Citation Nr: 1122201 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-19 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Gregory D. Keenum, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. He died in May 2006. The appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had been received to reopen the appellant's claim for service connection for the cause of the Veteran's death, but denied the claim on the merits. Service connection for the cause of the Veteran's death was initially denied by the RO in August 2006, and the appellant, who was notified of this determination, did not file a timely appeal. The Board notes the RO concluded in August 2008 that new and material evidence had been received, and reopened the claim of service connection for the cause of the Veteran's death. Nevertheless, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). FINDINGS OF FACT 1. By rating action dated August 2006, the RO denied the appellant's claim for service connection for the cause of the Veteran's death. It was stated that cancer of the stomach or liver was not present during service or within one year of the Veteran's separation from service. The appellant was notified of this decision and of her right to appeal by a letter dated later that month, but a timely appeal was not received. 2. Some of the evidence added to the record since the August 2006 determination relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. 3. At the time of the Veteran's death, service connection was in effect for status post therapy for adenocarcinoma of the prostate with residual urinary problems, evaluated as 30 percent disabling; and for erectile dysfunction, evaluated as noncompensable. 4. The Veteran served in Vietnam. 5. The Veteran died in May 2006 of cardio pulmonary failure due to stomach and liver cancer. 6. A gastrointestinal stromal tumor more likely than not contributed to his death. The death certificate lists stomach cancer as contributing to death. There is evidence that this is a soft tissue sarcoma, and it is not on the list of those excluded from consideration as due to herbicide exposure. CONCLUSIONS OF LAW 1. The August 2006 rating decision, which denied the claim for service connection for the cause of the Veteran's death, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2010). 2. The evidence received since the August 2006 rating decision is new and material, and the claim for service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 3. With resolution of reasonable doubt in the appellant's favor, a service-connected disability contributed substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). As explained below, the Board has found the evidence currently of record to be sufficient to establish the appellant's entitlement to the benefit sought on appeal. Therefore, no further notice or development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002) or 38 C.F.R. § 3.159 (2010). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. New and material Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). The VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. Service connection for the cause of the Veteran's death was denied by the RO in an August 2006 rating decision. The rating action noted the service treatment records were negative for treatment or a diagnosis of cancer of the stomach or liver, and that neither condition was present in service or within one year thereafter. The appellant was notified of this decision and of her right to appeal by a letter dated later that month, but she did not pursue an appeal. The evidence of record at the time of the August 2006 determination included the service treatment records, private and VA medical records, the reports of VA examinations and the Veteran's death certificate. VA outpatient treatment records disclose the Veteran was seen in April 2005. It was stated he had an endoscopic biopsy of a gastric tumor attempted earlier that month, and a biopsy report was negative. The assessment was gastric tumor with hepatic lesion, probably gastric malignancy, either adenocarcinoma or gastrointestinal stromal tumor. The Veteran was hospitalized by the VA in July 2005. It was indicated a CT scan in March revealed new liver lesions suspicious for metastases. He underwent a distal gastrectomy. A liver biopsy was negative for malignancy, but showed gastrointestinal stromal tissue. It was reported the tumor measured 2.5 cm. It was stated the Veteran had a completely resected gastrointestinal stromal tumor. When the Veteran was seen in a VA outpatient treatment clinic in December 2005, it was indicated the gastrointestinal stromal tumor was completely resected and non-metastatic. It was noted in February 2006 the Veteran was status post biopsy of liver lesions. The liver biopsy showed squamous cell carcinoma. The death certificate reveals the Veteran was 58 years old when he died in May 2006 of cardio pulmonary failure, due to or as a consequence of debility and cancer of the stomach and liver. The additional evidence includes a VA medical opinion and the appellant's testimony at a hearing before the undersigned. During the hearing, it was argued by and on behalf of the appellant that the Veteran had a gastrointestinal stromal tumor, and that this is a soft tissue sarcoma. Since the Veteran served in Vietnam, service connection on a presumptive basis is warranted. It was also alleged the Veteran died of the gastrointestinal stromal tumor. Thus, the evidence relates to a previously unestablished fact, that is, that the Veteran's death is related to service. Accordingly, the Board will resolve all doubt in the appellant's favor and find that the evidence is new and material sufficient to reopen the claim for service connection for the cause of the Veteran's death. In light of the fact the RO determined new and material evidence had been received and considered the claim on the merits, no prejudice to the appellant will result from the Board's adjudication of this matter. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service connection-cause of the Veteran's death Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For the service-connected disability to 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, but rather, it must be shown that there was a causal relationship. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. VA regulations provide that a veteran who had active military, naval, or air service 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. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are deemed associated with herbicide exposure, under current VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, 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). The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, 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 (West 2002); 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309. The Veteran's claims folder was referred to a physician's assistant of the VA in April 2010 for an opinion regarding the Veteran's medical conditions. She reviewed the claims folder. She concluded the evidence does not support a diagnosis of metastatic prostate cancer. She asserted there was no evidence of bony metastases secondary to prostate cancer. She observed that if the Veteran's prostate cancer had metastasized to his liver, the biopsy would have shown adenocarcinoma. With respect to the gastrointestinal stromal tumor, the physician's assistant noted the primary sites of metastasis for most patients with recurrent gastrointestinal stromal tumor are the liver and the peritoneum, or sometimes both. It was very rare for this type of tumor to metastasize to the lungs. She further observed that had the gastrointestinal stromal tumor metastasized to the liver, the pathology of the liver lesion would be the same as the primary tumor. Thus, there is no evidence the Veteran died of metastatic disease from the gastrointestinal stromal tumor. She added that the appellant's claim that a gastrointestinal stromal tumor is a soft tissue tumor is moot since there is no evidence this was the cause of the Veteran's death. In continuing the denial of the claim, the RO, in the statement of the case issued in April 2010, cited the opinion of the physician's assistant. While the recent opinion indicated that the gastrointestinal stromal tumor did not cause death, under the law the discussion does not end there. Service connection for the cause of death may be granted where there is a disorder that contributes to the Veteran's death. In this case, the stomach cancer is listed on the death certificate as contributing to death. There is evidence on file, including in the opinion discussed above, that a gastrointestinal stromal tumor is a soft tissue sarcoma. Other documentation supports that conclusion. It is indicated that this is a newly classified tumor. There is some evidence that at least some of the tumor was removed surgically, but there is also evidence, including a February 2006 VA study that noted a recurrence of the stomach tumor. As noted above, soft tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) are associated with exposure to Agent Orange. See 38 C.F.R. § 3.309(e). While the regulation specifically excludes some sarcomas, a gastrointestinal stroma tumor is not one of the excluded sarcomas. Moreover, there is a Note 1 following the regulation that notes "The term 'soft-tissue sarcoma' includes the following:" (emphasis added). Thereafter, there is a listing of specifically included sarcomas. A gastrointestinal stromal tumor is not on this list either, however as the list says "includes" as opposed to language like "includes and is limited to" or other restrictive phrase, it would not seem to be an exclusive list. Thus, the evidence seems to suggest that the gastrointestinal stromal tumor is a soft tissue sarcoma that appears to have contributed to death. As such, with resolution of reasonable doubt in the appellant's favor, service connection for the cause of death is granted. ORDER New and material evidence having been received, the claim for service connection for the cause of the Veteran's death is reopened. Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs