BVA9502975 
DOCKET NO.  93-08 561     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Reno, Nevada

THE ISSUE

Whether new and material evidence sufficient to reopen a claim of
entitlement to service connection for the cause of the veteran's
death has been submitted.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Charles G. Sener, Associate Counsel

INTRODUCTION

The veteran had active service from February 1944 to October
1945.

In December 1989, the Board of Veterans' Appeals (Board) denied
the appellant's claim of entitlement to service connection for
the cause of the veteran's death.

This matter comes before the Board on appeal from a November 1992
decision by the Department of Veterans Affairs (VA) Reno, Nevada,
Regional Office (RO), which determined that the appellant had not
submitted new and material evidence sufficient to reopen a claim
of entitlement to service connection for the cause of the
veteran's death.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant states that the veteran had numerous hardships and
severe pains due to his service-connected combat disabilities.
She alleges that the veteran's service-connected disabilities so
weakened his body that they eventually caused his death because
his body was unable to resist the adverse effects of a heart
condition.

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

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the appellant's appeal has been obtained by the agency of
original jurisdiction.

2.  In a December 1989 appellate decision, the Board denied
entitlement to service connection for the cause of the veteran's
death.

3.  The additional evidence submitted since the December 1989
appellate Board decision includes two statements from the
appellant, dated in July 1992 and November 1992, that documented
the veteran's life and that alleged that the "stress and pain" of
his service-connected disabilities led to a major heart attack
that caused his death, and duplicates of records previously
submitted.

4.  The additional evidence submitted since the December 1989
appellate Board decision does not indicate that arteriosclerotic
heart disease was present in service or that arteriosclerosis was
present within the first year after the veteran's separation from
service, nor does it indicate that arteriosclerosis was
etiologically or causally related to any incident of service,
including the veteran's service-connected complete paralysis of
the left radial nerve, right foot wound, right arm wounds, wound
of the left abdominal wall, and wound scar of the left Achilles
tendon.

CONCLUSION OF LAW

The evidence received by the Board since its December 1989
decision, denying service connection for the cause of the
veteran's death, is not new and material, and the claim for that
benefit is not reopened.  38 U.S.C.A. §§  1101, 1110, 1112, 1113,
1310, 5107, 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.307, 3.309,
3.156(a), 3.312, 20.1105 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v.
Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a
well-grounded claim.  The facts relevant to this appeal have been
properly developed, and the obligation of the VA to assist the
appellant in the development of the claim has been satisfied.
Id.

Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by wartime service.
38 U.S.C.A. § 1110 (West 1991).  Additionally, where a veteran
served continuously for 90 days or more during a period of war,
and arteriosclerosis becomes manifest to a degree of 10 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 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1994).

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 caused or contributed substantially
or materially to cause of 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, but 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 (1994).

The appellant is seeking service connection for the cause of the
veteran's death.  In a December 1989 appellate decision, the
Board denied service connection for the veteran's cause of death.
Pursuant to 38 U.S.C.A. § 7104(b) (West 1991) and 38 C.F.R.
§ 20.1105 (1994), a final decision by the Board on a given claim
"may not thereafter be reopened and allowed and a claim based
upon the same factual basis may not be considered."  The
exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which
states that "[i]f 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."  See Thompson v. Derwinski, 1 Vet.App.
251, 253 (1991).  Therefore, once a Board decision becomes final
under section 7104(b), absent the submission of new and material
evidence, the claim cannot be reopened or readjudicated by the
VA.  38 U.S.C.A. §§ 5108, 7104(b) (West 1991); see also McGinnis
v. Brown, 4 Vet.App. 239, 243-45 (1993).  Henderson v. Brown,
6 Vet.App. 45, 46 (1993).  The evidence to be analyzed as to
whether "new and material" evidence has been submitted is all of
the evidence received since the last decision on the merits.
Glynn v. Brown, 6 Vet.App. 523 (1993).

New and material evidence is evidence not previously submitted to
agency decisionmakers 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) (1994).

"New" evidence is not that which is merely cumulative of other
evidence on the record.  Colvin v. Derwinski, 1 Vet.App. 171, 174
(1991).  "Material " evidence is evidence that "is relevant and
probative of the issue at hand."  Id.  When evidence is
"material," it means there is a reasonable possibility that
consideration of the new evidence, when viewed in the context of
all the evidence, would change the outcome.  This does not mean
that the claim will always be allowed, just that the case will be
reopened and the new evidence will be considered in the context
of all the other evidence for a new determination of the issues.
Smith v. Derwinski, 1 Vet.App. 178, 179-80 (1991).

Evidence of record at the time of the December 1989 appellate
decision included the veteran's service medical records that
showed no complaint or finding of arteriosclerosis, VA reports of
physical examinations, dated in May 1946, November 1946, and
November 1948, that showed no complaint or finding of
arteriosclerosis, VA reports of hospitalizations, dated in
October and November 1955, September 1960, August to September
1961, October 1975, and November 1988, and a November 1988
certificate of death.

A report of VA hospitalization for the period October to November
1955 showed that the veteran was admitted for removal of a scar
on his right foot.  Physical examination showed that his blood
pressure was 130/100 and that his pulse was 80 and regular.  A
chest x-ray was normal, and there was no complaint or finding of
arteriosclerosis.

The veteran was hospitalized at a VA medical facility in
September 1960 and the record showed that the veteran's blood
pressure was 130/100 and that his pulse was 80 and regular.  A
cardiovascular physical examination revealed regular sinus rhythm
with no murmurs.  The record disclosed that an EKG was "probably
within normal limits" and that a chest x-ray was normal.

A VA record of hospitalization, from August to September 1961,
indicated that the veteran had suffered a posterior myocardial
infarction, and he was discharged with a diagnosis of
arteriosclerotic heart disease with coronary sclerosis.

According to an October 1975 VA medical record, the veteran was
admitted to a VA medical facility with complaints of severe chest
pain.  The record indicated that the veteran had experienced a
myocardial infarction in 1959 and in 1961.  A coronary angiograph
showed a 70% occlusion of the left main artery, complete
occlusion of the left anterior descending and circumflex
arteries, and 50% to 60% occlusion of the proximal portion of the
right coronary artery.  The veteran subsequently underwent
quadruple coronary bypass surgery.
A November 14, 1988, VA record indicated that the veteran walked
into a VA clinic complaining of back pain when he immediately
went into ventricular fibrillation.  A VA report of death summary
disclosed that the veteran's medical history was significant for
diabetes mellitus, coronary artery disease, known atherosclerotic
heart disease, and a coronary artery bypass.  He was brought to
the cardiac care unit with the impression of "cardiogenic shock
with cardiopulmonary arrest, post code, diabetes mellitus."  With
a history of only a 15% ejection fraction, diabetes, and his
heart disease, a very poor prognosis was given.  He was
pronounced dead later that day.

A certificate of death, dated in November 1988, disclosed that
the immediate cause of the veteran's death was cardiogenic shock
due to, or as a consequence of, acute myocardial infarction and
arteriosclerotic heart disease.

At the time of his death, the veteran was service-connected for
complete paralysis of the left radial nerve, a right foot wound,
right arm wounds, a wound of the left abdominal wall, and a wound
scar of the left Achilles tendon.

The Board determined in its December 1989 appellate decision that
the veteran died in November 1988 of cardiogenic shock due to an
acute myocardial infarction and atherosclerotic heart disease,
and that atherosclerotic heart disease was not caused by or
etiologically related to a service-connected disability or
combination of disabilities.

The additional evidence submitted since the December 1989
appellate Board decision includes two statements from the
appellant, dated in July 1992 and November 1992, that document
the veteran's life and allege that the "stress and pain" of his
service-connected disabilities led to a major heart attack that
caused his death.  Also submitted were duplicate copies of the
death certificate and certificate of discharge from service.

After a review of the record, the Board concludes that the
evidence submitted since our December 1989 appellate decision as
to the issue of entitlement to service connection for the cause
of the veteran's death, which consists of the additional
allegations of the appellant, is new in that it is not
duplicative of material presented to the Board for its
consideration in 1989, but it is not material.  "Material"
evidence must be of sufficient weight or significance (assuming
its credibility, see generally, Justus v. Principi, Vet.App. 510,
513 (1992)) that there is a reasonable possibility that the new
evidence, when viewed in the context of all the evidence, both
new and old, would change the outcome.  Cox v. Brown, 5 Vet.App.
95, 98 (1993).

The additional evidence does not support a finding that the
veteran incurred arteriosclerosis in service or that
arteriosclerosis was manifested to a degree of 10 percent or more
within one year thereafter, nor does it indicate that his
service-connected complete paralysis of the left radial nerve,
right foot wound, right arm wounds, wound of the left abdominal
wall, and wound scar of the left Achilles tendon, was causally or
etiologically related to his arteriosclerosis that led to an
acute myocardial infarction and cardiogenic shock that caused his
death.  The Board understands that the appellant believes that
the veteran's service-connected disabilities, and resulting
stress, so weakened his body that they eventually caused his
death because his body was unable to resist the adverse effects
of a heart condition; however, the appellant lacks the medical
expertise to enter an opinion regarding either the nature of the
veteran's cause of death or a causal relationship between
arteriosclerosis and his service-connected disabilities.  See
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).  Hence, the Board
finds that the evidence submitted since the December 1989
appellate decision does not constitute new and material evidence
so as to permit reopening of the claim of entitlement to service
connection for the cause of the veteran's death.

ORDER

New and material evidence not having been submitted to reopen a
claim for entitlement to service connection for the cause of the
veteran's death, that benefit remains denied.

          BETTINA S. CALLAWAY
          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 so assigned.

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 that
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 that
appears on the face of this decision constitutes the date of
mailing and the copy of this decision that you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.