Citation Nr: 0007314 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-15 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from May 1942 to October 1945. This case was previously before the Board of Veterans' Appeals (Board) in April 1999, at which time it was remanded for further development. Following that development, the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, confirmed and continued its prior decision that new and material evidence had not been received to reopen a claim of entitlement to service connection for the cause of the veteran's death. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. A Notice of Disagreement was not timely received with respect to the RO's July 1986 decision which denied entitlement to service connection for the cause of the veteran's death. 2. Evidence received since the RO's July 1986 decision is cumulative or duplicative of that on file at the time of the decision or is not so significant, by itself or in connection with evidence previously assembled, that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's July 1986 decision which denied entitlement to service connection for the cause of the veteran's death, is final. 38 U.S.C. § 4005(c) (1982) (now 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 19.129(a), 19.192 (1986) ; (now 38 C.F.R. §§ 20.302(a), 20.1103 (1999)). 2. The evidence received since the RO's July 1986 decision is not new and material to reopen the appellant's claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for the cause of the veteran's death may be granted when it can be shown that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death. Rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, establish that a particular disease or injury resulting in disability was incurred coincident with service in the Armed Forces, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For certain disabilities, such as cardiovascular disease, including hypertension, or a cerebrovascular accident, service connection may be presumed when that disability is shown to a degree of 10 percent within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In July 1986, the RO denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. Evidence on file at that time consisted of the veteran's service medical records, a copy of the Death Certificate, and private medical records and reports, dated from December 1971 to April 1976. That evidence showed that the veteran died in October 1979, as the result of a cerebrovascular accident of 3 days duration. At the time of his death, service connection was established only for malaria, evaluated as noncompensable. The evidence was negative for a neurologic or vascular disorder in service or for any etiologic relationship between the fatal cerebrovascular accident and service or during the year immediately following the veteran's discharge from service. In private medical records, received in June 1976, it was noted that the veteran had a history of hypertension dating to the 1970's; however, there was no evidence of any relationship to service. There was also no evidence that the veteran's service connected malaria contributed in any way to his death. The appellant was notified of that decision, as well as her appellate rights; however, she did not submit a Notice of Disagreement (NOD) with which to initiate the appellate process. 38 U.S.C. § 4005(b)(1); 38 C.F.R. § 19.129(a) (now 38 U.S.A. § 7105(b)(1); 38 C.F.R. § 20.302(a)). Accordingly, that decision became final. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 19.129(a), 19.192 (now 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103). Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 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. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must perform a three step analysis. First, it must determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, immediately upon reopening the claim, the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See, Elkins v. West, 12 Vet. App. 209 (1999). "New and material evidence" is evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection 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). Evidence added to the record since the July 1986 rating action consist of reports showing that the veteran was hospitalized by VA from March to May 1979 and in October 1979. From March to May 1979, he was hospitalized because his wife could no longer care for him and he was to be placed in a nursing home. At the time of his discharge from the hospital, the diagnoses were arteriosclerotic heart disease; an old myocardial infarction; compensated congestive failure; peripheral vascular disease; adult onset diabetes, controlled by an oral hypoglycemic agent; chronic dementia; and a urinary tract infection. In October 1979, the veteran was hospitalized primarily for left focal seizures. Additional diagnoses included arteriosclerotic heart disease; status post myocardial infarction in 1975; congestive heart failure; adult onset diabetes, 1968; proteinuria; hematuria; gastrointestinal bleed; organic brain syndrome; and an increase in creatinine and BUN. On admission, his blood pressure was 180/110. He was lethargic and responded to pain. Although his seizures were well controlled during his hospitalization, he never fully regained consciousness and continued to deteriorate. On the third hospital day, he went into irregular heart rhythm and could not be resuscitated. Due to his rapid downhill course, workup could not be performed on the veteran's other problems on admission. While the additional evidence had not been previously submitted to agency decision makers, and while it bears directly and substantially upon the cause of the veteran's death, it does not fill in any of the deficits which existed in the record in July 1986. The record remains negative for any evidence that the fatal cerebrovascular accident was in any way related to service or manifested to at least a compensable degree within the first year after the veteran's discharge from service. It also remains negative for any evidence that the veteran's service-connected malaria contributed to his death. As such, the additional evidence is essentially cumulative in nature and is not, by itself or in connection with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, new and material evidence for the purpose of reopening the claim of entitlement to service connection for the cause of the veteran's death has not been received. ORDER Reopening of the claim of entitlement to service connection for the cause of the veteran's death is denied. U. R. POWELL Member, Board of Veterans' Appeals