Citation Nr: 1605509 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 13-15 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied 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 WITNESSES AT HEARING ON APPEAL Appellant and K.B. ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to August 1974. He passed away in November 2001, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The rating decisions found that new and material evidence had not been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. A notice of disagreement was received in May 2012, a statement of the case was issued in May 2013, and a substantive appeal was received in May 2013. During the course of this appeal, jurisdiction of this case was transferred to the RO in Huntington, West Virginia. In December 2009, the appellant testified at a personal hearing before a Decision Review Officer at the Huntington RO. A transcript of this hearing was prepared and associated with the claims file. In October 2015, the Board remanded this case for additional development, and the case has been returned for further appellate review. In January 2016, the appellant testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for the cause of the Veteran's 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. In a December 2007 rating decision, the Huntington RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death; she was notified of that decision in January 2008, but she did not perfect a timely appeal. 2. When considered by itself or in connection with the evidence previously assembled, the evidence received since the December 2007 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death. CONCLUSION OF LAW New and material evidence has been added to the record since the December 2007 rating decision; thus, the claim of entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2014)). In light of the favorable decision herein with respect to 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, the Board finds that any deficiencies with respect to satisfying the notice or assistance requirements of the VCAA are moot. II. New and Material Evidence Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2015). A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). For claims filed on and after August 29, 2001, 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) (2015). The Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). The appellant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Presumptive service connection based on Agent Orange exposure is available for disabilities that are listed under 38 C.F.R. § 3.309(e). The Board notes that the Veteran's death certificate lists his immediate cause of death as abdominal peritoneal signet cell adenocarcinoma. This disability is not listed as one of the disabilities that are eligible for presumptive service connection based on Agent Orange exposure. However, the appellant has questioned whether the Veteran's adenocarcinoma originated in his abdomen or elsewhere (such as in a location that is subject to presumptive service connection based on Agent Orange exposure). Furthermore, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the fact that a veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him or his surviving spouse from establishing service connection by way of proof of actual direct causation. The appellant has claimed entitlement to service connection for the cause of the Veteran's death based on the theory that the Veteran's death was caused by adenocarcinoma that resulted from in-service Agent Orange exposure. The appellant's claim of entitlement to service connection for the cause of the Veteran's death was originally denied by the December 2007 rating decision because the recorded cause of death, abdominal peritoneal signet cell carcinoma, is not entitled to presumptive service connection based on Agent Orange exposure. The rating decision also noted that the Veteran's cancer did not first manifest in service or within a year of separation. The appellant was notified of this decision in January 2008. She filed a notice of disagreement in September 2008 and was issued a statement of the case in January 2010. She filed a VA Form 9 substantive appeal in January 2011, but this submission was deemed to be untimely. The appellant did not appeal the finding of untimeliness. Therefore, the December 2007 decision became final, and the appellant must submit new and material evidence to reopen it. Of record at the time of the RO decision were the Veteran's service treatment records, service personnel records, and death certificate. Also of record were the appellant's written statements asserting, as expressed in an August 2007 statement, that her husband was an aircraft electrician who visited Vietnam periodically and was stationed in Thailand. Since the December 2007 rating decision, the Veteran's autopsy report and VA and private medical records have been added to the claims file. The appellant has also testified at personal hearings before a Decision Review Officer in December 2009 and before the undersigned Veterans Law Judge in January 2016. At the January 2016 Board hearing, the appellant submitted a letter that had been written by the Veteran to his parents when he was stationed in Thailand. In this letter, he described that he "flew over Vietnam as part of the tanker maintenance crew that had to refuel fighters on their way over there to stay." The appellant also testified that the Veteran served at the Royal Thai Air Base in Takhli, Thailand, from 1967 to 1968. This evidence, in particular the letter written by the Veteran to his parents while he was in service, is new in that it was not of record at the time of the December 2007 rating decision. It is material in that it constitutes a competent, contemporaneous description by the Veteran of specific duties that he performed while stationed in Thailand, and the appellant has testified to her belief that these duties exposed the Veteran to Agent Orange. This letter and Board hearing testimony thus constitute new and material evidence, as they pertain to in-service Agent Orange exposure. A finding of no in-service Agent Orange exposure was one of the bases for the December 2007 denial to the claim of entitlement to service connection for the cause of the Veteran's death. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death. To this extent, the benefit sought on appeal is granted. ORDER New and material evidence having been received, the claim of entitlement to service connection for the cause of the Veteran's death is reopened. REMAND As noted above, the appellant has claimed entitlement to service connection for the cause of the Veteran's death. She essentially contends that the Veteran's cancer (identified on his death certificate as abdominal peritoneal signet cell adenocarcinoma) was caused by in-service Agent Orange exposure. (At her January 2016 Board hearing, the appellant also noted that the Veteran's cancer was so widespread that she was uncertain whether it originated somewhere other than his stomach. That aspect of her claim is not the subject of the additional development that is being directed herein but may be undertaken by the AOJ on remand at its own discretion.) Before this claim may be adjudicated, it is necessary to determine whether the Veteran was exposed to Agent Orange during service. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR); Compensation and Pension Bulletin, May 2010. In the case at hand, there are two relevant potential avenues to establishing the claimed Agent Orange exposure. First, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. Id. In such cases, herbicide exposure is conceded for individuals who served in the Air Force as security policemen, as security patrol dog handlers, as members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. In the case at hand, the Veteran's service personnel records reflect that, from October 22, 1967, to November 8, 1968, he served as an Aircraft Electrical Repairman, with the "355 FMSq (PACAF)" at the Royal Thai Air Force Base (RTAFB) in Takhli, Thailand. The Board finds that a remand is warranted in order to attempt to verify whether the Veteran's duties placed him on or near the perimeter of Takhli RTAFB. This development should include attempting to obtain any daily work duty descriptions, performance evaluation reports, and any other potentially pertinent evidence that is not already of record. Second, individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). As noted above, the Veteran's service personnel records reflect that he served as an Aircraft Electrical Repairmen while stationed in Takhli. In a letter written to his parents, the Veteran described that "I flew over Vietnam as part of the tanker maintenance crew that had to refuel fighters on their way over there to stay." On remand, the AOJ should take all appropriate steps to attempt to verify whether the Veteran's squadron was permanently assigned a C-123 aircraft. 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. Take all appropriate measures to verify: (a) whether the Veteran's unit was stationed in an area in which herbicides were used, or on or near the perimeter at the Royal Thai Air Force Base in Takhli, Thailand, or (b) whether his duties as an Aircraft Electrical Repairman, with the "355 FMSq (PACAF)" placed him in an area in which herbicides were used, or on or near the perimeter of this base. This development should include attempting to obtain any daily work duty descriptions, performance evaluation reports, and any other potentially pertinent evidence that is not already of record. All steps taken to determine this information must be documented in the claims file and, if corroboration is not possible, than this should be documented in the claims file as well. 2. Take all appropriate measures to verify whether the Veteran's squadron "355 FMSq (PACAF)" at the Royal Thai Air Force Base in Takhli, Thailand, was permanently assigned a C-123 aircraft. All steps taken to determine this information must be documented in the claims file and, if corroboration is not possible, than this should be documented in the claims file as well. 3. After the development requested above has been completed, the AOJ should determine whether there is enough evidence to make a plausible determination that the Veteran was exposed to Agent Orange in service. If sufficient evidence is found, the AOJ should arrange for any additional development that it deems appropriate, such as submitting the record to a medical expert for an etiology opinion, if warranted. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs