Citation Nr: 1617898 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 13-09 607A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to DIC based on service connection for the cause of death of the Veteran. 2. Whether new and material evidence has been received to reopen a previously-denied claim of to DIC based on the provisions of 38 U.S.C.A. § 1151 (West 2014). 3. Entitlement to DIC based on the provisions of 38 U.S.C.A. § 1318 (West 2014). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' of Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to DIC under the provisions of 38 U.S.C. § 1151 on the basis that new and material evidence had not been submitted following a previous denial by a final May 1999 rating decision. The Veteran appeared at a hearing before the undersigned in February 2016. A transcript is of record. The issue of whether a May 1999 rating decision contained clear and unmistakable error (CUE) was raised at the February 2016 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The appellant has not submitted a claim and the matter is referred to RO. 38 C.F.R. §§ 3.155, 19.9(b) (2015). FINDINGS OF FACT 1. The pancreatic cancer, which was the underlying cause of the Veteran's death, was related to his presumed exposure to herbicides. 2. The claim for entitlement to DIC on the basis of 38 U.S.C.A. § 1318 is rendered moot by the grant of DIC on the basis of service connection for the cause of death. 3. The claim for entitlement to DIC on the basis of 38 U.S.C.A. § 1151 is rendered moot by the grant of DIC on the basis of service connection for the cause of death. CONCLUSIONS OF LAW 1. The criteria for DIC based on service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). 2. The criteria for dismissal of the claim for DIC under the provisions of 38 U.S.C.A. § 1151 are met. 38 U.S.C.A. § 7105(d)(5) (West 2014). 3. The criteria for dismissal of the claim for DIC under the provisions of 38 U.S.C.A. § 1318 are met. 38 U.S.C.A. § 7105(d)(5) (West 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Prior Decisions In May 1999, the RO denied entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. The appellant did not submit a notice of disagreement or new evidence within a year of that decision. This decision did not consider DIC on the basis of service connection and there is no indication that the appellant was claiming DIC on that basis. The claim based on § 1151 would be distinct from the claim based on service connection. See Hornick v. Shinseki, 24 Vet. App. 50 (2010). The May 1999 decision; therefore did not implicitly deny entitlement to DIC on the basis of service connection for the cause of death. See Ingram v. Nicholson, 21 Vet. App. 232 (2007). In December 2000 the appellant sought DIC benefits based on service connection for the cause of the Veteran's death. In a December 2000 letter the RO informed the appellant that there was insufficient information to grant entitlement to DIC. The letter asked her to submit evidence relating pancreatic cancer to service and informed her that if the evidence was not received within one year, entitlement to benefits might not be paid for the period prior to receipt of the evidence. The letter did not inform her that the claim was being denied or of her appeal rights. Under the provisions of 38 C.F.R. § 3.158(a) (2015), where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C.A. § 1805 (West 2014), based on such evidence shall commence not earlier than the date of filing the new claim. With the exception of the reference to § 1805, the provisions of this section are essentially unchanged from those in effect in 1972. The veteran's failure to provide the requested evidence within one year after being requested may have resulted in an abandoned claim under 38 C.F.R. § 3.158(a) (2015); but did not give rise to a final decision requiring new and material evidence to reopen. To the extent, the May 1999 decision could be deemed a denial of DIC on all bases, new and material evidence has been received. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Since the last final denial, the appellant submitted opinions in April 2008 and a November 2015 from a private physician that the pancreatic cancer, which caused the Veteran's death, was related to his period of service, to include his presumed exposure to herbicides. This evidence was not previously of record, pertains to the bases for the prior denial, and raises a reasonable possibility of substantiating the claim. III. Service Connection for Cause of Death The appellant contends that pancreatic cancer was a result of exposure to herbicides during the Veteran's service in Vietnam, or in the alternative that PTSD caused alcohol abuse, which led to his pancreatic cancer. When any veteran dies from a service-connected disability, the veteran's surviving spouse is entitled to DIC. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's death certificate shows that he died in November 1997, and pancreatic cancer is listed as the immediate cause of death on his death certificate. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). The record shows that the Veteran served from October 1968 to October 1970, and his DD Form 214 indicates that he served 11 months foreign service. He earned the Vietnam Service Medal with 3 Bronze Service Stars, which is indicative of Vietnam service, and the Combat Infantryman Badge, which is indicative of combat service. Thus, the evidence shows that Veteran served in Vietnam during the requisite period, and he is presumed to have been exposed to herbicides in the absence of affirmative evidence to the contrary. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2015). Diseases associated with herbicide exposure are set forth in 38 C.F.R. § 3.309(e) (2015) but do not include pancreatic cancer. Even though the Veteran is not entitled to a presumption of service connection for a disability based on exposure to herbicides, he is not otherwise precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). In Polovick v. Shinseki, the Court recognized that to permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection. 23 Vet. App. 48, 55 (2009). The Court maintained that this is contrary to the recognition in Stefl that "[t]he existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association." Polovick, Vet. App. at 55 (quoting Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). The Agent Orange Updates use only a general statistical analysis to determine whether a disease should be service connected on a presumptive basis and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. In regard to evidence that relates to whether there is a nexus between the Veteran's in-service herbicide exposure and diagnosed pancreatic cancer, the Board notes that a private physician, Dr. C.N.B. provided two opinions relating the Veteran's pancreatic cancer to his exposure to herbicides. In April 2008, he noted that he reviewed the Veteran's medical records, service records, imaging reports, family lay statements, death certificate, and medical literature in preparing his opinion. The physician indicated that the opinions were made to "a high degree of medical certainty (much more likely than not)." The physician noted his expertise, special knowledge, and competency supporting his ability to provide the requested opinion. He noted that he has spoken to the patient, referenced current applicable publications, examined the patient by way of reviewing his pivotal imaging study reports, reviewed pertinent positive and negative medical data, and reviewed other physicians' professional medical opinions. The physician opined that the Veteran's pancreatic cancer was caused by exposure to Agent Orange. The physician noted that Agent Orange was a known carcinogen and had a biologically plausible mechanism, which caused cancer as per the multiple volumes from IOM on veterans and Agent Orange. The physician noted that 33 studies had found a relative risk equal to or greater than those that meet the VA criteria for as likely as not associations. The report listed 26 studies with a relative risk less than 1. The physician further noted that the "most pivotal" study of 1,133 U.S. farmers in 1993 showed a relative risk of 1.1 with a 95% 1.1-2.1 confidence interval, which did not bridge 1. The physician additionally noted that he did not see a more likely etiology for the Veteran's pancreatic cancer as his record did not contain any other risk factors. Dr. C.N.B. provided another opinion in November 2015 in which he repeated that medical literature supported a finding that the Veteran's death was due to the pancreatic cancer that was directly caused by Agent Orange exposure. He reported that the 1993 study of 1,133 cases of pancreatic cancer showed a relative risk of 1.1. He explained that any relative risk of 1 or greater meets the VA as likely as not requirement; this study further supported his opinion because it was conducted using over 1,100 patients, which added to the strength of its analysis due to its size. As noted, the Veteran's death certificate indicates pancreatic cancer was the immediate cause of death. The opinions Dr. C.N.B. provided on the appellant's behalf indicates this condition was the result of the Veteran's service and was the principal cause to his death. Thus, entitlement to DIC on the basis of service connection for the cause of the Veteran's death is warranted. See 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). Because DIC is being granted on the basis of service connection for the cause of death, the issues of entitlement to that benefit under the alternate bases provided by 38 U.S.C.A. §§ 1155, and 1318 are rendered moot. See Hornick v. Shinseki, at 53. ORDER Entitlement to DIC based on service connection for the cause of death of the Veteran is granted. The issue of entitlement to DIC on the basis of 38 U.S.C.A. § 1318 is dismissed. The issue of entitlement to DIC on the basis of 38 U.S.C.A. § 1151 is dismissed. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs