Citation Nr: 1756495 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-02 663 ) 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 a claim for 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: National Association for Black Veterans, Inc. WITNESSES AT HEARING ON APPEAL The Appellant, A. W., and D. M. ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to July 1971. The Veteran died in May 1996. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2017, the appellant testified before the undersigned Veterans Law Judge during a video-conference hearing. A transcript of that hearing is of record. FINDINGS OF FACT 1. A February 1997 rating decision denied the Appellant's claim for entitlement to service connection for cause of death; the Appellant did not timely appeal that denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the February 1997 rating decision. 2. Evidence received since the February 1997 rating decision is new and material. 3. Having been presumed exposed to herbicides during service in Vietnam, the cause of the Veteran's death, ischemic heart disease, is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The February 1997 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 2. New and material evidence having been received; the claim for entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156(a), 3.303 (2016). 3. The criteria for service connection for the cause of the Veteran's death, ischemic heart disease, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria - New and Material Evidence A claim that is disallowed by a RO or the Board and not appealed within the required period is considered final and cannot be reopened unless new and material evidence is presented regarding the claim. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c), (West 2014); 38 C.F.R. §§ 3.160 (d), 20.302, 20.1100, 20.1104 (2016). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. New evidence means existing evidence not previously received by VA. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the Veteran has presented new and material evidence under 38 C.F.R. § 3.156 (a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been received, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis The record shows that a February 1997 rating decision is final with regard to its denial of service connection for cause of death. The Appellant did not timely appeal that denial; and new and material evidence was not submitted as to the issue within the one-year appeal period. However, the Appellant has since submitted evidence, in the form of a March 2015 amended death certificate, showing that one of the Veteran's causes of death is the condition of ischemic heart disease. As this amendment has not been previously evaluated by the VA, and it weighs directly on the issue of cause of death, the Board finds that the evidence is new and material, and the claim is reopened. Gilbert v. Derwinski, 1 Vet. App. 4 (1990); 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Legal Criteria- Service Connection Compensation may be paid to a veteran's surviving spouse when a veteran dies of a service-connected disability. 38 U.S.C.A. § 1310 (West 2014). A veteran "dies of a service-connected disability" if the disability was the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2016). The principal cause of death is when a "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 "contributed substantially or materially" to the death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, the 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 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). A disease associated with exposure to certain herbicide agents, to include ischemic heart disease, 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) (2016). The foregoing disease shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307 (a) (6) (iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 U.S.C.A. §§ 501(a), 1116 (West 2014); 38 C.F.R. § 3.309 (e). A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to 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 U.S.C.A. § 1116 (f) (West 2014). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 41, 442 -41, 449, and 61 Fed. Reg. 57, 586 -57, 589 (1996). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis The Veteran's DD Form 214, Report of Discharge, shows that the Veteran served in the Republic of Vietnam from February 2, 1970 to December 21, 1970. The Veteran's death certificate, amended in March 2015 to include ischemic heart disease as a cause of death, was received by the VA in January 2017. The Veteran's ischemic heart disease is presumed to have been caused by in-service exposure to herbicides. Thus, entitlement to service connection for the cause of the Veteran's death is granted. ORDER New and material evidence having been received; the claim for entitlement to service connection for the cause of the Veteran's death is reopened. Entitlement to service connection for the cause of the Veteran's death, ischemic heart disease, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs