Citation Nr: 0504031	
Decision Date: 02/15/05    Archive Date: 02/22/05

DOCKET NO.  03-29 356	)	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

K.S. Hughes, Counsel







INTRODUCTION

The veteran served in the Philippine Commonwealth Army from 
December 1941 to September 1942 and in the Regular Philippine 
Army from May 1945 to February 1946.  He was a prisoner of 
war from April 1942 to September 1942.  He died in August 
1960 and the appellant is his surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a February 2003 rating decision by a Regional 
Office (RO) of the Department of Veterans Affairs (VA).

Although the February 2003 rating decision, August 2003 
Statement of the Case, and Supplemental Statements of the 
Case dated in January and February 2004 reflect that the RO 
considered the issue of entitlement to service connection for 
the cause of the veteran's death on the merits, the Board is 
required to determine whether new and material evidence has 
been presented when a claim has been previously disallowed 
based upon the same factual basis.  See Barnett v. Brown, 83 
F.3d 1380, 1384 (Fed. Cir. 1996).  For this reason, the Board 
has listed the issue on the title page as to this matter as 
whether new and material evidence has been submitted to 
reopen the claim for service connection for the cause of the 
veteran's death. 

The issue of entitlement to service connection for the cause 
of the veteran's death is addressed in the REMAND portion of 
the decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Entitlement to service connection for the cause of the 
veteran's death was denied by a June 1961 rating decision.  

2.  Evidence submitted since the June 1961 rating decision is 
so significant, by itself and in connection with evidence 
previously assembled, that it must be considered in order to 
fairly adjudicate the claim.


CONCLUSIONS OF LAW

1.  The June 1961 rating decision which denied entitlement to 
service connection for the cause of the veteran's death is 
final.  38 U.S.C.A. § 7105(c) (West 2002).

2.  Evidence received since the June 1961 rating decision is 
new and material, and the appellant's claim of entitlement to 
service connection for the cause of the veteran's death is 
reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 
(2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In November 2000, the President signed into law the Veterans 
Claims Assistance Act of 2000 (VCAA), which substantially 
amended the provisions of chapter 51 of title 38 of the 
United States Code, concerning the notice and assistance to 
be afforded to claimants in substantiating their claims.  
VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as 
amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002)).  

VA subsequently published regulations, which were created for 
the purpose of implementing many of the provisions of the 
VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified 
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 
3.326(a) (2003)).  

The Board believes that the evidence has been developed to 
the extent necessary to adjudicate the issue of whether new 
and material evidence has been submitted to reopen a claim 
for service connection for the cause of the veteran's death.  

As will be discussed in greater detail, the Board finds that 
new and material evidence has been submitted to reopen the 
claim of entitlement to service connection for the cause of 
the veteran's death.  The Board also finds that additional 
evidentiary development is necessary before this claim can be 
adjudicated on the merits.  This development will be 
discussed in greater detail in the remand portion of this 
document.  

Analysis

Generally, a final rating decision or Board decision may not 
be reopened and allowed, and a claim based on the same 
factual basis may not be considered.  38 U.S.C.A. §§ 7104, 
7105.  Under 38 U.S.C.A. § 5108, however, "[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."  

Under 38 C.F.R. § 3.156(a), "new and material evidence" 
means evidence not previously submitted to agency decision 
makers which bears "directly and substantially" upon the 
specific matter under consideration.  Such evidence must be 
neither cumulative nor redundant, and, by itself or in 
connection with evidence previously assembled, such evidence 
must be "so significant that it must be considered in order 
to fairly decide the merits of the claim."  See Hodge v. 
West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  

The Board also notes that an amended version of 38 C.F.R. 
§ 3.156(a) is effective only for claims filed on or after 
August 29, 2001.  As such, this revision does not apply in 
the present case.  66 Fed. Reg. 45620-45630 (Aug. 29, 2001) 
(codified as amended at 38 C.F.R. § 3.156(a)). 

