BVA9502221 DOCKET NO. 93-06 866 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for the cause of the veteran's death. WITNESSES AT HEARINGS ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran had recognized active military service from June 1945 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. That rating decision denied the appellant's petition to reopen her claim for service connection for the cause of the veteran's death on the grounds that the additional evidence was not new and material. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in denying service connection for the cause of the veteran's death. She argues that new and material evidence has been submitted to reopen her claim. In particular, she maintains that the cause of the veteran's death was tuberculosis and that this condition was incurred during active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not submitted new and material evidence to reopen her claim of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appellant's claim. 2. In a September 1984 rating decision, the RO denied entitlement to service connection for the cause of the veteran's death. 3. The evidence submitted since the September 1984 rating decision, when viewed in the context of all the evidence does not raise a reasonable probability of changing the outcome of the 1984 decision as it is shown to be essentially cumulative. CONCLUSIONS OF LAW 1. The rating decision of the RO in September 1984 denying the appellant's claim of entitlement to service connection for the cause of the veteran's death is final. 38 U.S.C.A. §§ 7105(c) (West 1991). 2. Evidence received since the RO denied entitlement to service connection for the cause of the veteran's death in September 1984 is not new and material, and the appellant's claim for service connection for the cause of the veteran's death has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In September 1984, the RO denied service connection for the cause of the veteran's death on the grounds that the evidence did not show that the septicemia, pneumonia or urinary tract infection that caused his death were incurred in service or that his service connected disabilities were etiologically related to the cause of death or that they contributed materially or substantially to his death. In so holding, the RO considered the veteran's death certificate, his service medical records, the joined affidavit of his fellow soldiers, the findings of the June 1978 VA examination, and his private medical records. The RO decision in September 1984 became final as no notice of disagreement was filed by the appellant. 38 U.S.C.A. §§ 7105(c) (West 1991). Nevertheless, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991). To be "new" additional evidence must be more than merely cumulative. The additional evidence must also be "material". That is, it must be relevant and probative and there must be a reasonable possibility that, when viewed in the context of all the evidence both new and old, the additional evidence would change the outcome. See Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171; 38 C.F.R. § 3.156(a) (1993). With this requirement in mind, the Board has reviewed the entire record to determine if the appellant has submitted new and material evidence to reopen the claim. To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1993). At the time of the veteran's death, service connection was in effect for residuals of a hemorrhoidectomy and residuals of a shrapnel wound to the left thigh, both rated as noncompensable. It is not contended nor does the evidence show that the disabilities for which the veteran was service connected caused his death. According to the death certificate, the veteran died in April 1983 at the age of 64. The death certificate listed cardiorespiratory arrest due to probable septicemia, pneumonia and urinary tract infection as the cause of his death. No other causes of death were listed and no autopsy was conducted. The veteran's service medical records were negative for treatment or diagnoses of septicemia, pneumonia or a urinary tract infection. In fact, a preoperative report in September 1945 showed that the veteran's lungs were clear. Urinalysis and blood work were also conducted. There was no diagnosis of pneumonia, septicemia or of a urinary tract infection. The veteran also completed an Affidavit for Philippine Army Personnel in February 1946. Under the record of wounds and illnesses incurred in service, he reported only a shrapnel wound. An operation record from the Manila Central University Hospital indicated that the veteran underwent a hemorrhoidectomy in April 1962. Also of record was a joined affidavit signed by two of the veteran's fellow soldiers in January 1978. The soldiers offered testimony to the effect that they witnessed the veteran being struck in the left thigh by a piece of shrapnel during service. The veteran also underwent a VA examination in June 1978. Genitourinary findings were normal. The examiner noted that his heart sounded strong with regular rate and rhythm. His chest was symmetrical in contour and equal in expansion. There were no rales or wheezes and percussion was not impaired. A chest x-ray revealed irregular patchy infiltrations in the left upper lobe extending from the apex to the second anterior interspace. There was also an accentuation of pulmonary markings throughout both lungs, but no other evidence of parenchymal infiltration was seen. The impression was pulmonary infiltrations, left upper lobe, etiology undetermined. These abnormalities were noted more than thirty years after the veteran's discharge from service and no evidence has been presented showing that they had their onset in service. The report of the veteran's final hospitalization in April 1983 contained diagnoses of pneumonia; pulmonary tuberculosis, moderately active; a urinary tract infection; and schizophrenia. Also of record was a medical certificate from Edgardo M. Elbo, M.D. showing the veteran's medical treatment from August 1965 to September 1980. Throughout this time period he had been diagnosed as having chronic bronchitis; prostatitis; intertrigo, intergluteal area; conjunctivitis; furuncle, anterior nares with cavernous sinus thrombosis; non-specific diarrhea; sore throat; constipation of unknown etiology; and acute gastritis. None of these conditions were attributed to either the veteran's cause of death or his military service. Evidence submitted since the September 1984 rating decision included duplicate copies of the veteran's final report of hospitalization dated in April 1983. As this evidence is cumulative of other evidence of record, it cannot be considered to be new and material. At her April 1992 personal hearing, the appellant testified that when the veteran was discharged from service, he became sick of tuberculosis and that she took care of him. Service connection for tuberculosis may be granted if the evidence shows that it was incurred or aggravated by service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991). Tuberculosis may be presumed to have been incurred in service if it is manifested to a degree of 10 percent or more within 3 years following the veteran's release from active service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). No medical evidence has been provided to establish that the cause of the veteran's death was pulmonary tuberculosis. As the appellant is not a medical expert, her opinion does not constitute competent evidence to establish a medical diagnosis. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Therefore, her testimony is not sufficient to reopen the claim. Even if tuberculosis is to be considered as responsible for the veteran's death, there is no medical evidence of tuberculosis in service or within the 3 year presumptive period. The appellant also testified at another hearing in December 1992. However, her testimony added nothing relevant with respect to her claim. Rather, she indicated that she appeared merely to inquire as to the result of her previous hearing and as to what benefits she may be entitled to receive. Hence, the appellant has not provided any new information or relevant documentation which could serve as a basis for reopening her previously disallowed claim. In particular, she has not provided any evidence which would relate the veteran's death to his active military service. Since the additional evidence submitted is not new and material in light of the applicable law and regulations, the previous denial remains final and the claim is not reopened. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for the cause of the veteran's death, the benefit sought on appeal is denied. JOAQUIN AGUAYO-PERELES 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.