Citation Nr: 1015367 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 05-04 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from May 1967 to May 1970. The Veteran died in September 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the case was remanded for additional development and to satisfy notice requirements. Although the RO implicitly reopened the appellant's claim of service connection for the cause of the Veteran's death by deciding the issue on the merits in the February 2004 rating decision, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the appellant's claim accordingly. The matter of entitlement to service connection for the cause of the Veteran's death based on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on her part is required. FINDINGS OF FACT 1. The Veteran died on September [redacted], 2000; the immediate cause of death was sepsis due to (or as a likely consequence of) end stage renal failure and diabetes mellitus; hypertension and cerebrovascular accident were listed as other significant conditions contributing to death but not resulting in the underlying cause of death. 2. An unappealed November 2000 rating decision denied service connection for the cause of the Veteran's death essentially on the basis that there was no evidence showing that any of his death-causing disabilities were related to his service. 3. Evidence received since the November 2000 rating decision includes evidence that tends to corroborate that the Veteran served in Vietnam during the Vietnam era (which would establish his entitlement to presumptive service connection for type 2 diabetes); relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for the cause of the Veteran's death may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis A November 2000 rating decision denied the appellant's claim of service connection for cause of the Veteran's death essentially because there was no relationship shown between the Veteran's causes of death (sepsis, end stage renal failure, and diabetes mellitus) and his service. See Analysis November 8, 2000 rating decision. The appellant did not appeal this decision and it became final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (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 active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service- connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service incurrence or aggravation of certain chronic diseases (including diabetes mellitus) may be presumed if they are manifested to a compensable degree within a year of a veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneiform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence of record in November 2000 consisted of a copy of the Veteran's death certificate showing that he died on September [redacted], 2000. His immediate cause of death was sepsis due to (or as a likely consequence of) end stage renal failure and diabetes mellitus. Hypertension and cerebrovascular accident were listed as significant conditions contributing to death but not resulting in the underlying cause of death. Notably, service in Vietnam was not shown. Evidence received since the November 2000 rating decision includes: * Service personnel records showing that the Veteran served in Thailand as a microwave radio repairman from August 1968 to June 1969, and was awarded a Vietnam Campaign Medal. * Service treatment records (STRs), including an April 1970 service separation physical examination report, that are silent for any complaints, findings, treatment, or diagnosis relating to sepsis, renal failure, diabetes mellitus, hypertension and/or a cerebrovascular accident. * August 1994 to June 1999 VA treatment records showing that the Veteran received treatment for renal failure and diabetic foot care. He was noted to have a past medical history of diabetes mellitus, chronic renal failure, and hypertension, and a past surgical history of a right great toe amputation in approximately 1996 and an arteriovenous fistula and arteriovenous graft on the right side in approximately 1998. * A November 1999 statement of attending physician from Dr. B.A. (the physician who certified the Veteran's death certificate), stating that she treated the Veteran from October 1999 to November 1999 for pseudomonas sepsis, open wound on left thigh after removal of infected autologous vein graft stent, end stage renal disease, neuropathy, hypertension, diabetes mellitus, and pericarditis. * A May 2005 letter from L.Q., who states he and the Veteran were both assigned to the same unit, CEEA-T, 29th Signal Group, APO 96346 USARPAC, and that the Veteran served in Da Nang, Vietnam. In support of his statement, L.Q. submitted a copy of his DD-214 (showing that he had 9 months and 20 days of foreign service, and was awarded a Vietnam Service Medal and a Vietnam Campaign Medal); an (illegible) copy of a DA Form 2139; and a March 1969 document from OUSARMA, American Embassy, certifying that he. "was on active duty in a Southeast Asia combat zone, was credited with hostile fire pay for inclusive months [March 1969] and [was] entitled to combat zone exclusion of total taxable income." * A copy of a May 2009 letter from the RO to the appellant advising that they had been unable to obtain medical evidence from the following providers: Memorial Hermann Hospital, Dr. H., Dr. G.S., and St. Luke Hospital. * A September 2009 report of contact between the RO and the appellant in which the latter advised that medical records from St. Luke Episcopal Medical Center (including those from Dr. B.A.) were unavailable because they had been destroyed in a flood from Tropical Storm Allison in 2001. Reopening of the Claim The Board finds that the evidence received since the November 2000 rating decision is new and material because it was not before agency decision-makers in November 2000, and directly addresses the unestablished fact necessary to substantiate the appellant's claim of service connection for cause of the Veteran's death. Specifically, the claim was denied in November 2000 for lack of a nexus between any of the Veteran's death-causing disabilities and his service. The appellant's theory of entitlement is that the Veteran served in Vietnam and, thus, his diabetes mellitus (an underlying cause of death listed on his death certificate) should be presumptively service-connected under 38 U.S.C.A. § 1116 (as due to herbicide exposure). While the record does not expressly show that the Veteran served in Vietnam, the appellant has (since the November 2000 rating decision) submitted a lay statement from L.Q. who states he served with the Veteran in Vietnam. When taken at face value (as is required when determining solely whether to reopen a previously denied claim) this additional evidence is competent and credible evidence that relates to the matter of whether the Veteran served in Vietnam (and may be presumed to have been exposed to herbicides), and raises a reasonable possibility of substantiating the appellant's claim. Thus, the additional evidence received is new and material and is sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death. ORDER The appeal to reopen a claim of service connection for the cause of the Veteran's death is granted. REMAND As was noted, the appellant claims that the Veteran's diabetes mellitus, which is listed on his death certificate as a cause of his death, was due to his exposure to herbicides during service. The Veteran's service personnel records do not show that he served in Vietnam; they show he served in Thailand from August 1968 to June 1969. As the Department of Defense has identified American bases in Thailand where herbicides were sprayed around the perimeter, this matter was remanded in March 2009 for additional development in this regard. On remand, the RO was unable to establish that the Veteran served on any of the bases in Thailand where herbicides were sprayed around the perimeter. In May 2009, the appellant submitted additional evidence in the form of a May 2005 lay statement from L.Q., who stated that he served with the Veteran in Vietnam. To show that he himself served in Vietnam, L.Q. submitted a copy of his DD- 214 (showing that he had 9 months and 20 days of foreign service, and was awarded a Vietnam Service Medal and Vietnam Campaign Medal); an (illegible) copy of his DA Form 2139; and a March 1969 document from OUSARMA, American Embassy, certifying that he "was on active duty in a Southeast Asia combat zone, was credited with hostile fire pay for inclusive months [March 1969] and [was] entitled to combat zone exclusion of total taxable income." Even though the documents that L.Q. submitted do not conclusively establish that he served in Vietnam, the fact that he was certified as having been on active duty in a Southeast Asia combat zone in the Army and was entitled to (non-taxable) hostile fire pay suggests he may have served in Vietnam. [Thailand is not an area generally regarded as a combat zone.] The record doe not show that, apart from a review of the documents, any additional development was done to determine whether L.Q. served in Vietnam (and that the Veteran served with him) as claimed. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for: (a) exhaustive development (to include securing a copy of L.Q.'s complete 201 file, and seeking from an appropriate official (of the Department of the Army) an explanation of the circumstances under which a serviceman would have been entitled to combat pay during the Vietnam Era (i.e., would an award of combat pay signify service in Vietnam?)) to determine whether L.Q. (who submitted a statement in support of the appellant's claim) served in Vietnam; and (b) If it is established that L.Q. served if Vietnam, exhaustive development to ascertain whether L.Q. and the Veteran were assigned to the same unit during the period of time L.Q. served in Vietnam. If exhaustive development proves fruitless, or the information obtained is inconclusive, the scope of the development should be explained for the record in detail. 2. The RO should arrange for any further development suggested by the results of that sought above, then the RO should re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs