Citation Nr: 1520575 Decision Date: 05/13/15 Archive Date: 05/26/15 DOCKET NO. 13-28 628A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for cause of death and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran had active service from February 1951 to July 1971. He died on April [redacted], 1991. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the RO in Cleveland, Ohio. In May 2015, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for the Veteran's cause of death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An August 1991 rating decision denied entitlement to service connection for the Veteran's cause of death; the appellant neither appealed the decision, nor submitted new and material evidence within a year and it became final. 2. The evidence added to the record since the August 1991 rating decision is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 1991 rating decision denying service connection for cause of death is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 20.1100, 20.1104 (1991). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for cause of death. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the appellant has been provided all required notice, to include notice pertaining to the disability rating and effective date elements of her claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the appellant's claim to reopen. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2014). Whether New and Material Evidence has been Received to Reopen a Claim for Entitlement to Service Connection for Cause of Death In this case, the RO issued a decision in August 1991 which denied service connection for a cause of death claim on the basis that there was no evidence that the Veteran had any service connected disabilities, and no evidence that the Veteran's cause of death, pancreatic cancer, was caused by or related to his service. The appellant was notified of this decision, but did not appeal the denial and did not submit new and material evidence within a year of the decision. 38 C.F.R. § 3.156. The August 1991 rating decision is final. 38 U.S.C.A. § 7104, 38 C.F.R. § 20.1100. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996). See also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). The evidence of record at the time of the August 1991 rating decision included the Veteran's death certificate and the appellant's claim for service connection for cause of death. The evidence received since the last final denial dated in August 1991 includes numerous statements by the appellant, the Veteran's service treatment records and military personnel file received December 30, 2011, verifying that the Veteran served in Vietnam. Also submitted after the final denial were the Veteran's treatment records from Licking Memorial Hospital from October 1990 to January 1991 and from Grant Medical Center from January 1991 to April 1991. The new evidence also included hearing testimony from the appellant's March 2015 Board hearing with the undersigned VLJ. Also, the appellant submitted a private opinion in April 2015 suggesting a nexus between the Veteran's pancreatic cancer and his service. This evidence is both new and material and it raises a reasonable possibility of substantiating the claim. Accordingly, the claim for service connection for cause of death is reopened. ORDER New and material evidence has been presented, and the claim of entitlement to service connection for cause of death is reopened. To that extent only, the appeal is allowed. REMAND The appellant's claim of service connection for cause of death is reopened above, but additional development is still required in order to allow for a full and fair adjudication of the claim. Specifically, a VA opinion is indicated. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The Veteran's death certificate in April 1991 lists the cause of his death as pancreatic cancer. However, pancreatic cancer is not one of the diseases that the National Academy of Science has found to be epidemiologically linked to herbicide exposure and pancreatic cancer is therefore not subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Under 38 C.F.R. § 3.159(c)(4), a VA opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the April 2015 letter by Dr. C. Bash suggests a relationship between the Veteran's pancreatic cancer and his military service, but is insufficient to support service connection because there is not an adequate rationale as to why the Veteran's pancreatic cancer was caused by his herbicide exposure. However, it is sufficient to meet the low-threshold standard of McLendon and an opinion is warranted. In his April 2015 opinion Dr. Bash stated that after reviewing the Veteran's medical history and records, and after conducting an interview with the Veteran's family, he came to the conclusion that the Veteran contracted pancreatic cancer as a result of his exposure to Agent Orange. He reported that because Agent Orange is "a well known carcinogen," and because the Veteran's family had no history of pancreatic cancer, it thereby followed that the Veteran's cancer was caused by his Agent Orange exposure. Dr. Bash cited in his conclusions the most recent Institute of Medicine (IOM) publications documents enumerating statistics of the relative risk of developing hepatobiliary cancer after exposure to herbicides. He acknowledged that the IOM reported a limited association between pancreatic cancer and Agent Orange, but noted since "IOM is not a physician and they did not examine this patient nor did they review this patients medical records" found that this disassociation has limited probative value in this case. Dr. Bash concluded, opining "to at least the 90% level of probability," that the Veteran's pancreatic cancer was due to his experiences in Vietnam. However, Dr. Bash's opinion did not provide a sufficient rationale for his conclusions to support service connection. Dr. Bash reported that because Agent Orange is a known carcinogen, and the Veteran was exposed to Agent Orange and was diagnosed with pancreatic cancer years later, that exposure to these herbicides caused his pancreatic cancer. Dr. Bash noted that IOM studies have found limited associations between pancreatic cancer and Agent Orange, and discussed the details of the studies conducted and the real risks of the induction of hepatobiliary cancer for those exposed to herbicides. However, he did not actually cite to any medical literature which showed a meaningful association between herbicides and pancreatic cancer, and he did not point to any other in-service cause of the Veteran's cancer. The Board concludes that the general statement that Agent Orange is a carcinogen is insufficient to support a grant of service connection for a cancer that development nearly two decades after the Veteran's presumed exposure. This is particularly true since, Dr. Bash did not even mention, or rule out, the role, if any, that the Veteran's smoking history played in the development of pancreatic cancer. In a treatment record from Grant medical center in April 1991, it noted that the Veteran had smoked approximately one pack per day for thirty years, but had quit approximately fifteen years earlier. This would appear potentially relevant given the fact that the rationale for Dr. Bash's opinion was that Agent Orange was a carcinogen, and the fact that the National Academy of Sciences in its Agent Orange update 2012 stated that Tobacco use is a risk factor for pancreatic cancer. In light of the foregoing, a medical opinion should be obtained addressing the etiology of the Veteran's pancreatic cancer and determining whether it was at least as likely as not (50 percent or greater) that it was the result of his presumed herbicide exposure during his active service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the claims folder to an appropriate VA examiner to obtain a medical opinion. The examiner is asked to review the claims folder and state whether it is at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's pancreatic cancer was caused by or related to his military service, or was otherwise caused by his presumed exposure to herbicides such as Agent Orange during active duty. In providing this opinion, the examiner should specifically address Dr. C. Bash's April 2015 opinion, the Veteran's smoking history (1 pack per day for 30 years, and quitting approximately 15 years prior to his death) and the fact that pancreatic cancer is not a presumptive herbicide exposure related disease. The examiner should also determine whether the Veteran had diabetes mellitus and if so whether that disease either i) caused his pancreatic cancer, or ii) was a contributory cause of his death. For a disease to be considered a contributory cause of death for VA purposes, 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. 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. A complete rationale should be provided for any opinion expressed, meaning tell us why you reached the conclusion you did. 2. Then, readjudicate the claim. If any benefit sought on appeal is not granted, issue an updated supplemental statement of the case and give the appellant and her representative an appropriate amount of time to respond. The case should be returned to the Board for further appellate consideration, as appropriate. 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs