Citation Nr: 1603688 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 14- 22 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for the cause of the Veteran's death, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from May 1972 to August 1974. He passed away in July 2000. The Appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In this decision, the Board is granting the Appellant's claim. It is unclear from the record whether a claim for dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318 was ever adjudicated; however, because service connection for the cause of the Veteran's death is a greater benefit, any DIC claim under section 1318 is now mooted. In October 2015, the Appellant had a personal hearing before the undersigned VLJ. FINDINGS OF FACT 1. The Appellant's claim for service connection for the cause of the Veteran's death was denied by the Board in December 2005, and affirmed by the Court of Appeals for Veterans Claims in November 2007. She did not appeal the Court's decision. That decision, stemming from a November 2000 rating decision, is final. Since then, new and material evidence has been received that relates to an unestablished fact necessary to substantiate the claim. 2. In resolving all doubt in the Appellant's favor, the Veteran's brain cancer was caused by his service. CONCLUSIONS OF LAW 1. The November 2000 rating decision has become final. New and material evidence has since been received, and the claim for service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1103 (2015). 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening service connection claim In general, VA decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.1100, 20.1103 (2015). A finally disallowed claim may be reopened when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156 (2015). "New" evidence is evidence not previously submitted to agency decisionmakers. Evidence is "material" if it 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). The Appellant's initial claim for service connection for the cause of the Veteran's death was denied in November 2000. The Board also denied the claim, in December 2005, which was affirmed by the Court of Appeals for Veterans Claims (Court) in November 2007. At that time, the Court found the Board had adequately supported its finding that the evidence did not show a relationship to service. Since that decision, evidence has been received that is new and material and raises the possibility of substantiating the claim. The service connection claim is reopened. Service Connection for Cause of Death under 38 U.S.C.A. § 1310 Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that the disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2015). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2015). The Veteran's immediate cause of death was listed as brain cancer, and no other significant conditions were listed as contributing to death. At the time of his death, he was not service-connected for brain cancer. The Appellant contends that brain cancer was caused by exposure to radiation during service. A VA examiner opined in June 2005 that the Veteran had never been issued a radiation dosimeter, thus it was very unlikely that he was exposed to radiation. He therefore opined that it was unlikely that brain cancer was related to service. An August 2008 email from personnel at Wright Patterson Air Force Base indicates that the Veteran very likely was exposed to radiation while on guard duty. In March 2011, a private, Board-Certified internist opined that the Veteran's brain cancer was likely caused by service. In relying on the August 2008 email, as well as other personnel records showing the Veteran was assigned to Nuclear Safety and Protection as an armorer and weapons mechanic, the physician opined this was his only likely exposure. Indeed, following service, he was an accountant and not in proximity of radiation or nuclear material. He indicated that radiation can cause cancer regardless of the amount of exposure, and that cancer is the primary health effect from radiation exposure. He said that cancer can take years to develop after exposure. He noted the Veteran was fairly young to pass away from brain cancer, and that radiation during service is the only explanation because there was no other opportunities for exposure. He indicated he based his opinion on the evidence as well as his training and experience as a physician for over 30 years The Board finds the March 2011 opinion more probative than the June 2005 VA examination report, as it contains more detail and explanation. The VA opinion is largely based on an absence of records or documentation, which by itself is insufficient to deny service connection. Accordingly, service connection for the cause of the death is granted. ORDER The claim of entitlement to service connection for the cause of the Veteran's death is reopened. Service connection is granted for the cause of the Veteran's death. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs