BVA9507862 
DOCKET NO.  93-05 237     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Columbia, South
Carolina

THE ISSUE

Whether new and material evidence was submitted to reopen the
appellant's claim for entitlement to service connection for the
cause of the veteran's death.

REPRESENTATION

Appellant represented by: Bart E. Ecker, Attorney

ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Associate Counsel

INTRODUCTION

The veteran served on active duty in the Armed Forces from
October 1946 to September 1947.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from a July 1992 rating decision from the Columbia, South
Carolina, Department of Veterans Affairs (VA) Regional Office
(RO).  A notice of disagreement was received in August 1992.  A
statement of the case was issued in September 1992.  A
substantive appeal was received in October 1992.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant, who is eligible for death pension, contends that
the inservice head injury her husband sustained which resulted in
the insertion of a metal plate in his head caused his headaches,
violent mood swings and bizarre behavior.  This bizarre behavior,
she contends, resulted in his disappearance and presumed death.
She claims that the veteran was suffering from post-traumatic
stress disorder (PTSD) prior to his death.  The appellant
requests consideration of Sheets v. Derwinski, 2 Vet.App. 512
(1992) and 38 U.S.C.A. § 1154(b) (West 1991).  She also asks that
she be afforded the benefit of the doubt.

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 the her claim for entitlement to service
connection for the cause of the veteran's death.

FINDINGS OF FACT

1.        The Board in a July 1991 decision concluded that the
appellant was not entitled to service connection for the
cause of the veteran's death.

2.        In support of the appellant's current request to reopen her
claim for service connection for the cause of the veteran's
death, she submitted her own statements and nine lay-witness
statements.

3.        The evidence submitted in support of the request to reopen
the claim is not material, and, therefore, does not raise a
reasonable possibility that a review of all the evidence,
both old and new, would result in a different outcome of the
claim.

CONCLUSION OF LAW

Evidence received since the Board's final July 1991 decision
which denied the appellant's claim for service connection for the
cause of the veteran's death is not new and material, and thus,
the appellant's claim on the issue of entitlement 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 CONCLUSION

Service connection may be granted for cause of death if a
disability causing death occurred during service or a service
connected disability either caused death or contributed
substantially and materially to cause death.  38 U.S.C.A.
§§ 1110, 1131, 1310 (West 1991); 38 C.F.R. § 3.312 (1994).  An
individual absent from his or her home for a period of seven
years or more, and whose existence has not been disclosed by
diligent search, may be presumed dead for VA purposes.  38 C.F.R.
§ 3.212(a) (1994).

The evidence considered at the time of the Board's July 1991,
decision can be briefly summarized.  The veteran was last seen on
November 13, 1978.  The VA, in an administrative decision in
September 1989, stated that the veteran was presumed dead after
the veteran's unexplained absence of more than seven years.  At
the time of the veteran's presumed death, he was service
connected for anxiety reaction, rated at 30 percent disabling, a
rating in effect since 1952, and a scar on his forehead due to
the residuals of a lacerating wound due to a fall from a moving
truck in Korea in March 1947, rated at zero percent disabling.
The appellant, the widow of the veteran, contended that the
veteran's service-connected disabilities caused irrational acts
that resulted in his disappearance and presumed death.  The Board
concluded that the weight of the evidence did not show that a
service-connected disability was the cause or a material factor
in the veteran's presumed death.

The applicable law clearly states that, when a claimant requests
that a claim be reopened after an appellate decision and submits
evidence in support thereof, a determination as to whether such
evidence is new and material must be made.  38 U.S.C.A. §§ 5108,
7104; 38 C.F.R. § 20.1105 (1994).  A two-step process is
required, consisting of a review of the evidence to determine
whether there is new and material evidence to reopen the claim;
then if there is new and material evidence, the claim is
reopened, and there must be a review of all the evidence, both
old and new, to determine whether the benefit should be granted.
An adverse determination regarding either step is appealable.
Manio v. Derwinski, 1 Vet.App. 140 (1991).

New evidence means evidence not previously submitted.  38 C.F.R.
§ 3.156(a) (1994).  Material evidence is that which is relevant
and probative to the issue being considered.  Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991) (citing Cherney v.
Sullivan, 905 F.2d 214, 216 (8th Cir.1981)).  It is also that
which raises the reasonable possibility of a different decision,
and bears directly and substantially on the specific matter under
consideration, is neither cumulative nor redundant, and by itself
or in combination with evidence previously assembled is so
significant that it must be considered in order to fairly decide
the merits of the claim.  38 C.F.R. § 3.156(a) (1994); Colvin, 1
Vet.App. at 174.  For the limited purpose of determining whether
a claim should be reopened, all evidence is presumed to be
credible.  Justus v. Principi, 3 Vet.App. 510, 513 (1993).  All
evidence submitted after the last final denial of the merits of a
claim must be considered to determine whether new and material
evidence has been submitted to reopen the claim.  Glynn v. Brown,
6 Vet.App. 523 (1994).

The records submitted since the July 1991 Board decision include
the appellant's own statements and nine lay-witness statements.

The appellant contends that the head injury her husband sustained
in service, which resulted in the insertion of a metal plate in
his head, caused headaches, violent mood swings and bizarre
behavior.  This bizarre behavior, she contends, resulted in his
disappearance and presumed death.

The contentions posited in the nine lay-witness statements can be
summarized as follows: the veteran sustained a severe head injury
in service resulting in a metal plate being inserted in his head;
this disability caused various physical ailments, violent mood
swings and irrational behavior; and this irrational behavior
resulted in his disappearance and presumed death.

The United States Court of Veteran's Appeals (Court) has
delineated the area of competence of lay evidence in Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).  In that case, the Court
excluded, generally, as not being competent, lay statements that
require the qualification of particular expertise, e.g., medical
diagnoses or opinions.  Id. at 494-95.  The Court acknowledged,
generally, that lay testimony is competent as to empirical
observation, e.g., eye-witness accounts of visible symptoms or
events.  Id.

First, the Board notes that there is no evidence of record that
indicates that the veteran ever had a metal plate inserted in his
head during service.

In considering claims of veterans who engaged in combat, the
adverse effect of not having an official report of an inservice
injury or disease can be overcome by satisfactory lay or other
evidence which shall be sufficient proof of service occurrence or
aggravation if consistent with the circumstances, conditions, or
hardships of service. 38 U.S.C.A. § 1154(b) (West 1991); 38
C.F.R. § 3.304(d) (1994).  The Court has provided some guidance
on the quality of lay evidence that might be satisfactory under
section 1154(b).  See Sheets v. Derwinski, 2 Vet.App. 512 (1992).
In Sheets, the veteran's widow claimed entitlement to service
connection for the cause of her husband's death.  She claimed
that her husband committed suicide because he was suffering from
PTSD caused by inservice combat stressors.  The Court noted that
the lay statements included "descriptions of Mr. Sheets'
isolation from neighbors and relatives, his violent anger," and
other symptoms of the claimed disability within the competence of
lay persons to report.  Id. at 514.  The inference to be drawn
from Sheets was that the lay evidence, if otherwise proven
credible, was of satisfactory quality, i.e., within the area of
competence of those relating it.

First, the Board notes that the deceased veteran in the instant
case, unlike Mr. Sheets, did not participate in combat and thus
section 1154(b) is not for application.  Second, he is already
service connected for an acquired psychiatric disorder.  Finally,
the lay evidence described in Sheets is in accord with the
quality of competent lay evidence described in Espiritu and in
marked contrast to the lay evidence in the instant appeal.

The appellant's assertions are not new because they are
cumulative of her assertions considered in the prior Board
decision.  Even if these assertions were new they would not be
material as a lay witness is only competent to testify regarding
symptomatology or events that she actually observed.  See
Espiritu, supra.  The appellant has no actual knowledge regarding
the cause of the veteran's presumed death.

The nine lay statements in the instant appeal are new.  However,
they are distinguishable from those of record in Sheets.  The
Board concedes that they are credible statements that the veteran
acted irrationally at times.  However, the lay statements do not
purport to be eye-witness accounts of the veteran's death or even
based on first hand knowledge of the immediate circumstances
leading to the veteran's disappearance.  We note the absence of
any personal observation reported in the lay statements regarding
the actual circumstances regarding the disappearance and presumed
death of the veteran.  Thus the Board cannot find the reiteration
of the appellant's statements derivatively through other lay
persons to be probative, and thus material, of whether the
veteran's disappearance and presumed death was caused by his
service-connected disabilities.

Based on the foregoing, the Board concludes that the appellant
has not submitted new and material evidence and her claim for
service connection for the cause of the veteran's death is not
reopened.  38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a)
(1994).

The appellant has asked for consideration of 38 U.S.C.A. §
5107(b) (West 1991).  However, that statute does not apply when
the issue is whether new and material evidence has been submitted
to reopen a clam.  Martinez v. Brown, 6 Vet.App. 462, 464 (1994).

ORDER

The appeal is denied.

          E. M. KRENZER
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.