In this case, the appellant's claim of entitlement to service 
connection for the cause of the veteran's death was denied in 
a June 1961 rating decision on the basis that the available 
evidence failed to establish any relationship between the 
veteran's military service and the cause of his death.  This 
rating decision is considered final, although the claim may 
be reopened if new and material evidence is submitted; and if 
the claim is reopened, then it will be reviewed on a de novo 
basis.  38 U.S.C.A. §§ 5108, 7104; Evans v. Brown, 9 Vet. 
App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991).

Subsequent to the June 1961 rating decision, the appellant 
submitted additional documentation regarding the veteran's 
death.  These records include statements from J. P. Zabala, 
M.D.  Specifically, the statements include Dr. Zabala's 
recollection that he treated the veteran for beriberi from 
1957 to 1960.  These statements were not previously of record 
and, thus, constitute new and material evidence.  
Accordingly, the appellant's claim of entitlement to service 
connection for the cause of the veteran's death is reopened.

Having reopened this claim, the Board has first considered 
whether de novo Board action is appropriate at this time.  
However, as indicated below, the Board has preliminarily 
determined that additional development is necessary.  A final 
Board decision on this claim will therefore not be issued 
until such development is completed.  






ORDER

New and material evidence having been submitted, the claim of 
entitlement to service connection for the cause of the 
veteran's death is reopened; to this extent only, the appeal 
is granted.


REMAND

In June 2004, the Board received additional medical evidence 
in support of the appellant's claim.  This evidence was not 
accompanied by a waiver of initial consideration by the 
agency of original jurisdiction (AOJ).  In this regard, the 
Board notes that in Disabled American Veterans, et. al., v. 
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 
2003), the United States Court of Appeals for the Federal 
Circuit (Federal Circuit) determined that 38 C.F.R. 
§ 19.9(a)(2) was inconsistent with 38 U.S.C. § 7104(a).  The 
Federal Circuit invalidated 38 C.F.R. § 19.9(a)(2) because, 
in conjunction with 38 C.F.R. § 20.1304, it allowed the Board 
to consider additional evidence without having to remand the 
case to the AOJ for initial consideration and without having 
to obtain a waiver from the appellant.  

Because the RO, as the agency of original jurisdiction, has 
not reviewed the additional medical evidence and has not 
prepared a Supplemental Statement of the Case discussing this 
evidence, the Board is compelled to remand this case to the 
RO for the issuance of a Supplemental Statement of the Case.

In this regard, it is noted that a March 2001 Report of Field 
Examination includes a deposition of the claimant in which 
she affirms that she "has never filed any claim with the VA 
as the surviving spouse of the veteran."  Inasmuch as 
subsequent communications bearing the claimant's signature 
have been received, it should be confirmed that the veteran's 
surviving spouse is the signatory of these communications.

Although the Board regrets the delay, the Court has made it 
clear that failure to adequately show compliance with VCAA 
notice requirements and Board failure to enforce compliance 
with such notice requirements is remandable error.  Huston v. 
Principi, 17 Vet. App. 195, 202 (2003).  

Accordingly, the case is REMANDED to the RO for the 
following:

1.  The RO should obtain confirmation 
that the claimant in the present appeal 
is the surviving spouse of the veteran.

2.  After completion of the above and any 
additional development deemed necessary, 
to include requesting copies of 
additional evidence from the appellant or 
Dr. Zabala in support of Dr. Zabala's 
statements, the RO should readjudicate 
the appellant's claim, with application 
of all appropriate laws and regulations, 
including consideration of any additional 
information obtained as a result of this 
remand.  The RO should specifically 
document its consideration of all 
evidence received since the issuance of 
the February 2004 Supplemental Statement 
of the Case.  If the decision remains 
adverse to the appellant, she should be 
furnished a Supplemental Statement of the 
Case and afforded an appropriate period 
of time within which to respond thereto.  
The case should then be returned to the 
Board for further appellate review, if 
otherwise in order.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate 
action must be handled in an expeditious manner.  See The 
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), 
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 
5109B, 7112).





_______________________________________
	WARREN W. RICE, JR.
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs



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