Citation Nr: 1753779	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-34 344A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include: service connection for the cause of death.

2. Entitlement to DIC benefits, to include: service connection for the cause of death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. M. Johnson, Counsel


INTRODUCTION

The Veteran had active service from January 1954 to January 1957.  He died in May 2000.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin.  Jurisdiction is currently with the Regional Office (RO) in Detroit, Michigan.
 
The appellant testified before the undersigned at a February 2016 videoconference hearing.  A transcript of the hearing has been associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2014).


FINDINGS OF FACT

1. In February 2006, the Board denied the appellant's claim for service connection for the cause of death.  Thereafter, the Board decision became final.

2. Since the February 2006 Board decision, the appellant has submitted new evidence that relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim.

3. The Veteran was an on-site participant in Operation TEAPOT.   

4. The Veteran was diagnosed with small cell lung cancer, which was determined to be the principal cause of the Veteran's death. 

5. The preponderance of the evidence of record shows that the Veteran's small cell lung cancer was related to his period of service.    


CONCLUSIONS OF LAW

1. The February 2006 Board decision is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (2017).

2. The evidence received since the February 2006 Board decision is new and material, and the claim for service connection for the cause of the Veteran's death is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2017).

3. The Veteran's small cell lung cancer was incurred in service.  38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100.  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  See Knightly v. Brown, 6 Vet. App. 200 (1994).  

For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the 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) (2017).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to assist.  Id. at 118.

Moreover, the Veteran 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.  Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element).  In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In February 2006, the Board denied the appellant's claim that the Veteran's death was due to his period of active service.  The Board noted that the Defense Threat Reduction Agency could not confirm that the Veteran was an on-site participant in a U.S. atmospheric nuclear test, despite evidence that his unit was organized to participate in Operation TEAPOT in Nevada in 1955.  Due to these findings, the Board found that the evidence did not establish that the veteran was exposed to radiation during active duty.  

The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims. The Board decision was affirmed and became final.

After the appellant's claim to reopen became final, the appellant submitted an application to reopen her claim for service connection for the cause of the Veteran's death.  The appellant submitted a letter from the Torts Branch Civil Division of the US Department of Justice and an "Acceptance of Payment Form for Onsite Participants."  Presumed credible, the additional evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  Accordingly, the Board finds that the claim for service connection for the cause of the Veteran's death is reopened.

Entitlement to Service Connection for the Cause of Death

Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.5.  In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death.  A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.

A principal cause of death is one which, 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 which contributed substantially or materially to cause death, or aided or lent assistance to the production of death.  See 38 C.F.R. § 3.312(c).  The Veteran's primary cause of death was diagnosed as small cell lung cancer.  

At the time of the Veteran's death, he was not service-connected for any disability.
Nevertheless, the appellant may establish service connection for the cause of the Veteran's death when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994).  

There is a presumption of service connection for "radiation-exposed veterans."  38 C.F.R. § 3.309 (d) (2017).  If a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309 (d)(2), a rebuttable presumption of service connection arises.  See 38 U.S.C. §§ 1112, 1113 (2014); 38 C.F.R. § § 3.307, 3.309(d) (2017).  Lung cancer is listed in 38 C.F.R. § 3.309 (d) (2).  A "radiation- exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity.  The appellant asserts that the Veteran while serving with Marine Corps Test Unit #1 (MCTU #1), was an onsite participant in Operation TEAPOT and as a result, visited the Nevada Test Site, where he was exposed to ionizing radiation.
 
Operation TEAPOT occurred during the time period from February 18, 1955 to June 10, 1955.  38 C.F.R. § 3.309 (d)(3)(v)(N) (2017).  According to a March 2008 letter from the Department of the Navy, the Veteran's unit the MCTU #1 actively participated in the development and refinement of tactics used in support of the new concept of atomic warfare.  "During the first year of activation, MCTU #1 participated in Exercise Desert Rock VI at the Atomic Proving Grounds in Nevada in assaults utilizing atomic fire support."  An earlier letter from the Defense Threat Reduction Agency noted that the Veteran's unit records were reviewed to determine of the Veteran had been a participant in Operation TEAPOT at the Nevada Test Site, but that his unit diaries did not confirm his participation.

In October 2014, the appellant submitted a letter from the Torts Branch Civil Division of the US Department of Justice and an "Acceptance of Payment Form for Onsite Participants."  
 
The Board finds that the March 2008 letter from the Department of the Navy indicating that the Veteran's unit was involved in training at the Atomic Proving Grounds in Nevada and the October 2014 letter from the Department of Justice recognizing the Veteran as an onsite participant outweighs the inconclusive findings of the Defense Threat Reduction Agency report from 2005.  The Board also finds appellant's statement that the Veteran served in Operation TEAPOT to be credible and finds that the Veteran was present at the Nevada Test Site during Operation TEAPOT.  Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran was an on-site participant in Operation TEAPOT.  Accordingly, the Board finds that the Veteran is a "radiation-exposed veteran."  

Under 38 C.F.R. § 3.309(d), lung cancer is a condition that warrants presumptive service connection for radiation-exposed veterans.  The Board does not find that the Veteran's reported history of tobacco use is sufficient to rebut this presumption.  As small cell lung cancer is listed as the immediate cause of the Veteran's death, service connection for the cause of the Veteran's death is warranted.  38 U.S.C. § 1310; 38 C.F.R. § 3.312. 




ORDER

The application to reopen the claim of entitlement to service connection for the cause of the Veteran's death is granted.

Service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of VA monetary benefits.


____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs