Citation Nr: 1237693 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 09-32 919 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. 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. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to June 1980; he died in March 2000. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision, by the Manchester, New Hampshire RO. The appellant appeared and offered testimony at a hearing before a Decision Review Officer (DRO) at the RO in February 2009. A transcript of that hearing is of record. On August 3, 2010, the appellant testified at a hearing before the undersigned Veterans Law Judge sitting at the RO; a transcript of that hearing is of record. At the hearing, the appellant submitted additional evidence along with a waiver of RO consideration of those records, pursuant to 38 C.F.R. § 20.1304 (2012). In September 2010, the Board remanded the case to the RO for further development. The appellant thereafter specifically withdrew from appeal her claim that service connection for the cause of the Veteran's death should be awarded on account of radiation exposure during service. The appellant was then provided a supplemental statement of the case (SSOC) in July 2011, in which the agency of original jurisdiction (AOJ) again denied the appellant's claim. Although the RO determined that new and material evidence had been received sufficient to warrant reopening the appellant's claim of entitlement to service connection for the cause of the Veteran's death, the Board must determine whether new and material evidence has been submitted regardless of the RO's actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issue has been characterized as noted on the title page. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). (The decision below addresses the claim to reopen. A remand, which follows the decision, addresses the underlying claim of service connection.) FINDINGS OF FACT 1. In a December 2000 rating decision, the RO denied service connection for the cause of the veteran's death. The appellant was notified of that decision in January 2001, but she did not initiate an appeal. 2. The evidence added to the record since the final decision in December 2000 is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. A December 2000 rating decision that denied entitlement to service connection for cause of the Veteran's death is final. 38 U.S.C.A. § 7105(c) (West Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Evidence received since the December 2000 rating decision is new and material; 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, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a claimant fails to timely appeal an RO decision denying his or her claim for benefits, that decision becomes final and can no longer be challenged except on the basis of clear and unmistakable error. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.). However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Under pertinent regulations, 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The appellant initially filed a claim for service connection for the Veteran's death in March 2000. The only evidence considered at that time was the Veteran's death certificate, which showed that the immediate cause of death was hypercapnic respiratory failure due to, or as a consequence of pulmonary metastases from esophageal cancer, with coronary artery disease listed as a significant condition. By a rating action in May 2000, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. It was determined that the available scientific and medical evidence did not support the conclusion that the cause of death was associated with herbicide exposure. The RO related that there was no basis in the available evidence of record to establish service connection for esophageal cancer as the condition did not happen in military service, nor was it aggravated or caused by service. Therefore, it was determined that the appellant had not submitted a well-grounded claim for presumptive service connection. It was determined that the evidence failed to establish any relationship between the Veteran's military service and the cause of his death. By letter dated in June 2000, the Appellant was informed of the denial of her claim and of her procedural and appellate rights. The appellant did not appeal that decision and it became final. By letter dated in June 2000, the appellant requested that the claim for the cause of the Veteran's death be reopened. Submitted in support of the claim was a copy of the Veterans' DD Form 214, which reflects that was awarded the Bronze Star Medal, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with 60 device, and the Vietnam Cross of Gallantry with Palm. Also submitted was a copy of the Certificate of Death. The pertinent evidence of record also consisted of the Veteran's service treatment records (STRs), which were negative for any findings of carcinoma. Also considered were private medical records from January 1997 to March 2000. These records show that the Veteran was treated for type 2 diabetes mellitus, coronary artery disease, esophageal cancer, and hypertension with dyslipidemia. The Veteran was treated for reflux esophagitis in March 1997; he subsequently was diagnosed with adenocarcinoma of the distal esophagus in April 1997. In August 1997, he underwent esophagogastrectomy. He subsequently underwent chemotherapy. In March 1999, the Veteran was seen with a non-productive cough and a CT scan of the chest showed both left and right lung abnormalities consistent with metastatic disease to the lung. He continued to receive chemotherapy treatment. He subsequently succumbed to the metastatic disease on March 11, 2000. As previously noted, the Veteran died in March 2000; and, according to the death certificate, the Veteran's immediate cause of death was hypercapnic respiratory and pulmonary metastases from esophageal cancer, with coronary artery disease listed as a significant condition. At the time of his death, the Veteran was not service connected for any disability. Also submitted at the time of the previous denial were lay statements from individuals who served with the Veteran, attesting to the fact that the Veteran was assigned to duty in several locations in Vietnam. In one buddy statement, dated in July 2000, it was also reported that the Veteran was assigned to locations in Southeast Asia. By a rating action in December 2000, the RO denied the appellant's claim for service connection for cause of the Veteran's death. The RO explained that while the evidence showed that the Veteran served in Vietnam and was entitled to a presumption of exposure to herbicides, the medical evidence showed that he died of esophageal cancer, a condition which was not considered to be associated with herbicide exposure. The RO also noted that the medical evidence showed that the Veteran had pulmonary metastases from the esophageal cancer. It was determined that, although pulmonary cancer is a presumed condition under the Agent Orange Act, a VA General Counsel Opinion states that the presumed condition must not be a metastasis of a condition not associated with herbicide exposure. Therefore, the RO concluded that the available scientific and medical evidence did not support the conclusion that the cause of death was associated with herbicide exposure; as such, there was no basis to establish service connection for the cause of death from pulmonary metastases from esophageal cancer. Thus, service connection for the cause of the Veteran's death was denied. By letter dated in January 2001, the Appellant was informed of the denial of her claim and of her procedural and appellate rights. The appellant did not appeal that decision and it became final. Evidence submitted since the last final denial by the RO in December 2000 includes lay statements, appellant's testimony, private medical statements, as well as VA medical opinions. The records submitted are new in that they were not previously of record. While some of this evidence is cumulative, duplicative, or immaterial, there is also evidence submitted that is material, and sufficient to reopen the appellant's claim. That is, there is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Specifically, the evidence added to the record since the December 2000 rating decision includes a June 2007 private medical opinion from Dr. Kenneth M. Dolkart, who noted that the Veteran had a well-documented history of significant exposure to defoliants, including dioxin-containing agents such as Agent Orange. He also noted that the Veteran had documentation of significant exposure to these agents while in Vietnam and Thailand. Dr. Dolkart stated that the Veteran ultimately died of cancer of the esophagus, which he felt to be causally related to his dioxin exposure. Specifically, the Board notes that the June 2007 private medical opinion is new in that it was not previously of record at the time of the December 2000 rating decision. The medical opinion is not cumulative or redundant of evidence already of record because the medical opinion discusses the etiology of the Veteran's death. Because the newly submitted evidence provides further details about the Veteran's cause of death and its relationship to the Veteran's service and specifically to exposure to herbicides, it is material because it bears directly and substantially upon the specific matter under consideration. Additionally, this evidence, by itself or in connection with evidence previously assembled, raises a reasonable possibility of substantiating the claim of service connection for cause of the Veteran's death. Dr. Dolkart's nexus opinion constitutes new and material evidence, as it addresses the core issue of the claim and, at a minimum, triggers the necessity for another medical nexus review and opinion. 38 C.F.R. § 3.156(a); see generally Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Given the foregoing, the Board finds that the newly submitted evidence described above, to be both new and material. Having submitted new and material evidence, the claim on appeal is reopened. 38 U.S.C.A. § 5108 (West Supp. 2011); 38 C.F.R. § 3.156 (2012). ORDER New and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death; to this limited extent, the appeal of this issue is granted. REMAND In light of the Board's conclusion that the appellant's claim for service connection for the cause of the Veteran's death is reopened, the claim must be considered on a de novo basis. The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the appellant's claim. The appellant has advanced two theories of entitlement. The first is that the Veteran's herbicide exposure while serving in the Republic of Vietnam during the Vietnam War caused him to develop esophageal cancer. She now contends, in part, that the Veteran's certificate of death indicates that coronary artery disease contributed to his death. The appellant's service representative noted that coronary artery disease has been identified as a presumptive condition related to Agent Orange exposure. He has argued that, as the Veteran served in Vietnam, it is presumed that he was exposed to Agent Orange. It is argued that the VA failed to consider the relationship between the coronary artery disease and the Veteran's service in Vietnam. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability that was incurred in or aggravated by active service, or that was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). As noted above, in a June 2007 medical statement, Dr. Kenneth M. Dolkart, noted that the Veteran had a well-documented history of significant exposure to defoliants, including dioxin-containing agents such as Agent Orange; he also noted that the Veteran had documentation of significant exposure to these agents while in Vietnam and Thailand. Dr. Dolkart stated that the Veteran ultimately died of cancer of the esophagus, which he felt to be casually related to his dioxin exposure. However, in July 2009, a VA examiner opined that adenocarcinoma of the esophagus was not a result of the Veteran's service in Southeast Asia. As noted above, the certificate of death listed the immediate cause of death as hypercapnic respiratory and pulmonary metastases from esophageal cancer, with coronary artery disease listed as a significant condition. According to 38 C.F.R. § 3.307(a) (6) (iii), 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. During the pendency of the appellant's claim and appeal, VA amended 38 C.F.R. § 3.309(e) to include ischemic heart disease. 75 Fed. Reg. 53202 (August 31, 2010). The pertinent part of that amendment added the following to § 3.309(e): "Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)." 75 Fed. Reg. 53202, 53216 (August 31, 2010). This amended rule applies to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. 75 Fed. Reg. 53202 (August 31, 2010). Id. The appellant's claim was pending before VA on that date. The appellant's original contention was, and remains, that the Veteran was exposed to herbicides during service and that the exposure led to physical disabilities, which contributed to his death. This argument was duplicative of her previously denied claim. The appellant's representative argues that the coronary artery disease should be a basis for a grant of service connection for the cause of the Veteran's death, relying on the new presumption. In this regard, the Board observes that the VA medical opinions addressed only the etiology of the Veteran's esophageal adenocarcinoma. However, the examiner did not address whether the Veteran's coronary artery disease was such that it contributed to the Veteran's demise in more than a casual way. An opinion regarding coronary artery disease is needed. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be made available to a VA physician with expertise necessary to determine the nature and etiology of the diseases that contributed to the cause of the Veteran's death. The claims folder must be made available to and be reviewed by the doctor. In this regard, the Board notes that the Veteran's death certificate lists hypercapnic respiratory failure and pulmonary metastases from esophageal cancer as the causes of death. Other significant conditions included coronary artery disease. The examiner is to specifically opine whether it is at least as likely as not (i.e., a 50/50 chance) that the esophageal cancer was causally related to his presumed exposure to herbicides during his Vietnam Service, or to some other in-service event. The reviewing physician must specifically comment on the reports and opinions of Dr. Dolkart, and indicate specific agreement or disagreement with the opinion and the reasons why. The opinion must be fully explained and the rationale provided. The reviewing physician is further advised that, the United States Court of Appeals for Veterans Claims has determined that a medical opinion that finds no nexus between a disease and herbicide exposure simply because it is not on the Secretary's list of associated diseases is inadequate on its face. Such an opinion would fail to address the issue of direct service connection. The reviewer should also be asked to state the medical probabilities that coronary artery disease or diabetes experienced by the Veteran contributed to his death in more than a casual way. In other words, did either disease or the combination of these two diseases contribute substantially or materially to the Veteran's death-aiding or lending assistance to the production of death. If the reviewer determines that he/she cannot provide an opinion without resorting to speculation, the physician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional evidentiary development could be undertaken that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the reviewer be undertaken so that a definite opinion can be obtained.) 2. Thereafter, the AOJ should review the claims file and ensure that all necessary notice and development has been undertaken. If any development is incomplete, undertake appropriate corrective action. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, the AOJ should review the appellant's claim de novo in light of the additional evidence obtained. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with an SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response by the appellant and her representative before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs