BVA9505161 DOCKET NO. 93-10 314 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from October 1969 to August 1970 and died in June 1984. The appellant is the veteran's surviving spouse. This matter arises from a rating decision of October 1991, whereby the Regional Office (RO) determined that new and material evidence had not been presented to reopen the widow's claim for service connection for the cause of his death. The Board of Veterans' Appeals (Board) previously denied the appellant's claim on the merits in a decision of June 1986. The appellant has implicitly raised the issue of nonservice- connected death pension benefits by virtue of her application to reopen a claim for a service-connected death benefit. See Isenhart v. Derwinski, 3 Vet.App. 177 (1992). As this issue was not certified for appeal and is not inextricably intertwined with the issue presently on appeal, the Board will refer it to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that the evidence submitted since the Board denied service connection for the cause of the veteran's death in 1986 is new and material and warrants a reopening of her claim. She claims that the newly submitted lay statements show that the veteran was having seizures in close proximity to his death. She argues, therefore, that the veteran's accidental death was caused by him losing control of the front end loader he was operating due to a grand mal seizure. She asserts that service connection for the cause of death is warranted since the veteran was service connected for grand mal seizures at the time of his death. 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 new and material evidence has not been submitted to reopen the appellant's claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The Board denied the appellant's claim for service connection for the cause of the veteran's death pursuant to a decision issued in June 1986. 2. The death certificate shows that the veteran died in June 1984 due to decapitation which was due to being caught underneath heavy equipment.. 3. At the time of death, the veteran was assigned a 60 percent disability evaluation for his service-connected convulsive disorder, grand mal type. 4. The additional evidence received since that decision consists of lay statements which were submitted to show that the veteran had seizures in close proximity to the time of the fatal accident -- this evidence is not cumulative of evidence of record in 1986; however, it is not probative to show that the veteran's fatal heavy equipment accident was caused by a seizure. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the appellant's claim for service connection for the cause of the veteran's death has not been presented. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The appellant's claim for service connection for the cause of the veteran's death is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The evidence which was of record when the Board first considered the appellant's claim in June 1986 may be briefly summarized. The veteran's service medical records reflected that he was admitted for inpatient treatment in February 1970 following a severe headache and questionable seizures. Upon admission, all neurological indicators were normal. The final diagnoses were the following: (1) Definitive clinical diagnosis not established; (2) Tension cephalalgia with possible conversion hysteria, suspect, questionable and; (3) Further diagnostic studies to exclude central nervous system pathology and/or cerebral dysrhythmia were indicated. In May 1970, the veteran was again hospitalized when he was found in bed having "seizures". He had been complaining of a headache when he went to bed. Upon admission, no seizure activity was noted. The veteran complained of apprehension, shortness of breath and mild hyperventilation. The initial diagnosis of conversion reaction was subsequently changed to convulsive disorder, grand mal type, etiology unknown. The Medical Board recommended discharge, which was subsequently effected, on the basis that his condition rendered him unfit to perform his duties. Pursuant to rating decision of October 1970, the RO awarded service connection for convulsive disorder, grand mal type, etiology unknown. A 30 percent evaluation was originally assigned effective in August 1970. A statement dated in April 1971 was received from N. C. Ratliffe, M.D. Dr. Ratliffe provided a diagnosis of grand mal seizures - idiopathic. He reported that the veteran had four episodes of grand mal seizures since discharge and that he had prescribed Phenobarbital and Dilantin. In October 1971, the veteran underwent a VA examination. The Social Work Service Report indicated that the veteran felt pressure building up inside him for weeks prior to a seizure. With the pressure continuing to build, he would develop a bad headache which lasted for 5 to 10 minutes, followed by a seizure. Dr. Ratliffe was also interviewed and he reported that the seizures were not related to the use of alcohol. He also reported that the seizures were well-controlled with medication. By way of a rating decision issued in November 1971, the RO increased the veteran's evaluation to 60 percent effective retroactively to August 1970. Upon VA examination in November 1974, the veteran complained of having seven or so seizures during 1973 and 1974, despite compliance with his medications. Upon physical examination, however, there were no abnormal neurologic findings. Nor did the electroencephalographic report indicate that there were any abnormalities or seizure activity. The examiner remarked that there was no evidence that either the seizures or the medication were causing any abnormal neurological findings. The veteran's death certificate reflects that he died in June 1984. The immediate cause of death was decapitation due to or as a consequence of being caught underneath heavy equipment. The medical examiner, M.C. Ratliffe, M.D., certified that death was the result of an accident which occurred when a front end loader went over a hill and caught the decedent underneath. A seizure disorder was not mentioned. An autopsy was not performed. The appellant originally submitted her application for dependency and indemnity compensation or death pension by a surviving spouse in August 1984. Therein, she claimed that the veteran's death was caused by a service-connected disability. The appellant submitted statements from various persons in support of her claim. In July 1985, a statement of Lloyd Kyle Phipps was submitted. He reported only that he saw nothing in the road which would have caused the veteran's accident. A statement from Andy E. Moore, a mechanic with 22 years of experience, was also submitted in July 1985. He had examined the loader that was involved in the veteran's accident and found no defect which would have caused the accident. An Accidental Death Report from the Sheriff's office dated in June 1984 contained further details concerning the accident. This document listed Kyle Phipps as a witness to the accident. When the officer arrived at the scene, he found the veteran dead and trapped under the front end loader. He saw "no obstructions or vehicles" at the scene upon arrival. The terrain was described as an open field with a steep grade. The accident occurred when the loader went over an embankment and tipped over on top of the veteran. Dr. Ratliffe also provided a statement dated in July 1984 wherein he reported that the veteran "may have had a seizure before his accident on June 10, 1984." The appellant also submitted two black and white photographs of the area where the accident reportedly occurred in order to show that there were no obstructions which might have contributed to the accident. In support of her claim, the appellant essentially argued that the service-connected condition caused the accident since the veteran had been acting strangely and having headaches before the accident. She also claimed that there was no other reason for the accident to have occurred. The equipment did not fail, therefore, he must have suffered a seizure and lost control of the machinery. In May 1986, the appellant along with two witnesses appeared at a hearing before the Board. In June 1986, the Board issued its decision. The panel determined that service connection for the cause of death was not established since the evidence did not show that the service- connected disability caused or contributed substantially or materially to cause death. The applicable criteria provide that the Board's decision of June 1986 is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104(b). In order to reopen her claim, the appellant must present or secure new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). A two-step analysis must be performed when the appellant seeks to reopen a previously denied claim. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence is new and material, and if it is, the case must be reopened and evaluated on the merits taking into consideration all the evidence, old and new. New evidence means more than evidence that was not previously of record. New evidence is not merely cumulative of evidence previously considered. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). In order to be material, the new evidence must be relevant and probative of the disputed issue; and there must also be a reasonable possibility that the new evidence, when considered in conjunction with all the evidence of record, would change the outcome. Smith v. Derwinski, 1 Vet.App. 178 (1991). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either was a principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). This criteria remains substantively unchanged since 1986. Evidence submitted since the Board's decision of June 1986 consists of several lay statements. In a statement dated in January 1988, Johnny Ryder, a former employee of the veteran, indicated that he saw the veteran having a "seizure" approximately 2 weeks prior to his death. Therefore, on the Thursday before the veteran's death and on the morning of death, he thought the veteran was again having "seizures" since he was acting strangely, and had a glassy look in his eyes. A statement from Joel Elliott, dated in August 1991, was also received in connection with the appellant's claim to reopen. He reported having witnessed the veteran in the midst of a "seizure" the day before the accident. Following review of the evidence in the claims folder, the Board concludes that the appellant's claim may not be reopened since the lay statements are not new and material evidence. These lay statements show for the first time that the veteran was acting strangely in close proximity to the fatal accident, therefore, they are not cumulative of evidence considered by the Board in 1986. However, these statements are not probative of the central issue. They do not tend to show that a seizure caused the accident which resulted in death, since neither person witnessed the actual accident. It does not necessarily follow that since the veteran was exhibiting behavior as late as the morning of the accident, which was construed by lay persons to be a seizure, that he was experiencing a seizure at the time of the accident. The United States Court of Veterans Appeals has stated that lay witnesses are not capable of offering probative evidence that requires medical knowledge, such as a diagnosis. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The lay witnesses would, however, have been considered competent to describe the symptoms exhibited by the veteran, Id., which might then have been interpreted as constituting a seizure by medical experts. Since the lay statements do not show the veteran had a seizure which caused the fatal accident, new and material evidence has not been presented to reopen the appellant's claim for service connection for the cause of the veteran's death. ORDER New and material evidence has not been presented to reopen the appellant's claim for service connection for the cause of death, the appeal is dismissed. C. W. SYMANSKI 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.