Citation Nr: 1519477 Decision Date: 05/06/15 Archive Date: 05/19/15 DOCKET NO. 13-06 527 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Attorney Penelope E. Gronbeck WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1967, including service in the Republic of Vietnam. He died in April 1990, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Newark, New Jersey RO. In October 2014, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the claims file. At the hearing the appellant requested, and was granted, a 60 day abeyance period for the submission of additional evidence; such evidence was received with a waiver of initial AOJ consideration. The issue of service connection for the cause of the Veteran's death (on de novo review) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on her part is required. FINDINGS OF FACT 1. An unappealed August 1999 Board decision denied the appellant's claim of service connection for the cause of the Veteran's death, based on findings that the Veteran's pancreatic cancer was not due to disease or injury incurred or aggravated by service and may not be presumed to be of service onset, and a service-connected disability was not otherwise shown to have caused or contributed substantially or materially in producing the Veteran's death. 2. An unappealed October 2009 Board decision denied the appellant's request to reopen the claim of service connection for the cause of the Veteran's death, based on findings that new and material evidence had not been submitted. 3. Evidence received since the October 2009 Board decision includes two medical opinions relating the Veteran's cause of death to his service, in support of the appellant's claim; 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, 7104 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as the benefit claimed (reopening the claim of service connection for the cause of the Veteran's death) is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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. An August 1999 Board decision denied the appellant's claim for service connection for the cause of the Veteran's death, based on findings that the Veteran's pancreatic cancer was not due to disease or injury incurred or aggravated by service and may not be presumed to be of service onset, and a service-connected disability was not otherwise shown to have caused or contributed substantially or materially in producing the Veteran's death. The appellant did not appeal the decision. An October 2009 Board decision denied the appellant's request to reopen the claim of service connection for the cause of the Veteran's death, based on findings that new and material evidence had not been submitted. The appellant did not appeal the decision. Generally, when the Board denies a claim, and the appellant does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7104. However, under 38 U.S.C.A. § 5108, 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 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 service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death", thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The issue in this case requires medical expertise; in such cases, where medical expertise is necessary to establish a diagnosis or to address questions of medical causation, lay statements do not constitute competent evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, at 1377. The evidence of record at the time of the October 2009 Board decision included the August 1999 Board decision, private treatment records dated between February 1990 and April 1990, statements dated in June 1993 and December 1994 from Dr. Orsini, a May 1998 VA opinion, and abstracts from three periodicals, as well as the appellant's testimony in a July 1997 hearing. As reported in the Board's August 1999 decision, the Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnosis regarding the pancreas or pancreatic cancer. Treatment records from the Clara Maass Medical Center reflect that the Veteran was admitted in February 1990 due to complaints of abdominal pain with a history of carcinoma of the pancreas. He reported a history of smoking two packs of cigarettes per day and working as a construction worker. Attending physician Dr. Orsini indicated in a February 1990 final summary that the Veteran was originally thought to have had gall bladder disease but a large mass at the head of the pancreas was discovered via biopsy. Dr. Orsini opined that recent laboratory testing and X-rays were consistent with the diagnosis. A March 1990 abdominal CT scan showed an abnormal pancreas and was suspicious for pancreatic carcinoma and metastatic disease. Radiation therapy was started. The final diagnosis was carcinoma of the pancreas, end-stage disease with extensive metastasis to the liver. In April 1990, the Veteran was readmitted to the hospital due to intractable pain and basic failure to thrive. His family members requested that all therapy be stopped, due to his prognosis being extremely grave. He succumbed to the disease four days after he was admitted; the final diagnosis, in pertinent part, was carcinoma of the pancreas. In a June 1993 statement, Dr. Orsini opined that the nature of pancreatic carcinoma in a young person is difficult to explain. He opined that the Veteran's occupational history was insignificant. Noting that the Veteran had exposure to Agent Orange during his military service, Dr. Orsini opined that this exposure "certainly could have caused cellular damage and eventually to the development of a carcinoma in a young individual." Dr. Orsini stated that reports in the literature seemed to indicate that a number of cases have been caused by Agent Orange; he opined that pancreatic carcinoma certainly could be included in that list. In a November 1994 statement, Dr. Orsini opined that there is very strong evidence that Agent Orange is responsible for a number of cancers, to include gastrointestinal cancers, with pancreatic carcinoma being one of the gastrointestinal malignancies that we see. Acknowledging that other associated factors and carcinogens may have acted as promoters in the eventual development of a cancer, Dr. Orsini opined that the Veteran's exposure to herbicides in service was a major contributing factor to his illness. Dr. Orsini opined that Agent Orange is without question a cause of cancer, and that the Veteran's malignancy is among the list of cancers that have been seen with exposure to Agent Orange. As reported in the Board's August 1999 decision, the RO sought a VA medical opinion in May 1998. Based on a review of the record, a VA physician who specialized in the liver, gall bladder, and pancreas opined that the Veteran's fatal pancreatic cancer was not related to his Agent Orange exposure in Vietnam. The reviewing physician supplemented this opinion in October 1998 by stating that he had not seen any medical literature relating pancreatic cancer to Agent Orange. In an August 2002 statement, Dr. Orsini indicated that he treated the Veteran for pancreatic carcinoma. Dr. Orsini stated that during that treatment, the Veteran was on an insulin program for pancreatic carcinoma for management of his abnormal glucose state. In an April 2008 statement, Dr. Orsini noted that at the time he treated the Veteran for pancreatic carcinoma, he also treated the Veteran for an associated diabetic condition which was worsened by the pancreatic cancer. Dr. Orsini noted that the Veteran was on insulin as a dependent prescription. The appellant also submitted periodical abstracts and various medical articles regarding exposure to Agent Orange in Vietnam. Evidence received since the October 2009 Board decision consists essentially of two medical opinions in support of the appellant's claim, indicating that the Veteran's pancreatic cancer was related to his Agent Orange exposure in service, as well as the appellant's hearing testimony. In an April 2011 statement, neuro-radiologist Dr. Bash stated that he had reviewed the Veteran's medical records and received an in-person history/clinical review with the appellant. He noted that the Veteran died of pancreatic cancer in 1990 according to the death certificate. He referred to Dr. Orsini's 1994 opinion and the 1998 VA physician report, as well as Dr. Orsini's subsequent statements from 2002 and 2008. Dr. Bash opined that, considering every possible sound medical etiology/principle, to at least the 50 percent level of probability, the Veteran's demise due to pancreatic cancer was due to his experiences and exposure to Agent Orange in Vietnam. Dr. Bash noted that the Veteran entered service without any doctor-diagnosed illnesses and was exposed to Agent Orange in Vietnam. Dr. Bash stated that the most current Vietnam and Agent Orange book lists several articles supportive of an association between Agent Orange and pancreatic cancer. Dr. Bash opined that the records do not support another more plausible etiology for the Veteran's pancreatic cancer as he had a negative family history and his post-service exposure to toxins was limited. At the October 2014 hearing, the appellant testified that the Veteran was diagnosed with cancer in January 1990. She testified that there was no history of cancer in the Veteran's family. She testified that the Veteran smoked less than a pack of cigarettes per day. In a February 2015 statement, internist and oncologist Dr. Dorsk noted the Veteran's history of pancreatic cancer and his exposure to Agent Orange during his service in Vietnam. Based on a review of the medical records, prior opinion letters, and pertinent research, Dr. Dorsk opined that it is at least as likely as not that the Veteran's pancreatic cancer was causally related to his exposure to Agent Orange during his service in Vietnam. Dr. Dorsk noted that Agent Orange, which contains dioxin and other similar compounds, has been shown to be a causative factor in many kinds of cancer. He cited several studies regarding Agent Orange and cancer, as well as Drs. Orsini's and Bash's letters, in support of his opinions. Dr. Dorsk opined regarding pancreatic cancer that, at the very least, there are simply too few studies to prove definitively that this type of chemical exposure causes pancreatic cancer and, given the fact that the EPA banned the chemical in the U.S. years ago, it is unlikely that the question will ever be answered definitively. However, Dr. Dorsk opined that the studies do suggest a link; he opined that the evidence shows it is at least as likely as not that the Agent Orange chemical exposure that the Veteran suffered in service caused the cancer as well as diabetes. Dr. Dorsk noted that the Veteran also suffered from diabetes, which often presents with symptoms leading to the diagnosis of pancreatic cancer. Because service connection for the cause of the Veteran's death was previously denied based on findings that the Veteran's pancreatic cancer was not due to disease or injury related to service and may not be presumed to be of service onset, for evidence to be new and material in this matter, it would have to relate to such findings. 38 U.S.C.A. § 1310. The medical opinions from Drs. Bash and Dorsk relating the Veteran's pancreatic cancer to exposure to Agent Orange in service are new and they are material evidence. Consequently, the appellant has offered evidence which 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 the claim. It is now well-established that the standard for reopening is a "low threshold" requirement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim of service connection for the cause of the Veteran's death may be reopened. ORDER The appeal to reopen a claim of service connection for the cause of the Veteran's death is granted. REMAND The Board finds that further development of the record is required to comply with VA's duty to assist the appellant in the development of the facts pertinent to her reopened claim. See 38 C.F.R. § 3.159. The Board notes that, as reported in the Board's August 1999 decision, the RO sought a VA medical opinion on this matter in May 1998. However, the Veteran's original VA claims file has been lost; the current file is a rebuilt one. The incomplete information cited above is derived from records assembled in an attempt to reconstruct the claims file. Unfortunately, the May 1998 VA medical opinion was the only VA opinion obtained to date on the matter of service connection for the cause of the Veteran's death, and it is unavailable for review. In light of the new opinions submitted from Drs. Bash and Dorsk, the matter must be remanded to obtain a VA medical opinion addressing whether the Veteran's presumed exposure to Agent Orange in service contributed to cause his death due to pancreatic cancer. Accordingly, the case is REMANDED for the following action: 1. The AOJ should forward the Veteran's claims file to an appropriate physician, preferably an oncologist and/or a specialist with respect to diseases of the pancreas, for review and an advisory medical opinion that responds to the following: Based on the factual evidence of record, is it at least as likely as not (a 50 percent or better probability) that the Veteran developed pancreatic cancer as a result of presumed exposure to Agent Orange in service? In doing so, * Please discuss your expertise in the area of oncology and/or diseases of the pancreas; and * Please explain the bases for your opinions, including any medical studies, principles, or literature upon which you rely; and * Please indicate if the record supports a more plausible etiology for his pancreatic cancer; and * Please consider and discuss as necessary the opinions of record by Drs. Orsini, Bash (April 2011), and Dorsk (February 2015). The consulting physician must explain the rationale for all opinions. 2. The AOJ should then re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant 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 of Veterans' Appeals 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 2014). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs