Citation Nr: 0003877 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-05 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran had pre-war service from September to December 1941, was in a beleaguered status from December 1941 to April 1942, was a prisoner of war (POW) from April to September 1942, had recognized guerilla service from May to November 1945, and had Regular Philippine Army service from November 1945 to June 1946. The veteran died in March 1988, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. This case was previously before the Board in February 1999, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. In an October 1990 decision, the Board affirmed a March 1989 denial of service connection for the cause of the veteran's death by the RO. 2. Evidence received since the October 1990 Board decision with regard to the cause of the veteran's death does not bear directly or substantially upon the issues at hand, is essentially duplicative or cumulative, and is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The October 1990 Board decision affirming the denial of service connection for the cause of the veteran's death is final. 38 U.S.C.A. § 4004(c) (West 1988) (now 38 U.S.C.A. § 7105 (West 1991)); 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7104 (West 1991); 38 C.F.R. § 19.193 (1990) (now 38 C.F.R. § 20.1103 (1999)). 2. Evidence received since the October 1990 Board decision is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records are negative for a chronic pulmonary disease. An April 1946 separation examination report notes a normal clinical evaluation of the lungs. According to the report, a chest X-ray showed minimal fibroid infiltration at the 1st and 2nd interspaces of the left apex. The veteran filed a claim of entitlement to service connection for pulmonary tuberculosis in October 1956. An October 1956 affidavit from T.A., the veteran's neighbor, indicates that the veteran informed him that he experienced back and chest pain during service, and that pulmonary tuberculosis was diagnosed in 1946. An affidavit from a second neighbor, C.B., reports that the veteran complained of fever and chills, and vomited blood on one occasion. The veteran reportedly informed him that pulmonary tuberculosis was diagnosed in 1946. A June 1957 affidavit from a service comrade, P.S., notes that the veteran complained of back and chest pain during service in approximately 1945, and experienced "streak blood sputum with afternoon fever." He explained that because medicine was scarce, the veteran did not receive the proper medical treatment. He reported that pulmonary tuberculosis was diagnosed following an X-ray study in 1946. On VA examination in March 1957, the veteran complained of pain in the left upper chest and back with frequent cough. A chest X-ray showed infiltrations in the right upper lung field, which were ill defined with multiple radiolucent areas. Slight scarring was noted in the left lung. Cultures were negative after eight weeks, and a smear on concentration was negative. The diagnostic impression was pulmonary tuberculosis, chronic, moderately advanced, and inactive; and bronchiectasis of the right upper lobe associated with the pulmonary tuberculosis. A June 1957 private medical report notes that a bronchography performed earlier that month showed "roentegen evidence of saccular type of bronchiectasis overlying the posterior segment of the right upper lobe." Based on this evidence, a September 1957 rating decision denied service connection for pulmonary tuberculosis. The veteran sought to reopen his claim for service connection in June 1986. In support of his claim, he submitted a May 1962 private X-ray report showing moderately advanced pulmonary tuberculosis, and bilateral fibrocaseous with cavitations on the right. The veteran gave a history periodic chest and back pain, coughing productive of yellowish mucoid sputum, and body weakness on VA examination in October 1986. He related that he sought treatment for pulmonary tuberculosis several times since his discharge from service, and indicated that he was hospitalized for approximately eight months in 1955. He reported recurrent symptoms since that time, and indicated that he was not currently taking anti-tuberculosis medication. The pertinent diagnoses were pulmonary pathology of both lungs with suspicious cavitation, etiology undetermined, and bilateral pleuropneumonitis, mid-lung and basal. In January 1987, the RO denied service connection for pleuropneumonitis, and determined that new and material evidence had not been submitted to reopen the claim for service connection for pulmonary tuberculosis. The veteran filed a notice of disagreement (NOD) with this decision in April 1987, and submitted a substantive appeal (Form 9) in September 1987. In a joint affidavit dated the following month, J.M. and M.N., service comrades, opined that the veteran's "current diseases" were related to his internment as a POW. An October 1987 affidavit from Dr. E.A. notes that he treated the veteran in early 1944 for "frequent heavy coughing and colds with low vital capacity with acute malnutrition as a result of his POW experiences, weak lungs and heart problems." During subsequent treatment, he reportedly found that the veteran's "diseases" were "complicated and/or aggravated" since his initial treatment in 1944. The physician related that he continued to treat the veteran for his "POW incurred diseases" following his separation from service. A death certificate discloses that the veteran died at age 77 in March 1988, with the immediate cause of death listed as acute respiratory distress, the antecedent cause was listed as pulmonary tuberculosis, the underlying cause was listed as bronchiectasis and chronic obstructive pulmonary disease, and left ventricular hypertrophy was listed as a significant condition contributing to death. At the time of the veteran's death, service connection was not in effect for any disability. The appellant filed a claim of entitlement to service connection for the cause of the veteran's death in June 1988. The appellant submitted several documents in support of her claim in January 1989. A March 1946 Affidavit for Philippine Army Personnel notes that the veteran experienced fever and dysentery as a POW with no permanent disability, and was treated at home for beriberi from June 1942 to April 1945 with no permanent disability. A May 1956 physical examination report shows moderately advanced, active pulmonary tuberculosis. An October 1982 certificate notes that the veteran served with the Armed Forces of the Philippines from February 1935 to July 1957. A certificate from the Headquarters of the Armed Forces of the Philippines Medical Center, dated in December 1988, indicates that the veteran was admitted for treatment in August 1955, and was transferred to "RHG" in June 1956, with a final diagnosis tuberculosis of the lung probable, advanced minimal active. A March 1989 rating decision denied service connection for the cause of the veteran's death. The appellant filed a notice of disagreement with this decision in November 1989. She submitted a substantive appeal in February 1990, and attached a June 1956 Certificate of Disability for Discharge in support of her claim. This record reports that the veteran's pulmonary tuberculosis had its onset in June 1955, and indicates that he became unfit for duty in August 1955. The Board affirmed the March 1989 rating decision, in its entirety, in October 1990. According to a June 1976 certification, associated with the claims folder in August 1994, notes that the Philippine Veterans Affairs office granted service connection for pulmonary tuberculosis, and assigned a 100 percent disability rating from June 1976 to July 1977. In July 1995 correspondence, the appellant sought to reopen her claim for service connection for the cause of the veteran's death. She attached copies of the March 1946 Affidavit for Philippine Army Personnel, the April 1946 examination report, and the June 1956 Certificate of Disability for Discharge. A May 1993 letter from the Office of the Local Civil Registrar certifies that the veteran died in March 1988, due to acute respiratory distress and pulmonary tuberculosis. A February 1995 certificate notes that the Philippine Veterans Affairs office assigned a 100 percent evaluation for the veteran's pulmonary tuberculosis from July 1983 until the time of his death. In addition, the appellant included a booklet containing general information about tuberculosis. In January 1996, the RO found that new and material evidence had not been submitted to reopen the claim for service connection for the cause of the veteran's death. The appellant filed a notice of disagreement with this decision the following month. She submitted a substantive appeal in December 1996, and attached affidavits from two service comrades. In the March 1996 affidavits, M.F. and C.D. report that the veteran experienced "beriberi, malaria, malnutrition, dysentery" during his internment as a POW. In March 1997, the appellant submitted a private medical report from Dr. R.P. reflecting October 1982 treatment for pulmonary tuberculosis, moderately advanced, activity undetermined, and bronchiectasis with pneumonitis bases. A July 1997 certificate from the Philippine Veterans Affairs office reiterates that a 100 percent evaluation was assigned for the veteran's pulmonary tuberculosis from July 1983 until the time of his death. A report from Dr. V.B., dated later that month, indicates that the veteran underwent several photofluorography examinations. He explained that these films were destroyed during a typhoon, but attached copies of the X-ray reports. These records show findings of pulmonary tuberculosis from December 1971 to April 1987. A July 1997 private hospital report certifies that the veteran was admitted for treatment in June 1956. The record fails to report the disorder for which the veteran received treatment, and indicates that the clinical records associated with the treatment were destroyed by physical/natural calamities. An August 1997 report from Dr. M.R. relates that the veteran received treatment for hypertensive cardiovascular disease, bronchiectasis, and pulmonary tuberculosis in February 1988. The General Headquarters of the Armed Forces of the Philippines provided a summary of information regarding the veteran's period of service in August 1997. In October 1998, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for the cause of the veteran's death. The Board remanded the case in February 1999. Following completion of the requested development, the RO again found that new and material evidence had not been submitted to reopen the appellant's claim in September 1999. Analysis As indicated above, an October 1990 Board decision denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. Decisions of the Board are final and not subject to revision on the same factual basis, but may be reopened on the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156(a); Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998), the Court of Appeals for the Federal Circuit indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Following Hodge, the United States Court of Appeals for Veterans Claims (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. Whether new and material evidence is submitted is a jurisdictional test, with reopening of a claim required if such evidence is submitted, and prohibited if such evidence is not submitted. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). See also Winters, 12 Vet. App. 203 (1999). In addressing whether new and material evidence has been submitted, the Board must review the evidence before VA at the time of the prior decision, identify any additional evidence now before VA, and determine whether that additional evidence is both new and material. If so, then the claim will be reopened. If not, that is where the analysis must end as the Board lacks jurisdiction to further review the claim. See Barnett, 83 F.3d at 1383-84. New and material evidence is defined as 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). In Hodge, the U.S. Court of Appeals for the Federal Circuit noted that not every piece of new evidence is "material," but that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually alter a rating decision. Id., 155 F.3d at 1363. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). To establish service connection for the cause of the veteran's death, the evidence must show 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; 38 C.F.R. § 3.312. