Citation Nr: 0005998 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 96-24 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for cause of death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1151 (West 1991). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The appellant is the widow of the veteran who had active service from November 1940 to August 1945. The Board of Veterans' Appeals (Board) previously remanded this matter in July 1997 and November 1999 for further development and adjudication, and the Board finds that the action requested has been accomplished to the extent possible. The case is now ready for appellate consideration. The Board further notes that subsequent to the Board's first remand, while a more restrictive version of 38 U.S.C.A. § 1151 went into effect on October 1, 1997, the Board will continue to apply the previous and more favorable version to the instant case. FINDINGS OF FACT 1. A claim for service connection for cause of death was denied by a July 1984 rating decision. 2. The evidence submitted since the unappealed July 1984 rating decision is either cumulative and redundant, or does not bear directly and substantially upon the issue at hand, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The appellant has not submitted, nor has she alleged the existence of, competent medical evidence showing that the acute myocardial infarction that caused the veteran's death was due to Department of Veterans Affairs (VA) treatment or examination. CONCLUSIONS OF LAW 1. The July 1984 rating decision which denied service connection for cause of death is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § 19.192 (1984). 2. New and material evidence has not been submitted since the July 1984 rating decision, and the claim for service connection for cause of death is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156 (1999). 3. The claim for DIC benefits pursuant to 38 U.S.C.A. § 1151 is not well grounded. 38 U.S.C.A. § 1151, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for Cause of Death Background Following notification of an initial review and adverse determination by the regional office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In Evans v. Brown, 9 Vet. App. 273, 285 (1996), the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") held that "in order to reopen a previously and finally disallowed claim . . . there must be 'new and material evidence presented or secured' . . . since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). It is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded claim is "[a] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of ten percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). To establish service connection for cause of the veteran's death, the evidence must show that 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 (1999). At the time of the July 1984 rating decision, which originally denied service connection for cause of death, the appellant was advised that service medical records were negative for chronic impairment of the cardiovascular system, with negative findings at the time of the veteran's separation from service in 1945, and a blood pressure reading at that time of 126/80. At the time of a VA medical examination in July 1971, it was noted that examination of the cardiovascular system revealed that it was regular and without murmurs, and that blood pressure was at 130/85. At this time, also of record was a chest X-ray that was interpreted to reveal normal findings and minimal calcification of the aorta. It was noted that the death certificate revealed that the veteran's death was caused by acute myocardial infarction. The record reflects that at the time of death, the veteran was only service-connected for perforation of the right tympanic membrane. Also of record at the time of the July 1984 rating decision were the results from an October 1975 VA medical examination, which included further X-ray examination of the chest. These X-rays were interpreted to reveal tortuosity of the thoracic aorta, and, in the left base, a small amount of atelectasis with slight elevation of the left hemidiaphragm. In a letter dated in July 1984, the appellant was notified that the RO had determined that the evidence had not established that the veteran's death was due to a service- connected disability. The appellant did not appeal this decision and it became the last final denial under Evans v. Brown, supra. While an application to reopen the claim was adjudicated by the Board in October 1989, this determination was apparently not provided with appellate rights on appeal, and the Board therefore finds that it can not, therefore, constitute a final decision for new and material purposes. Since the July 1984 decision, while additional written contentions have been received from and on behalf of the appellant, the only pertinent documentary evidence consists of documents already of record at the time of the rating decision of July 1984. Included among these documents were additional copies of the X-ray results from 1971 and 1975, which were already of record at the time of the July 1984 rating decision. Analysis While this case has been in appellate status, the United States Court of Appeals for the Federal Circuit entered a decision in Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998) concerning the definition of the term "new and material evidence" found in 38 U.S.C.A. § 5108 (West 1991). In that determination, the Court of Appeals for the Federal Circuit held that the Court in Colvin v. Derwinski, 1 Vet. App. 171 (1991), had "overstepped its judicial authority" by adopting a social security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [VA] regulation." Id. at 1357, 1364. The Court of Appeals for the Federal Circuit further held that the Court's "legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened" as to what constitutes "material evidence" (Id. at 1357, 1360), and remanded the case for review under the Secretary's regulatory definition of "new and material evidence." In Hodge, the Court of Appeals for the Federal Circuit found that the definition of "new and material evidence" applied by the Court under Colvin was as follows: Evidence is 'new and material' if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and if it is 'new' and 'probative' (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record. Id. at 1359 [hereafter Colvin definition]. The Court of Appeals for the Federal Circuit found that part (iii) imposed a higher burden on claimant's than the VA regulatory definition because it: . . . specifically focuses on the likely impact the new evidence submitted will have on the outcome of the veteran's claim; it requires that 'there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome.' (citations omitted). Id. at 1363. Citing the regulatory history, the Court of Appeals of the Federal Circuit held that: . . . the purpose behind the [VA] definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. at 1363. Following Hodge, the Court, in Elkins v. West, 12 Vet. App. 209 (1999), announced a three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. In Winters v. West, 12 Vet. App. 203 (1999), the Court held that even assuming the Board committed error in refusing to reopen a claim by using the now invalid Colvin test of materiality, such error would not be prejudicial if it is clear on the record that the claim would not be well grounded. In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court further concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, that should end the Board's analysis as to whether the evidence is "new and material." Accordingly, if the evidence is not new, it is not necessary to go on and determine whether it is material, and thus any error arising from the Board's application of the now invalid Colvin test of materiality would be harmless and a remand for readjudication consistent with Hodge would not be warranted. In this case, the RO in the March 1996 statement of the case provided the appellant with the provisions of 38 C.F.R. § 3.156(a). In the March 1996 statement of the case and the June 1998 supplemental statement of the case, the RO noted that the evidence that had been submitted in connection with the appellant's claim to reopen did not constitute new and material evidence because it essentially duplicated evidence which was previously considered and merely cumulative. The Board further notes that in the remands of July 1997 and November 1999, the Board admonished the appellant that based on its preliminary review of the record, it had not found any competent medical evidence linking the cause of the veteran's death to service or service-connected disability. The Board finds that the RO's position as to the evidence submitted by the veteran since the last final denial in this matter in July 1984 is synonymous with a finding that the evidence either was cumulative or redundant, or that it did not bear substantially and materially on the specific matter under consideration. Accordingly, the Board finds that the claimant has been provided the governing regulatory definition of "new and material evidence," and that the RO's adjudication of the claim was consistent with that definition. Thus, it is not prejudicial for the Board to proceed with the adjudication of this claim. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has considered the evidence and contentions received since the rating decision in July 1984, and again notes that it consists of evidence that was already of record at the time of the July 1984 rating decision and does not include any competent medical evidence linking the veteran's death to service, to a period of one year after service, or to service-connected disability. By itself, 38 U.S.C.A. § 1154(b) would also not help the appellant, as this provision does not obviate the need for the submission of competent evidence linking the cause of the veteran's death to service. The critical question in this case was and remains whether there is medical evidence linking the veteran's death to service, to a period of one year following service, or to service-connected disability. This is a question that can only be addressed by those with medical expertise. The competent medical evidence received since the July 1984 rating decision fails to address this fundamental question. Therefore, the Board finds that the additional evidence received in this case is not probative of this critical question and thus is not material. 38 C.F.R. § 3.156(a). The Board also notes that an appellant's recitations of medical history which has already been considered and rejected by VA is not probative of the central issue and is thus not material. Chavarria v. Brown, 5 Vet. App. 468 (1993). Consequently, the statements of the appellant as to how and when the veteran developed the condition that caused his death are not new, and in light of the absence of medical findings to relate the cause of the veteran's death to service, presumptively or otherwise, the Board finds that new and material evidence has not been received. Therefore, the July 1984 rating decision remains final and the claim for service connection for cause of death is not reopened. As was indicated previously, the Court recently announced a three step test with respect to new and material cases. Under the new Elkins test, VA must first determine whether the veteran has submitted new and material evidence under 38 C.F.R. § 3.156 to reopen the claim; and if so, VA must then determine whether the claim is well grounded based on a review of all the evidence of record; and lastly, if the claim is well grounded, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Winters v. West, supra; Elkins v. West, supra. As new and material evidence has not been submitted to reopen the veteran's claim for service connection for cause of death, the first element has not been met. Accordingly, the Board's analysis must end here. Butler v. Brown, 9 Vet. App. at 171 (1996). II. Entitlement to DIC Benefits Pursuant to 38 U.S.C.A. § 1151 Background Pursuant to 38 U.S.C.A. § 1151 (West 1991), the VA is required to pay disability compensation for disability, aggravation of disability or death, to a veteran "in the same manner as if such disability, aggravation or death were service-connected," under the following circumstances: Where any veteran shall have suffered an injury, or aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation awarded under any of the laws administered by the VA, or as the result of having submitted to an examination under any such law, and not the result of the veteran's own willful misconduct, and any such injury or aggravation results in additional disability to or the death of the veteran. In Gardner v. Derwinski, the Court declared invalid the provisions of 38 C.F.R. § 3.358(c)(3) (1994), requiring VA fault or accident prior to recovery under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), Aff'd Sub Nom., Gardner v. Brown, 5 F.3d. 1456 (Fed. Cir. 1993), Brown v. Gardner, 115 S. Ct. 552 (1994). In December 1994, the United States Supreme Court held that VA is not authorized by § 1151 to exclude from compensation the "contemplated or foreseeable" results of non negligent medical treatment, as was provided by 38 C.F.R. § 3.358(c)(3). Subsequently, the VA Secretary sought an opinion from the Attorney General as to the scope of the exclusion from § 1151 coverage contemplated by the Supreme Court's decision. In a memorandum to the Secretary dated January 20, 1995, the Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, indicated that the Supreme Court's holding is read most accurately as excluding from coverage under § 1151 only those injuries that are certain, or perhaps the very nearly certain, result of proper medical treatment." In March of 1995, amended regulations were published deleting the fault or accident requirement of 38 C.F.R. § 3.358, in order to conform the regulations to the Supreme Court's decision. During the pendency of this appeal, the Board notes that a more restrictive version of 38 U.S.C.A. § 1151 went into effect on October 1, 1997, however, the Board will continue to apply the older and more favorable version to the instant case. As was noted previously, the threshold question in all cases is whether the claimant has presented a well-grounded claim. 38 U.S.C.A. § 5107(a). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well-grounded claim. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). However, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The statements of appellant are not of sufficient probative weight nor are they competent evidence to establish a causal relationship between the acute myocardial infarction that caused the veteran's death and VA treatment and/or examination. Generally, evidentiary assertions must be accepted as true for the purpose of determining whether the claim is well grounded. Exceptions to this general principle occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993); See also, Espiritu v. Derwinski, supra; and Tirpak, 2 Vet. App. at 611. In this case, the determinative issue is medical causation between the veteran's death and VA medical treatment and/or examination. The appellant is competent to make assertions as to concrete facts within her own observation and recollection, that is, objective manifestations of symptomatology. The appellant's assertions are not considered to be competent to prove that which would require any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465, 470(1994); Espiritu, 2 Vet. App. at 494-95. Specifically, it has been held that lay testimony is not competent to prove a matter requiring medical expertise. Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93, 95 (1993); Grottveit, 5 Vet. App. at 92-93; Clarkson v. Brown, 4 Vet. App. 565, 567 (1993). Thus, "lay assertions of medical causation cannot constitute evidence to render a claim well grounded..." Grottveit, 5 Vet. App. at 93. If the appellant fails to submit a well-grounded claim, the VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107. As was also noted previously, there is no evidence of findings of cardiovascular disability in service, and at the time of initial VA examination in July 1971, while a chest X- ray was interpreted to reveal minimal calcification of the aorta, the X-ray report still indicated normal findings and the overall examination at this time revealed that the cardiovascular system was regular and without murmurs. Thereafter, a VA chest X-ray in October 1975 reflects findings of tortuosity of the thoracic aorta, and, in the left base, a small amount of atelectasis with slight elevation of the left hemidiaphragm. There are no additional VA examination or treatment records dated after October 1975 to the time of the veteran's death in 1983. Thus, the main thrust of the appellant's position would seem to involve the contention that the X-ray findings in 1971 and 1975 put the VA on notice that the veteran had a cardiovascular problem and that additional care at and beyond this point may have prevented the veteran's death in 1983. Analysis The Board has reviewed all the evidence of record, and once again notes the appellant's assertion that the acute myocardial infarction that caused the veteran's death was attributable to VA treatment or examination. More specifically, as was noted above, the appellant contends that the X-ray findings in 1971 and 1975 should have put the VA on notice that the veteran had a cardiovascular problem and that additional care at and beyond this point would have prevented the condition that caused the veteran's death in 1983. These lay assertions concern the etiology of the veteran's death that is the subject of this appeal. As such, the assertions of the appellant address medical causation and are not competent. See, King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu, 2 Vet. App. 492 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Layno, 6 Vet. App. at 470-71. These assertions do not constitute competent evidence to the effect that the acute myocardial infarction that caused the veteran's death was attributable to any incident associated with VA treatment. "Just as the BVA must point to a medical basis other than its own unsubstantiated opinion, ...[the] appellant cannot meet [her] initial burden by relying upon [her] own ... opinions as to medical matters." Grottveit, 5 Vet. App. at 93. In Contreras v. Brown, 5 Vet. App. 492 (1993), the veteran sought compensation pursuant to § 1151 for a back disability allegedly caused by VA treatment of a nonservice-connected right knee disability. He also contended that his left knee was injured within a VA vocational rehabilitation program. The Court, specifically citing to Gardner, found that the veteran had failed to submit any medical evidence that his current left knee and spine disabilities resulted from VA surgery or treatment. Contreras, 5 Vet. App. at 495. The Court, citing both Espiritu and Grottveit, found that the veteran's own statements were not competent evidence of medical causation. Therefore, the claim was not well grounded as a matter of law. Id. at 495-496. The Court stated, in pertinent part: . . . even accepting his assertions as true, he has not submitted any evidence that could plausibly establish that those incidents caused his current left knee and spine disabilities. Absent such evidence of a causal relationship, the veteran has not submitted evidence of a well-grounded claim, as a matter of law, for § 1151 benefits for those disabilities. Id. at 496. The opinion of qualified medical personnel is required to establish medical causation. Grottveit, supra. As a result, there is no competent medical evidence of record that demonstrates any clinical relationship between the acute myocardial infarction that caused the veteran's death and VA treatment and/or examination. There is also no clinical evidence associating VA examination or treatment with any underlying symptom or disorder related to the acute myocardial infarction in 1983. Consequently, the claim is not well grounded and "VA was not required to carry the claim to full adjudication." Tirpak, 2 Vet. App. at 611; Boeck v. Brown, 6 Vet. App. 14 (1993). As the Board finds that the appellant has not met the initial burden of submitting a well-grounded claim as to entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for DIC benefits, the appeal must be denied. No duty to assist the appellant in this claim has arisen. The RO's adjudication of the claim does not constitute prejudicial error. Grottveit, 5 Vet. App. at 93; Tirpak, 2 Vet. App. at 611; Sanchez v. Derwinski, 2 Vet. App. 330, 333 (error is harmless if it does not change the resolution of appellant's claim). ORDER New and material evidence not having been submitted to reopen a claim for service connection for cause of death, the claim remains denied. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for DIC benefits is denied as not well grounded. Richard B. Frank Member, Board of Veterans' Appeals