BVA9400631
DOCKET NO. 91-19 957 ) DATE
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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: L. Poe Leggette, Attorney-at-Law
WITNESSES AT HEARINGS ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
T. Sternad, Associate Counsel
INTRODUCTION
The veteran had active service from November 1927 to November 1933
and from April 1942 to September 1945. The veteran died on August
[redacted] 1981.
This case was previously before the Board of Veterans' Appeals
(hereinafter the Board) in June 1983 on the issue of entitlement to
service connection for the cause of the veteran's death, with
reconsideration of the same issue in February 1985. In March 1986,
the case was again before the Board on the issue of whether a new
factual basis had been submitted to establish entitlement to service
connection for the cause of the veteran's death.
The Board denied the appellant's appeal in June 1983, finding that
chronic obstructive pulmonary disease with emphysema, lung cancer,
and arteriosclerotic heart disease with angina, which were conditions
contributing to death, were not present in service and that heart
disease and cancer were not manifested to a compensable degree within
one year after termination of active duty. In its reconsideration of
February 1985, the Board concluded that the prior Board decision was
reasonably supported by the evidence of record at that time and that
there was no obvious material error in the decision. In March 1986,
the Board concluded that the evidence submitted since the prior Board
decision in June 1983 did not establish that the cause of the
veteran's death was in any way related to any service-connected
disability. The appellant submitted additional documentary evidence
in 1990, asking that her claim of entitlement to service connection
for the cause of the veteran's death be reopened.
This matter came before the Board on appeal from a rating decision of
April 1990 from the Cleveland, Ohio, Regional Office (hereinafter
RO), which denied the appellant's request to reopen the claim for
entitlement to service connection for the cause of the veteran's
death. The RO made the determination that the additional evidence
submitted by the appellant did not form a new basis for establishing
a cause and effect relationship between the injury suffered in
service and the veteran's death. The notice of disagreement was
received in May 1990. The statement of the case was issued in
September 1990. A substantive appeal was received in January 1991.
A hearing was held before a hearing officer at the RO in March 1991.
The appeal was received at the Board and docketed in May 1991. A
hearing was held on October 29, 1991, in Washington, D.C., before
Lawrence Sullivan and Ursula Powell, who are members of the Board
section rendering the final determination in this claim and who were
designated by the Chairman to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b) (West 1991). The appellant at that time was
represented in the appeal by Veterans of Foreign Wars of the United
States. In February 1992, the Board determined that the appellant
had not submitted new and material evidence to reopen the claim for
service connection for the cause of the veteran's death.
The Board decision in February 1992 was appealed to the United States
Court of Veterans Appeals (hereinafter the Court). The veteran was
represented before the Court and is represented currently by L. Poe
Leggette, Attorney-at-Law. In June 1993, the parties to the appeal
filed a joint motion to remand the appeal to the Board. In July
1993, the Court ordered that the motion was granted and the Board
decision was vacated. The matter was remanded, pursuant to 38
U.S.C.A. § 7252(a) (West 1991), for compliance with the instructions
in the motion to remand.
We note that the appellant has raised the issue of clear and
unmistakable error in prior rating decisions and in prior Board
decisions. The issue of clear and unmistakable error in prior Board
decisions currently is subject to a stay pending a decision from the
Court of Appeals for the Federal Circuit in the case of Smith v.
Principi, 3 Vet.App. 378 (1992). Therefore, this decision does not
address that issue and involves only a decision on the merits of the
issue of 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.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the veteran died from disabilities which
he incurred during his period of active service involving residuals
of a punctured lung which created serious breathing problems. She
asserts that the weakness of the lung made the veteran susceptible to
pulmonary disease, that he had difficulty in breathing after
separation from service, and that he died of a service-connected
disease as a result of a punctured lung.
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. The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the appellant's claim for
entitlement to service connection for the cause of the veteran's
death. 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 the preponderance of the evidence is against a finding
that the appellant has submitted new and material evidence to reopen
the 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. The Board denied entitlement to service connection for the cause
of the veteran's death in June 1983, February 1985, and March 1986.
3. Additional evidence submitted since the last final Board decision
in March 1986 is not material, inasmuch as it shows only that the
veteran had respiratory problems after separation from service and
was treated for pulmonary disease, information which was already of
record when the Board last considered this case in 1986.
CONCLUSIONS OF LAW
1. The evidence received since the Board's denial in March 1986 of
entitlement to service connection for the cause of the veteran's
death is not new and material and the appellant's claim is not
reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156,
19.194 (1993)
2. The decisions of the Board in 1983, 1985 and 1986 which denied
the appellant's claim of entitlement to service connection for the
cause of the veteran's death are final. 38 U.S.C.A. §§ 1110, 1310,
5108 (West 1991); 38 C.F.R. § 3.312 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We find that the appellant has presented evidence of a "well-
grounded" claim within the meaning of 38 U.S.C.A. § 5107. That is,
the claim of entitlement to service connection for the cause of the
veteran's death is plausible. Murphy v. Derwinski, 1 Vet.App. 78
(1990). We further find that the Department of Veterans Affairs
(hereinafter VA) has properly assisted the appellant in developing
the facts pertinent to her claim. 38 U.S.C.A. § 5107.
At the time of the veteran's death, service connection was in effect
for traumatic arthritis with residuals of rib fractures and deformity
of the symphysis pubis, ischium, and left ilium, evaluated as 30
percent disabling, and for postoperative residuals of a pilonidal
cystectomy, which was evaluated as noncompensable. The certificate
of death demonstrates that the veteran died on August [redacted] 1981, at
the age of 73 and the cause of death was cardiopulmonary arrest due
to chronic obstructive pulmonary disease with emphysema and
arteriosclerotic heart disease with angina. Other significant
conditions contributing to death but not related to the cause
included status post tracheostomy and cancer of the lung.
The Board denied entitlement to service connection for the cause of
the veteran's death in June 1983. That decision was reconsidered in
February 1985 and was again denied. In March 1986, the Board found
that a new factual basis had not been established so as to grant
entitlement to the cause of the veteran's death. Once a claim for
service connection has been denied and the decision has become final,
new and material evidence must be received to reopen it.
Colvin v. Derwinski,
1 Vet.App. 171 (1991). "New" evidence is not cumulative of that
which is already part of the record. Id. "Material" evidence is
relevant and probative as to the issue presented. Id. Evidence must
be both new and material to reopen a claim. 38 U.S.C.A. § 5108. To
be new and material evidence, there must be a reasonable possibility
that the new evidence, when viewed in the context of all of the
evidence, both new and old, would change the outcome. Id.
The evidence of record when the Board last considered it in March
1986 included the veteran's service medical records which demonstrate
that he was injured in August 1944 in an automobile accident in which
several ribs were fractured. Contemporaneous clinical records
reflect the treating physician's notations that, at one point, there
was a pulmonary disorder. An X-ray report of August 1944 reflects
that the pulmonary consolidation had cleared. No pulmonary disorder
was noted on the examination at the time of the veteran's separation
from active service. In a rating action of October 1945, however,
the veteran was awarded service connection for "fracture of ribs,
with puncture of lung, no residuals," and a noncompensable rating was
assigned.
VA treatment records for the period from 1947 to 1955 demonstrate
that the veteran complained of chest pain and shortness of breath.
Examination reports and chest X-rays during that time show clinical
findings of residuals of rib fractures, but no pulmonary
abnormalities were noted.
A VA medical record of a hospitalization in April 1968 demon-strates
diagnoses of obstructive pulmonary emphysema and chronic bronchitis.
At that time, the veteran reported that he had had wheezing spells
and a productive cough for several years and that the condition
became worse as he grew older. It was noted that the veteran had
smoked from 2 to 3 packs of cigarettes per day for most of his adult
life. The examination revealed no active disease in the lungs.
The veteran was hospitalized at a VA medical facility from March 1981
until his death in August 1981, during which time the diagnoses
included chronic obstructive pulmonary disease with emphysema and
cancer of the lungs.
In letters dated in January 1982 and May 1985, Dr. Jon Tipton stated
that, in his opinion, the veteran developed severe pulmonary disease
aggravated early by trauma to his lung and later by pulmonary
malignancy which predisposed him to the terminal pulmonary failure
which caused his death.
At hearings before a hearing officer in July 1985 and before a
traveling section of the Board in November 1985, the appellant
testified that the veteran's lung was punctured as a result of an
accident during service and that the puncture caused the emphysema
which ultimately caused his death. She testified that the punctured
lung was not reflected on various hospital records after the
veteran's separation from service and stated that she wanted his
records to be corrected.
The evidence of record also contains several statements from friends
and acquaintances of the veteran. These statements contain
recollections that the veteran suffered from chest pain and shortness
of breath after separation from service.
The evidence added to the record since 1986, in an attempt to reopen
the claim of service connection for the cause of the veteran's death,
included copies of numerous documents which were already of record,
including the veteran's service medical records, VA examination
reports, copies of hearing transcripts, service regulations, and
newspaper articles. Transcripts of hearings of April 1990, March
1991, and October 1991 are also of record and reflect statements and
contentions previously made by the appellant. Duplicated copies of
lay statements previously considered were also submitted Such
evidence is not new and material inasmuch as it is cumulative of
evidence already of record and previously considered.
The only additional evidence received at the time of the February
1992 Board decision which was not previously considered was a report
of a hospitalization of the veteran in November 1976 at The Ohio
State University Hospital for treatment of pneumococcal pneumonia,
chronic obstructive pulmonary disease with possible silicosis, and
mild psoriasis. The report noted the veteran's statements that he
had a 10-year history of sandblasting from age 35 to 45 and that,
after having the job for 10 years, he was told that he had lung
disease secondary to this occupation. He also reported a 20-pack-
year history of cigarette smoking but reported that he had not smoked
for the past 10 years. We find that this evidence is new but not
material, inasmuch as it does not relate the veteran's pulmonary
disease to a puncture of the lung which apparently occurred in
service approximately 30 years earlier. The November 1976 hospital
report from The Ohio State University Hospital would not change the
outcome and is not material evidence to reopen the claim for
entitlement to service connection for the cause of the veteran's
death.
In September 1993, subsequent to the Order of the United States Court
of Veterans Appeals which vacated the February 1992 Board decision
and remanded the issue, the appellant submitted an additional
statement from Dr. Jon P. Tipton, dated August 30, 1993. We do not
find that this statement is new and material evidence in that it is
cumulative of evidence already of record and considered by the Board.
The statement contains Dr. Tipton's interpretation of medical
evidence which is of record and which was considered previously, and
again provides his opinion that the wound in the pneumothorax
sustained by the veteran during service contributed to his problem
which resulted in the cause of the veteran's death.
After a careful review of the evidence of record, we conclude that
the additional evidence received since the March 1986 Board decision
is not new and material evidence to reopen the claim for entitlement
to service connection for the cause of the veteran's death.
Accordingly, the claim is not reopened and the Board's 1986 decision
remains final.
We note that the Joint Motion to Remand this appeal granted by the
United States Court of Veterans Appeals contains several instructions
to the Board for consideration of evidence which was of record prior
to the last final Board decision in March 1986, and involve the issue
of clear and unmistakable error in prior Board decisions which is the
subject of a Department-wide stay this time and not adjudicated in
this decision. The current appeal before the Board is limited to a
determination as to whether new and material evidence has been
received since the last final Board decision in March 1986. At this
point, the prior Board decisions are considered to be final, inasmuch
as the issue raised as to whether that Board decision contains clear
and unmistakable error has not been adjudicated and determined in the
affirmative.
One of the items listed in the Joint Motion to Remand requests that
the Board address the appellant's contention that an October 1944
decision of an Army medical disposition board found that the
veteran's condition was "Class C" which meant that the veteran was
considered to be 100 percent disabled. The RO is not bound by Army
medical dispositions as to the evaluation of a service-connected
disability. The RO evaluates all of the evidence of record,
including the service medical records, and assigns ratings pursuant
to the criteria set forth in the VA's Schedule for Rating
Disabilities, 38 C.F.R. Part 4. Therefore, regardless of the "Class
C" designation assigned by the Army medical disposition board, the RO
is not bound to assign a rating equivalent to "Class C."
Another item listed in the Joint Motion to Remand concerns the
appellant's contention that the Board failed to comply with its duty
to assist in not ordering the RO to obtain statements from VA
physicians who examined the veteran before he died and from private
physicians who treated the veteran in the 1940's following his period
of service. As noted above, we find that the VA has satisfied its
duty to assist the appellant in developing the facts pertinent to the
claim for entitlement to service connection for the cause of the
veteran's death. The evidence of record contains the VA medical
records of the hospitalization from March 1981 until the veteran's
death in August 1981. These records include the observations and
opinions of the VA physicians who were treating the veteran at that
time. The VA's duty to assist does not extend to contacting each of
the VA treating physicians and requesting personal statements from
them. The VA satisfied its duty to assist when it obtained the
veteran's VA medical records. It would be unreasonable to expect the
VA physician to enter additional comments from that already included
in the medical records for an event which happened more than 12 years
earlier. Similarly, the VA satisfied the duty to assist when it
requested the veteran's treatment records from the private physicians
identified in the record. The veteran's private treatment records
are enough and include the observations and opinions of the private
treating physician. Also, there is no indication that these records
would contain any evidence which would signficantly alter the Board's
decision.
ORDER
New and material evidence has not been submitted to reopen the claim
of entitlement to service connection for the cause of the veteran's
death and the claim remains denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
U. R. POWELL PAUL M. SELFON, M.D.
LAWRENCE M. SULLIVAN
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.