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a). In order to show that a disability is proximately due to or the result of a service-connected disease or injury, the appellant must submit competent medical evidence showing that the disabilities are causally-related. Jones v. Brown, 7 Vet. App. 134, 137 (1994). For the purposes of section 1110 of this title, and subject to the provisions of section 1113 of this title, in the case of any veteran who served for ninety days or more during a period of war and a chronic disease becomes manifest to a degree of ten percent or more within one year from the date of separation from such service, or pulmonary tuberculosis becomes manifest to a degree of ten percent or more within three years from the date of separation from such service, such disease shall be presumed to have been incurred in or aggravated by such service notwithstanding there is no record of evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1133 (West 1991); 38 C.F.R. § 3.307, 3.309 (1999). Where there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease which is a recognized cause of any of the disease within the purview of section 1112 of this title, has been suffered between the date of separation from service and the date of onset of any such diseases, or the disability is due to the veteran's own willful misconduct, service connection pursuant to section 1112 will not be in order. 38 U.S.C.A. § 1113 (West 1991). When a former prisoner of war who was interned or detained as such for not less than 30 days incurs avitaminosis, chronic dysentery, helminthiasis, malnutrition (including optic atrophy associated with malnutrition), pellagra, any other nutritional deficiency, psychosis, any of the anxiety states, dysthymic disorder (or depressive neurosis), organic residuals of frostbite if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite, post-traumatic osteoarthritis, irritable bowel syndrome, peptic ulcer disease, peripheral neuropathy except where directly related to infectious causes, beriberi, or beriberi heart disease, to include ischemic heart disease in a former prisoner of war who experienced localized edema during captivity, to a degree of 10 percent or more at any time after service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. These presumptions are 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 (1999). Based on the foregoing, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for the cause of the veteran's death. The Board notes that in July 1995, the appellant submitted a March 1946 Affidavit for Philippine Army Personnel, an April 1946 examination report, and a June 1956 Certificate of Disability for Discharge. However, this evidence was of record at the time of the October 1990 Board decision. Thus, it clearly is not new. The newly submitted evidence includes private medical reports regarding treatment received by the veteran in June 1956, October 1982, and February 1988, as well as reports regarding X-ray findings from December 1971 to April 1987. This evidence, however, is fundamentally cumulative of other evidence previously submitted and considered in October 1990. Specifically, the medical evidence of record considered by the Board in October 1990 failed to establish that a service- connected disability caused the veteran's death or, materially or substantially contributed to his death, and the medical evidence submitted since the final decision similarly fails to relate the cause of the veteran's death to service, or a service-connected disability. While the May 1993 report from the Office of the Local Civil Registrar was not of record at the time of the Board's decision in October 1990, it is essentially cumulative of information contained in the certificate of death, which was previously of record. Accordingly, this report is redundant. Lay evidence of record at the time of the October 1990 Board decision alleged that the veteran's death was caused by pulmonary tuberculosis that had its inception during service. It was further contended that the physical and mental deprivations endured by the veteran during his internment as a POW made him more susceptible to the infirmities that eventually contributed to his death. Statements received subsequent to the October 1990 decision (including several written statements by the appellant and affidavits from M.F. and C.D.) simply reiterate the aforementioned allegations, and are merely redundant of evidence previously of record, and thus not new. See Reid v. Derwinski, 2 Vet. App. 312 (1992). Although the August 1997 report from the General Headquarters of the Armed Forces of the Philippines was not of record in October 1990, the information contained therein is essentially duplicative. The record simply summarizes the veteran's service records, which were of record at the time of the Board decision. The newly submitted evidence also includes certifications from the Philippine Veterans Affairs Office dated in June 1976, February 1995, and July 1997, regarding disability compensation evaluations awarded by the organization. However, these records do not show not show that a service- connected disability, as recognized by the United States Department of Veterans Affairs, caused the veteran's death or, materially or substantially contributed to his death. Thus, the records may not be considered new and material evidence. Lastly, it is noted that the appellant submitted a booklet containing general information regarding pulmonary tuberculosis. However, this evidence is not material, as it establishes no facts that would make the picture more complete as to the cause of the veteran's death. Overall, the newly furnished evidence is duplicative and cumulative of evidence of record in October 1990. As noted above, decisions of the Board are not subject to revision on the same factual basis. Even assuming arguendo that portions of the newly submitted evidence are new, not a single piece of such evidence is material within the meaning of 38 C.F.R. § 3.156(a). Such evidence does not in any way contribute to a more complete picture of the circumstances surrounding the cause of the veteran's death. See Hodge, 155 F.3d at 1363. In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court 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, because the evidence in this case is not new, it is not necessary to go on and determine whether it is material. As new and material evidence has not been submitted to reopen the veteran's claim for service connection for the cause of the veteran's death, under Elkins, supra. the Board need proceed no further. Indeed, the Board's analysis must end here. Butler v. Brown, 9 Vet. App. 167, 171 (1996). ORDER New and material evidence not having been submitted, the application to reopen the claim of service connection for the cause of the veteran's death is denied. Richard B. Frank Member, Board of Veterans' Appeals