BVA9503002 DOCKET NO. 93-09 174 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico 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: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Daniel J. McTavish, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal of a December 1991 determination by the Albuquerque, New Mexico Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran served on active duty from August 1945 through May 1949 and from September 1950 to October 1953. He died in December 1987. In January 1988 the RO denied the appellant, the veteran's widow, entitlement to service connection for the cause of the veteran's death. She was duly notified of that decision in February 1988 and did not file an appeal within the following one-year period. That decision became final. In November 1991, the appellant attempted to reopen her claim. She submitted additional evidence in December 1992. The RO found that the additional evidence was not new and material and the current appeal ensued. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that she is entitled to service connection for the cause of the veteran's death. She asserts that the retained metallic fragments in the veteran's chest contributed substantially and materially to his death in December 1987. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all of the evidence and material of record in the claims file, 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 a claim of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. According to the veteran's death certificate, the immediate cause of his death in December 1987 was cardiorespiratory failure, due to pulmonary emboli due to myocardial infarction. Cerebral infarction and generalized atherosclerosis were shown as other significant conditions that contributed to his death. 2. Heart disease was first shown present many years following the veteran's discharge from service. 3. At the time of his death, service connection was in effect for the following disabilities: Scar, right knee, evaluated as 10 percent disabling; scar, right arm, evaluated as 10 percent disabling; and scars of the right leg, left arm, left fifth finger and right chest, asymptomatic, evaluated as no percent disabling, with a combined evaluation of 20 percent. The veteran was nonservice connected for arteriosclerotic heart disease with hypertension, post myocardial infarction, evaluated as 60 percent disabling for nonservice-connected pension purposes. 4. The RO denied entitlement to service connection for the cause of the veteran's death in January 1988, finding that the cause of his death was not present in service or within one year thereafter, and his service-connected disabilities did not contribute materially or substantially in producing his death. 5. Additional evidence submitted since then is duplicative or cumulative of evidence previously of record and it does not present the reasonable possibility of a changed outcome. CONCLUSION OF LAW The evidence received since the RO's decision in January 1988, denying the appellant's claim of entitlement to service connection for the cause of the veteran's death, is not new and material, and that decision is therefore final. The appellant's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION In summary, the pertinent evidence before the RO in January 1988 included the veteran's service medical records, post service VA examinations, statements by the veteran's private physicians and his death certificate. Service medical records were negative for heart disease. He was wounded in action sustaining among other injuries, a small wound to the anterior right chest. X-ray study in July 1952 showed an irregular metallic foreign body in the soft tissue of the right lateral chest wall, superficially placed. On separation examination in September 1953, it was noted that the heart was normal and X-ray of the chest showed that the heart and lungs were essentially normal. The veteran was afforded a VA special orthopedic examination in February 1954. It was noted that there was a small, round scar on the right chest in the axillary line. The RO granted service connection for, among other disorders, scar of the right chest, asymptomatic, evaluated as no percent disabling, effective from October 7, 1953. Diagnoses on VA examination in September 1970 included residuals of multiple shell fragment wounds with retained foreign bodies, osteoarthritis of both knees, and pes cavus, bilaterally. Examination of the cardiovascular system was unremarkable. X-ray of the chest revealed there was a single, large, radial metallic shrapnel fragment within the soft tissue in the right lower thoracic wall laterally. The heart and mediastinal structures were unremarkable. There was no evidence of any active intrathoracic disease. Private medical statements dated in June and August 1983 revealed that the veteran had received treatment for hypertension since 1979. He had a myocardial infarction in December 1980. Arterial studies revealed four-vessel coronary artery disease. He complained of intermittent claudication after a short distance of brisk walking and his femoral and popliteal pulses were absent. Based on the aforementioned evidence, the RO granted nonservice- connected pension benefits in November 1983. The veteran's death certificate showed that he died on December 30, 1987, at age 59 years. The immediate cause of death was listed as cardiorespiratory failure, which was due to or a consequence of pulmonary emboli, which was due to or the consequence of myocardial infarction. The other significant medical conditions were stated to be cerebral infarction and generalized atherosclerosis. In January 1988, the RO denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The RO noted that the veteran's service-connected disabilities did not accelerate or substantially contribute to the cause of death. It was also noted that there was no evidence of heart disease in service or within one year thereafter. In April 1990, the appellant submitted a letter in which she stated her belief that the veteran's problems with his heart and his inability to walk were due to the shell fragment wounds he received during combat in the Korean Conflict. The RO sent a letter to her that explained that it had previously notified her in February 1988, that the veteran's death was not due to a service-connected disability. She was reminded that she had had one year to disagree with that decision before it became final but had not filed a timely appeal. In November 1991, she attempted to reopen her claim of service connection for the cause of the veteran's death by submitting an application for dependency and indemnity compensation and a copy of the veteran's death certificate. In December 1992, a copy of the autopsy report dated in December 1987 was obtained and incorporated into the claims file. The autopsy report revealed that the final anatomic diagnoses included pulmonary emboli and generalized atherosclerosis. The veteran was reported to be morbidly obese and to have had past myocardial infarction, and a history of hypertension, chronic obstructive pulmonary disease, congestive heart failure, 40 pack year cigarette smoking and ethanol abuse. External and internal examination of the chest wall cavity and heart revealed no evidence of retained shrapnel or metallic fragments. It was also noted that the veteran experienced a massive pulmonary embolus which obstructed at least 25 percent of the pulmonary arterial flow causing cardiac failure and sudden death. It was concluded that the veteran's medical history and cigarette smoking put him at high risk for myocardial infarction and cerebral infarction. After careful review of the record, we conclude that the additional evidence presented by the appellant is not new and material. She submitted duplicate copies of the veteran's death certificate and the autopsy report which was cumulative of evidence previously submitted. Under appropriate law and regulations, the RO's January 1988 decision is final and the appellant's claim may not be reopened absent the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104, 7105. "New" evidence is evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration and which is neither cumulative nor redundant. 38 C.F.R. § 3.156. In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. See, Wilisch v. Derwinski, 2 Vet.App. 191, 193 (1993). To be "material," the evidence must be relative and probative as to the issue presented, Colvin v. Derwinski, 1 Vet.App. 171 (1991). Moreover, there must be a reasonable possibility that the new evidence, when viewed in context of all of the evidence, both new and old, would change the outcome. We have considered the appellant's allegation that the retained metallic fragment in the veteran's chest contributed substantially and materially to his heart disease which caused death. (We note that the chest injury was on the right, not the left or in the vicinity of the heart.) The only supportive evidence concerning this allegation is the contention of the appellant. However, the United States Court of Veterans Appeals (Court) has pointed out the limited probative value of such evidence, noting that lay men lack "the requisite medical knowledge and expertise sufficient to proffer expert medical opinion." Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). There is no indication in the record that the appellant has the required medical expertise to link the cause of the veteran's death with any disease in service. The additional evidence contained no objective proof whatsoever that cardiovascular disease had its inception in service or that the veteran's service-connected disabilities caused or contributed to his death. Rather such evidence suggests that the veteran had a number of disease processes (such as diabetes) and other factors such as morbid obesity and cigarette smoking, which placed him at high risk for myocardial infarction. The Board finds that the evidence submitted by the appellant is merely duplicative and cumulative of evidence already in the claims file. While the additional information submitted by the appellant was informative about the details of the veteran's last illness, it was not new and material. Thus, the appellant's claim is not reopened and the appeal must be denied. 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. N. R. ROBIN 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.