Citation Nr: 1752612 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. 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. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robin Hood, Attorney WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD S. S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1965 to November 1968. He died in May 1985. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2017, the appellant presented testimony before the undersigned Veterans Law Judge. A hearing transcript is of record. FINDINGS OF FACT 1. An August 1985 rating decision denied service connection for the cause of the Veteran's death; the appellant did not appeal the decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the August 1985 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 3. The Veteran died in May 1985; the immediate cause of his death, as shown on the death certificate, was bronchopheumonia, due to acute leukemia, blastic, with chronic myelogenous leukemia as the underlying cause. 4. At the time of his death, the Veteran was service-connected for tropical sprue. 5. The Veteran's fatal leukemia was due to his service-connected tropical sprue, as well as presumed exposure to herbicide agents and conceded exposure to benzene in service. CONCLUSIONS OF LAW 1. The August 1985 rating decision denying the claim of entitlement to service connection for the cause of the Veteran's death is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria to reopen the claim of entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. 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). The appellant's initial claim of entitlement to service connection for the cause of the Veteran's death was denied in an August 1985 rating decision on the basis that there was no evidence of a nexus between the Veteran's death and his service-connected tropical sprue. The appellant was notified of the determination and her appellate rights but did not appeal. New and material evidence was not received within one year of its issuance. Thus, the August 1985 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Evidence received more than one year since the August 1985 rating decision includes the appellant's February 2017 Board hearing testimony, and a February 2017 positive nexus statement by Dr. M.L., MD. This evidence is new, as it was not considered in the prior denial. It is also material, because it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As such, the appellant has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran's death. Service Connection The appellant seeks to establish service connection for the cause of the Veteran's death. She asserts that the Veteran's death is related to his service-connected tropical sprue. In the alternative, she asserts that the Veteran's death is related to in-service exposure to herbicide agents. She also asserts that Veteran's death is related to various chemical exposures, including benzene, associated with his military occupational specialty (MOS) as an aircraft mechanic. See February 2017 Board Hearing Transcript (Tr.) at 5. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability either incurred in or aggravated by his military service, or which was proximately due to, the result of, or aggravated by a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. In this case, the Veteran's death certificate reflects that he died in May 1985 and that the immediate cause of death was bronchopneumonia, due to acute blastic leukemia, and the underlying cause was chronic myelogenous leukemia. At the time of his death, service connection was in effect for tropical sprue, rated at 10 percent disabling. The Veteran's DD Form 214 reflects his military occupational specialty (MOS) was aircraft armament repairman. The Board finds that, by virtue of his MOS, the Veteran was likely exposed to hydraulic fluids, cleaners, solvents, air fuels, and other chemical agents that contain benzene, as such exposures are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). Moreover, the Veteran's DD Form 214 reflects that he served one year in Vietnam during his period of active duty from November 1965 to November 1968. Thus, he is presumed to have been exposed to herbicide agents in service. 38 C.F.R. § 3.307(a)(6)(iii). While there is no competent opinion of record addressing whether the Veteran's acute or chronic myelogenous leukemias are considered "chronic B-cell leukemias" and therefore subject to presumptive service connection based on herbicide agent exposure, the Board need not explore that matter further, as service connection is available on a direct basis, as the only competent opinion of record is in favor of the claim. 38 C.F.R. § 3.309(e); Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Specifically, Dr. M.L. opined in February 2017 that it was more likely than not that the Veteran's service-connected tropical sprue contributed to his ultimate demise from chronic myelogenous leukemia (CML) and acute myelogenous leukemia (AML), as well as his exposure to herbicide agents and benzene while in service. Dr. M.L. explained that benzene is a well-established carcinogenic and causes AML, which ultimately caused the Veteran's death. He further stated that CML has a long prodromal stage and that although it was first evident in 1984, it is as likely as not that it was already present in 1971, or before, in a clinically evident or subclinical form. Additionally, Dr. M.L. reported that medical literature supports his conclusion that tropical sprue contributed to the Veteran's leukemia, as celiac sprue, a condition similar to tropical sprue, has been associated with various malignances. He noted that tropical sprue complicates the management of CML and AML, especially regarding the tolerance of chemotherapy and this greatly affects the decision to utilize chemotherapy as a form of treatment. The appellant testified that the Veteran received treatment in the form of blood transfusions instead of chemotherapy. See Board Hearing Tr. at 7. This opinion is highly probative, as it was based on a thorough review of the Veteran's relevant medical history and contains a detailed rationale. Accordingly, the Board finds that the appellant's claim of entitlement to service connection for the Veteran's cause of death is warranted. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. Service connection for the cause of the Veteran's death is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs