health, i.e., health slowing deteriorated...from his injuries (J.B.), he never gained any weight back (M.F.), and his nerves were in terrible condition, he was terribly thin [and] in constant pain (L.A.). They are not material as to the underlying medical conditions that caused his health to decline. See Espiritu at 494 (a lay person is not competent to offer a medical opinion). As for the employment records, covering the period from 1978 to 1985, they show that the veteran worked full time until about January 1984. This opposes rather than supports the claim that the adjudicated service-connected disabilities prevented him from working. After January 1984, the veteran missed a lot of work which is cumulative evidence as the record previously showed that the veteran had been hospitalized in January and August 1984 and January and July 1985 for treatment of cancer of the prostate and renal failure, nonservice-connected disabilities. There is no record of treatment of the adjudicated service-connected disabilities over the same period of time. This opposes rather than supports the claim that the adjudicated service-connected disabilities prevented him from working. Also the evidence has no probative value as to what other disabilities that affected employability warranted the status of service-connection, i.e., cancer of the prostate or renal failure. As for the nursing notes, covering the period from March 1984 to August 1985, this evidence is also cumulative as it essentially describes the veteran as chronically ill due to nonservice- connected cancer of the prostate and renal failure. Facts previously established by VA hospital summaries for admissions in January and August 1984 and January and July 1985. The remainder of the additional evidence, copies of service medical records and copies of both VA and private medical treatment and the amendment to the death certificate are either repetitious or cumulative of evidence previously considered, i.e., that the adjudicated disabilities were essentially static and that beginning in August 1980 with the finding of cancer of the prostate with bony metastasis and complications of renal failure the veteran's health gradually declined so that in early 1984 he was unable to work full time and that the combination of cancer and renal failure, nonservice-connected disabilities, caused his death. Also the evidence has no probative value as to whether the adjudicated service-connected disabilities prevented him from working or whether there were other disabilities, affecting employability, that warranted the status of service-connection. For these reasons the additional evidence is not new and material. ORDER The appellant's application to reopen the claim of service connection for the cause of the veteran's death based on new and material evidence is denied. (CONTINUED ON NEXT PAGE) The appellant's application to reopen the claim for a total rating based on individual unemployability for the purpose of accrued benefits is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.