Citation Nr: 1306384 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-02 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from July 1947 to August 1975. The Veteran died in 1994. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. In a March 2009 rating decision, the RO affirmed the prior denials of service connection for the cause of the Veteran's death; although notified of the denial in a March 2009 letter, the appellant did not initiate an appeal. 2. Evidence associated with the claims file since the March 2009 denial is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. 3. The lung cancer which caused the Veteran's death cannot be reasonably disassociated from his exposure to Agent Orange during his military service. CONCLUSIONS OF LAW 1. The March 2009 rating decision in which the RO denied service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for a grant of service connection for the cause of the Veteran's death, have been met. 38 U.S.C.A. §§ 1110, 1116; 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). This is so because the Board is taking action favorable to the appellant by granting the issue at hand. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Whether New And Material Evidence Has Been Received To Reopen The Claim Of Entitlement To Service Connection For The Cause Of The Veteran's Death In December 1994, the appellant submitted a claim of entitlement to service connection for the cause of the Veteran's death. In March 1995, the RO denied the claim and the appellant was informed the decision in April 1995. She did not appeal the denial of service connection for the cause of the Veteran's death. See 38 C.F.R. § 20.200 (2012). The RO' March 1995 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In October 1996, the appellant submitted a claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death. This claim was denied in a January 1997 rating decision. The appellant was informed of the decision in April 1997, but did not appeal. Id. In February 2005, a claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death was submitted and in a November 2006 rating decision, the claim was again denied. The appellant was notified of the decision, but did not appeal. Id. A claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death was denied by a rating decision in March 2009. The appellant was informed the same month, but did not appeal. The March 2009 rating decision is the last final denial of the issue of entitlement to service connection for the cause of the Veteran's death. Id. In June 2010, the appellant resubmitted a claim to reopen the issue of entitlement to service connection for the cause of the Veteran's death. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence of record at the time of the March 2009 final rating decision consisted of service treatment records, statements from the appellant, VA medical records, and a death certificate. The death certificate reveals that the immediate cause of death metastatic carcinoma to the bones and lungs, which was due to or a consequence of severe chronic obstructive pulmonary disease and cor pulmonale, due to or a consequence of pneumonia, due to or a consequence of bladder cancer. Upper gastrointestinal bleeding was listed as a significant condition contributing to the death, but not resulting in the underlying cause of death. The claim was denied based on a finding that there was no medical evidence which linked the cause of the Veteran's death to his active duty service. Pertinent evidence added to the claims file since the March 2009 final rating decision consists of the appellant's claim and the appellant's testimony at a hearing before the Board in December 2012. At that time, the appellant testified that she was married to the Veteran prior to his service in Vietnam and he was healthy. When he returned from Vietnam, he had chronic lung problems, eventually resulting in several hospitalizations. She also argued that her spouse's death was the result of his being subjected to a napalm explosion at very close range, which injured his throat and lungs. The Veteran's exposure to the close proximity napalm blast has been confirmed in his award for the Silver Star medal. The Board finds the appellant's testimony is new and material evidence. 38 C.F.R. § 3.156(a). The appellant's testimony is competent evidence that she observed continuous problems with the Veteran's lungs from the time of his military discharge until his death. This testimony as to the existence of continuity of lung problems from discharge to the present, as well as the new theory of etiology regarding the proven exposure to a close napalm explosion is new as it was not considered at the time of the last final decision and is material, as it relates to an unestablished fact. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, the claim of entitlement to service connection for the cause of the Veteran's death is reopened. Entitlement To Service Connection For The Cause Of The Veteran's Death The appellant is claiming that her husband died as a result of injuries linked to his active duty service. She has claimed, in part, that the cause of death was due to his exposure to herbicides while serving in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a veteran was exposed to a herbicide agent, to include Agent Orange, during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Lung cancer is included in the list of presumptive diseases for herbicide exposure. The evidence of record demonstrates that the Veteran served in Vietnam, and was awarded the Silver Star medal. The description of the Veteran's award for heroism indicates, in part, that he was in very close proximity to a napalm explosion. Service connection for eye problems was granted during the Veteran's lifetime for the residuals of this explosion. The Veteran's service in Vietnam for which he was decorated for heroism is well documented and his exposure to herbicides is therefore presumed. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability 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)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. A November 1994 VA hospitalization record reveals that the Veteran presented for hospitalization, with complaints of right chest pain and worsening cough. Due to complaints of hip and back pain, a computed tomography examination was conducted. This was interpreted as revealing multiple nodular lesions and the clinician found it clear that the Veteran had metastatic carcinoma. The clinician wrote that the primary site of the cancer "could have been from the bladder, we don't know. Essentially, the primary site is unknown." The Veteran passed away during this hospitalization. An autopsy was not performed. The hospitalization record included the annotation that the cause of death was "[c]arcinoma to bone and lung and terminal pneumonia, end stage [chronic obstructive pulmonary disease]." The cause of death listed on the death certificate indicates the immediate cause of the Veteran's death was metastatic cancer to the bones and lungs. The November 1994 report of the Veteran's final hospitalization includes in the body of the report the statement that the Veteran had metastatic cancer but the primary site for the cancer was unknown and would remain unknown. However, the cause of the Veteran's death which is reported in the final line of the November 1994 hospitalization record was listed as being due to carcinoma to the bone and lungs without reference to metastases. As no autopsy was conducted, further opinions as to the primary site of the cancer cannot be obtained. Thus the Board is presented with the situation where the death certificate documents the cause of the Veteran's death as being due, in part, to metastatic carcinoma to the lungs but the final hospitalization record indicates the cause of death was due, in part, to carcinoma of the lungs without specification as to whether the lung carcinoma was the primary site or a metastasis. Affording the appellant the benefit of the doubt, the Board finds that the lung cancer which caused the Veteran's death cannot be reasonably disassociated from his exposure to Agent Orange during his military service, and therefore, service connection for the cause of the Veteran's death is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for the cause of the Veteran's death has been reopened. Service connection for the cause of the Veteran's death is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs