Citation Nr: 1756489 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-36 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen the Appellant's 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1966 to February 1970, to include service in the Republic of Vietnam; he was awarded the Purple Heart Medal, among other decorations. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona in which the RO denied reopening the claim. FINDINGS OF FACT 1. The Veteran died in January 1985; the cause of death was cerebrovascular accident, as a consequence of acute lymphocytic leukemia. The Appellant is his surviving spouse. 2. In a May 1985 rating decision, the AOJ denied the Appellant's claim of entitlement to service connection for the cause of the Veteran's death. The Appellant did not appeal or submit additional evidence within one year of the notice of the decision, therefore the decision became final. 3. Additional evidence received since the May 1985 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Appellant's claim of entitlement to service connection for the cause of the Veteran's death. 4. Acute lymphocytic leukemia is causally related to the Veteran's service. CONCLUSION OF LAW 1. The AOJ's May 1985 decision denying entitlement to service connection for the cause of the Veteran's death is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.104, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1310, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312, 20.1106 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Reopen the Claim of Service Connection for the Cause of the Veteran's Death Pertinent Law and Regulations If a claim has previously been 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. New evidence means 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 relevant evidence is that which has been submitted by the claimant since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, 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, to include by triggering the Secretary's duty to assist. Shade, 24 Vet. App. at 118. Analysis In a May 1985 rating decision, the RO denied service connection for the cause of the Veteran's death, finding that the evidence of record did not support that the cause of death, cereberovascular accident and acute lymphocytic leukemia was related to service. The Appellant did not appeal that rating decision or file new and material evidence within one year, therefore that decision became final. In April 2013, the Appellant filed an application to reopen the claim of entitlement to service connection for the cause of the Veteran's death. As the claim was previously made final, the Appellant must present new and material evidence in order for the Board to adjudicate the claim on the merits. Since the date of the prior final decision, the Appellant testified at a hearing before the Board. During that testimony, the Appellant raised questions regarding the onset of the Veteran's leukemia symptoms and a potential relationship between acute lymphocytic leukemia and exposure to herbicide agents. The Appellant requested that the Board refer the claim for an independent medical opinion, which is now of record. The aforementioned evidence is not cumulative or redundant of the evidence of record at the time of the last prior final denial and raises a reasonable possibility of substantiating the claim. Without yet addressing the probative value of this opinion, the Board acknowledges that this evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted. III. Service Connection for the Cause of the Veteran's Death Pertinent Law and Regulations Entitlement to dependency and indemnity compensation (DIC), is provided when a disability incurred in, or aggravated by, active service was the principal or contributory cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Entitlement is determined under the same criteria used to establish service connection contained in 38 U.S.C. Chapter 11. 38 U.S.C. § 1310. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). To establish service connection for the cause of a Veteran's death, evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). 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, shall 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 C.F.R. § 3.307(a)(6)(iii). Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran (presumed exposed to an herbicide agent) who develops one of several enumerated conditions associated with herbicide agent exposure. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §3.309 (e). Analysis The Veteran passed away in January 1985. According to the Veteran's death certificate, the cause of death was cerebrovascular accident, as a consequence of acute lymphocytic leukemia (ALL). The first diagnosis of ALL appears in the record in a June 1984 pathological report from the Dallas VA Medical Center. The Appellant first filed a claim for service connection for the cause of the Veteran's death in February 1985. The claim was denied as ALL was not incurred in service and was not diagnosed within a year of separation from service. The Appellant argues, in pertinent part, that the diagnosed ALL was related to exposure to herbicide agents, to include Agent Orange, as a result of the Veteran's service in the Republic of Vietnam. The Board concedes that the Veteran served in the Republic of Vietnam and, accordingly, is presumed to have been exposed to herbicide agents. Under 38 C.F.R. § 3.309(e), diseases associated with exposure to herbicide agents include all chronic B-cell leukemias, including but not limited to, chronic lymphocytic leukemia (CLL). The Appellant contests that ALL is included in those leukemias and, if not, that the Veteran is entitled to direct service connection as a result of a causal relationship between exposure to herbicide agents and ALL. In September 2017, the Board determined that an additional medical opinion was necessary to decide the claim. The Board requested that an oncologist opine on whether ALL qualified as a chronic B-cell leukemia in accordance with 38 C.F.R. § 3.309 and, if not, whether it was at least as likely as not that the Veteran's ALL was causally related to exposure to herbicide agents in the Republic of Vietnam. In November 2017, the Board obtained an expert medical opinion from an oncologist, through the Veterans Health Administration. 38 C.F.R. § 20.901 (2017). The oncologist responded that based on a review of the bone marrow report and the Veteran's treatment, the Veteran definitively had ALL, not CLL. Regarding a causal link between exposure to herbicide agents and ALL, the oncologist found that the risk of ALL might be increased by exposure to certain chemicals, including benzene. She cited a study that concluded that leukemia following exposure to chemicals in pesticides could be either a lymphoblastic or a myeloblastic subtype. She explained that "Agent Orange has been linked to B-cell leukemias and given the common B-cell origin, albeit at different stages, one can assume causality not only with CLL but possibly also with ALL." Furthermore she stated that there is a more defined causality with acute myelogenous leukemia (AML) and that the Veteran's follow-up bone marrow report at the Dallas VA Medical Center had also shown myeloblasts, which is seen in AML. This "potentially alludes to a mixed leukemia picture adding to the causality." Based on this analysis, she concluded that it was at least as likely as not that ALL was causally related to the Veteran's exposure to herbicide agents during military service. The VHA opinion is probative, given the extensive medical rationale. There is no medical evidence of record that provides a countering opinion regarding the causal relationship between herbicide agent exposure and ALL. In light of this, and resolving all reasonable doubt in the Appellant's favor, the Board finds that entitlement to service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs