Citation Nr: 0734360 Decision Date: 11/01/07 Archive Date: 11/19/07 DOCKET NO. 05-37 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served in the Philippine Commonwealth Army from December 1941 to January 1943 and September 1944 to July 1945, and the Regular Philippine Army in May 1946. He was a prisoner of war (POW) from May 1942 to January 1943. He died on February [redacted], 1968. The appellant is his surviving spouse. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision, wherein the RO found that the claim of entitlement to service connection for the cause of the veteran's death remained denied in the absence of new and material evidence. FINDINGS OF FACT 1. A January 2004 Board decision denied entitlement to service connection for the cause of the veteran's death. 2. Evidence received since the January 2004 Board decision is new but does not relate to the pertinent unestablished facts necessary to substantiate the claim of entitlement to service connection for the cause of the veteran's death. CONCLUSION OF LAW The evidence added to the record since the Board's January 2004 decision, denying the claim of entitlement to service connection for the cause of the veteran's death, is not new and material and the claim is not reopened. 38 U.S.C.A. §§ 5103(a), 5103A, 5108, 7104(a), (b) (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1100, 20.1105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a January 2004 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. In reaching its decision, the Board found that there was no probative medical evidence of pulmonary tuberculosis in service or within three years after separation from service; service connection was not in effect for any disability during the veteran's lifetime; and, that the cause of the veteran's demise was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2003). Evidence considered at the time of the January 2004 decision included a February 1968 death certificate, the veteran's birth certificate, marriage certificate and copies of the veteran's personnel records. The United States Court of Appeals for Veterans Claims (Court) affirmed the Board's decision in August 2005. The Board's decision is final. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1100. In 2005, the appellant sought to reopen the matter. Generally, a final decision issued by the Board may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1105 (2007). However, when new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible.") In an attempt to reopen her claim, since the last final decision in January 2004, the appellant has submitted evidence that includes three letters from lay witnesses. The witnesses state that the deceased veteran was captured by the Japanese, tortured and then later died of tuberculosis. In one statement, the affiant states that the veteran was contaminated with tuberculosis while in jail as a POW. The appellant also submitted duplicate copies of the veteran's death certificate, birth certificate, marriage certificate and personnel records. At the outset, the Board notes that the death certificate, birth certificate, marriage certificate and personnel records are not new. The Board considered the evidence in 2004; thus, it is not new and material evidence. While the lay statements are new, they are not material. The lay statements fail to indicate that the veteran's pulmonary tuberculosis became manifest in service, within three years after separation from service, or that the cause of the veteran's demise was proximately due to or the result of a service-connected disability. Lay witnesses are not competent to testify as to when a disease was contracted or what caused a person's death. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a lay person is not competent to give evidence of matters that require medical knowledge). See also Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation, even if new, do not constitute material evidence to reopen a previously denied claim). Given the absence of receipt of any new and material evidence, the claim of entitlement to service connection for the cause of the veteran's death is not reopened. The appeal is denied. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 20.1100. Duty to Notify and Duty to Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO notified the appellant of the information and evidence necessary to substantiate the claim to reopen entitlement to service connected death benefits and the respective responsibilities of each party for obtaining and submitting evidence by way of an April 2005 VA letter. The RO also notified the appellant that in order to reopen her claim she had to submit new evidence that was material to the claim. Additionally, the RO requested that the appellant submit any relevant evidence in her possession. Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, as noted above, the appellant was notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for benefit sought in the April 2005 letter. During the pendency of this appeal, the Court further redefined the requirements of the VCAA to include notice that a disability rating and an effective date for award of benefits would be assigned if service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board interprets the ruling in Dingess/Hartman as applying to any matter involving an award of a disability rating and/or an effective date for award of benefits. The August 2005 letter did not provide the appellant with notice of the laws regarding degrees of disability or effective dates for any grant of service connection. However, since no new disability rating or effective date for award of benefits will be assigned, any defect with respect to the content of the notice requirement was non-prejudicial. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of the appeal, the appellant submitted lay statements in an attempt to substantiate her claim, and she has not referred to any additional, unobtained, available, relevant evidence that would substantiate her claim. Thus, VA has satisfied all duties to notify and assist the appellant. ORDER New and material evidence not having been received, the claim of entitlement to service connection for the cause of the veteran's death is not reopened. The appeal is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs