Citation Nr: 1311705 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-46 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for cause of the Veteran's death, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Calvin Hansen, Esquire ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to September 1977. He died in January 2004. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. Service connection for cause of death was denied in a May 2006 rating decision that was not appealed. 2. Evidence received since the May 2006 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 3. The Veteran died in January 2004. 4. The Veteran's death certificate shows that the immediate cause of death was sepsis as due to or as a consequence of abdominal wall sarcoma. 5. The Veteran was not service-connected for any disability at the time of his death. 6. The evidence indicates that the Veteran's cause of death was not manifested during the Veteran's period of active service and it has not otherwise been shown to be related to military service to include exposure to ionizing radiation or a service-connected disability. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the May 2006 decision, the criteria for reopening the claim for service connection for cause of death are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria for Reopening a Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, 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, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis for Reopening the Claim The RO denied reopening the appellant's claim for service connection for cause of death in the November 2009 rating decision on appeal. Apparently, the October 2010 statement of the case (SOC) denied the claim on the merits. Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Review of the file shows the RO denied service connection for cause of death in May 2006 based on its determination that the evidence failed to show that his death was related to military service. The decision was not appealed. The evidence of record at the time of the May 2006 decision included service treatment records. The evidence received since the May 2006 decision includes, in pertinent part, a mass of private treatment records detailing the Veteran's treatment for abdominal wall sarcoma before his death. The medical evidence added to the record is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In addition, Dependency Indemnity and Compensation (DIC) benefits based on service connection for cause of death require additional VCAA notice requirements. Generally, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Id. After a review of the claims folder, the Board finds that January 2006 and September 2009 VCAA letters satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Hupp v. Nicholson, 21 Vet. App. 342 (2007). Although the appellant was not advised of the criteria for assignment of an effective date or disability rating in the event of award of the benefit sought, she has not been prejudiced by this notice defect as the decision herein denies the claim. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the appellant's claim. The claims file contains some of the Veteran's service treatment records, private treatment records, VA written dispensations relevant to radiation exposure, the appellant and Veteran's marriage certificate and the Veteran's death certificate. The Board notes that VA did not provide a medical opinion as to any nexus to service of the cause of the Veteran's death pursuant to 38 U.S.C.A. 5103A. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, that the claimant suffered an event, injury of disease in service, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d), 38 C.F.R. § 3.159(c) (4). However, the evidence of a link between a current disability and service must be competent. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In this case, the AOJ employed the special development procedures applicable to claims based on exposure to ionizing radiation (as set forth in 38 C.F.R. § 3.311). As discussed in more detail below, such development included the Under Secretary for Benefits requesting an opinion from the Under Secretary for Health. This opinion adequately addresses the issue of whether the Veteran's cause of death was etiologically related to ionizing radiation exposure during service. As the medical opinion was negative, a VA opinion was not obtained. Furthermore, the claims file contains the appellant's statements in support of her claim. The Board has carefully reviewed such statements and it concludes that the appellant has not identified further available evidence not already of record. Therefore, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Analysis of Cause of Death Claim When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5(a), 3.312 (2012). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) 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 death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A certificate of death confirms that the Veteran died in January 2004. The immediate cause of death was sepsis as due to or as a consequence of abdominal wall sarcoma. The Board notes that the Veteran was not service-connected for any disability at the time of his death. Thus, the Board will consider whether the evidence links the Veteran's active duty service to the cause of his death. The appellant contends that the Veteran's sarcoma was due to ionizing radiation exposure in service. Service connection for disorders claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(d) (2012). Second, service connection can be established under the general principles of service connection with the assistance of special procedural advantages if the condition at issue is a radiogenic disease. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.311 (2012). Finally, service connection can still be established under the general principles of service connection by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions or special development procedures. Id.; see Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Pertinent VA regulation defines a "radiation-exposed veteran" as a veteran who participated in a radiation-risk activity while serving on active duty or on active duty for training or inactive duty training. 38 C.F.R. § 3.309(d) (3). The Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) recorded from July 1972 to July 1997 showed an accumulated total lifetime dose of 0.175 roentgen equivalent in man (rem) during service. However, the Veteran's service does not include participation in a "radiation-risk activity" as defined by 38 C.F.R. § 3.309(d) (3). Therefore, service connection pursuant to the regulatory presumption of 38 C.F.R. § 3.309(d) is not warranted. Sarcoma can be considered a form of cancer as a "radiogenic disease," meaning a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b) (2). The Veteran's cause of death, sepsis is not identified as a radiogenic disease. When a veteran suffers from a radiogenic disease and was exposed to ionizing radiation in service, VA regulations provide that special procedures should be followed in the development and adjudication of the claim. 38 C.F.R. § 3.311. It is important to note that the special procedures laid out in section 3.311 do not create a presumption for service connection. Principles of service connection still apply which provide that service connection may be granted 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. Generally, this requires competent evidence showing that there is some causal relationship between a present disability, such as a radiogenic disease, and an event of service, such as exposure to ionizing radiation. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The claims file reflects that the Director of Compensation and Pension, in accordance with the procedures set forth in section 3.311, requested an ionizing radiation dose estimate and an advisory medical opinion from the Under Secretary for Health in September 2010. The September 2010 request reflects that the Under Secretary for Health was provided information regarding the Veteran's service, his cause of death and other contributing factors as listed on his death certificate, his family medical history, smoking history, post-service occupational history as a radiation safety officer, and medical history as it pertained to his cause of death. An opinion was prepared by the Director of Radiation and Physical Exposures in October 2010 that reflects review of the Veteran's DD Form 1141, indicating an accumulated total lifetime dose of 0.175 rem during his time in service (1971 to 1977). The October 2010 report reflects that the physician utilized the Health Physics Society's position that "in accordance with current knowledge of radiation health risks, [we] recommend against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources." The position furthered that "there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent." Thus, the opinion followed that since the Veteran's occupational radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it was unlikely that the sarcoma of the small bowel could be attributed to radiation exposure while in military service. The Board has conducted a de novo review of the claims file and similarly concludes that the evidence preponderates against finding a causal relationship between the Veteran's sarcoma and exposure to ionizing radiation. While we are sympathetic to the appellant's claim, the only evidence of record tending to support her claim consists of the appellant's lay statements. The appellant's lay assertions cannot be accepted as competent evidence regarding the issue of a nexus in light of the complex scientific and medical issues associated with determining the etiology of cancer and effects of ionizing radiation exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a lay person is competent to report information of which he or she has personal knowledge, i.e., information that he or she can gather through the senses). Despite concluding that the Veteran's sarcoma was not related to ionizing radiation exposure incurred during service, the Board has considered whether the Veteran's cancer was related to service on an alternative basis. However, there is no indication based on lay or medical evidence that the Veteran's sarcoma manifested during service. In this regard, the first medical evidence of a diagnosis of sarcoma was in 2003. As such, service connection may not be established on the basis of chronicity or continuity of symptomatology. Furthermore, the large lapse in time between military service and a diagnosis and/or treatment of the disorders weigh against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In conclusion, the Board finds that the evidence of record indicates that the cause of the Veteran's death and the other contributing conditions are unrelated to his service to include exposure to ionizing radiation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for the cause of the Veteran's death is not warranted. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for post cholecystectomy syndrome is granted; entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ MARK GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs