Citation Nr: 1757087 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-15 619A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: C. Bennett Gore, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1964 to August 1967 and from January 1977 to January 1994. 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. Jurisdiction was subsequently transferred to the Columbia, South Carolina Regional Office. In November 2016, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. FINDINGS OF FACT 1. A November 2002 Rating Decision denied the claim for service connection for the cause of death. 2. New and material evidence has been received since the November 2002 Rating decision began final, and the claim is reopened. 3. The Veteran died in February 2001; the death certificate listed the immediate cause of death as cancer of the esophagus. 4. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 5. The competent and probative evidence of record shows that the Veteran's cause of death is related to his exposure to Agent Orange in service. CONCLUSIONS OF LAW 1. The November 2002 rating decision is final. 38 U.S.C.A. § 5107 (2012). 2. New and material evidence was received after the November 2002 rating decision became final. 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5103A, 5107 (2012). 38 C.F.R. §§ 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's claim has been considered with respect to VA's duty to notify and assist. The outcome below is favorable. Thus, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. New and Material Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Appellant's claim for entitlement to service connection for cause of death was previously denied in a November 2002 rating decision. The Appellant did not file a notice of disagreement, and the decision became final. Evidence added to the record after the November 2002 rating decision includes statements and testimony from the Appellant, VA and private medical opinions, and medical treatment records. The Board finds that the evidence submitted since the November 2002 rating decision is new and material. This evidence is new because it had not been previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - namely, evidence of a nexus between the Veteran's military service in the Republic of Vietnam and his death from esophageal cancer. Therefore, in light of the low threshold for reopening claims noted above, the Board finds new and material evidence has been received, and Appellant's claim for entitlement to service connection for cause of death may be reopened. III. Service Connection for Cause of Death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for the cause of the veteran's death may be granted if a service-connected disability was either the principal, or a contributory, cause of the veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In cases of service connection for the cause of death of a veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Appellant contends that the Veteran's service in the Republic of Vietnam and presumed exposure to herbicide agents, including Agent Orange, caused his esophageal cancer and subsequent death. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. § 1116(f); 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active service and manifests certain enumerated diseases to a compensable degree any time after such service, such disability will be service connected even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The following diseases are deemed associated with herbicide agent exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus (Type II), Hodgkin's disease, ischemic heart disease, hairy cell leukemia and other chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The record shows that the Veteran served in the Vietnam during the Vietnam War era. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116(f). The Veteran died in February 2001. The Veteran's death certificate lists the primary cause of death as cancer of the esophagus. No underlying causes or other contributing conditions were noted. Esophageal cancer is not among the diseases listed under 38 C.F.R. § 3.309(e). There is no competent evidence of record indicating that the Veteran's death resulted from a cancer presumptively related to herbicide exposure. Therefore, the Board finds that service connection is not warranted for this disability on a presumptive basis due to herbicide exposure. In addition to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309, service connection for a disability claimed as due to herbicide agent exposure may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In February 2011, a VA examiner opined that, after consulting with an oncological expert, he could not connect the Veteran's 1998 carcinoma of the epiglottis to his esophageal cancer without resorting to mere speculation. The examiner noted that there was a "certain possibility" that the epiglottal carcinoma may have been related to Agent Orange exposure, but that the Veteran was later diagnosed with esophageal cancer and the examiner could not connect the two without resorting to mere speculation. Also of record is a June 2017 opinion from Dr. E.W.A. opining that it is at least as likely as not that the Veteran's service in Vietnam and exposure to Agent Orange contributed to the development of esophageal cancer and thus contributed to his death. Dr. E.W.A. stated that he based his opinion on his review of the Veteran's claims file and relevant medical literature. Dr. E.W.A. is a medical professional and the Board finds that he is competent to render an opinion regarding the Veteran's cause of death. Further, the medical opinion was based on a review of the Veteran's complete claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The Board therefore finds it highly probative of a nexus between the Veteran's cause of death and his exposure to Agent Orange in service. Accordingly, giving any reasonable doubt in the Appellant's favor, the Board finds that the evidence establishes that the Veteran's cause of death, esophageal cancer, was related to his exposure to herbicide agents, including Agent Orange, in service. 38 U.S.C. §§ 5107, 1310; 38 C.F.R. §§ 3.102, 3.312. On this basis, service connection for the cause of the Veteran's death is warranted. ORDER New and material evidence having been received, the claim for service connection for cause of death is reopened. Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs