Citation Nr: 1800660	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-22 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Whether new and material evidence has been submitted in order to reopen a claim for service connection for the Veteran's cause of death, and, if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Appellant and her daughers


ATTORNEY FOR THE BOARD

J. Unger


INTRODUCTION

The Veteran served on active duty from December 1966 to September 1970.  He died in August 1999, and the appellant is claiming as his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs VA) Regional Office (RO) in Milwaukee, Wisconsin.  Jurisdiction over the file has been subsequently transferred to the RO in Montgomery, Alabama.

In June 2016, the Appellant and her two daughters testified before the undersigned Veteran's Law Judge.  A copy of the transcript has been associated with the file. 

The reopened claim for service connection for cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a final September 1999 rating decision, the RO determined that no evidence had been provided that established a relationship between the Veteran's military service and his death and denied the claim for service connection for the Veteran's cause of death. 

2.  Evidence added to the record since the September 1999 rating decision is not cumulative or redundant of the record at the time of the final decision and raises a reasonable possibility of substantiating the Appellant's claim for service connection for the Veteran's cause of death.


CONCLUSIONS OF LAW

1.  The September 1999 rating decision that denied service connection for cause of death is final.  38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 

2.  New and material evidence has been received to reopen the claim of entitlement to service connection for cause of death.  38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board's decision to reopen the Appellant's claim of entitlement to service connection for the Veteran's cause of death is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  However, consideration of the merits of the issue is deferred pending additional development consistent with the VCAA.

By way of background, the Appellant's original claim for entitlement to service connection for cause of death was denied in a September 1999 rating decision.  At such time, the RO determined that there was no relationship between the Veteran's cause of death and his military service.  The Appellant did not appeal this decision. 

The Appellant filed a request to reopen her claim in July 2013.  The claim was denied in an October 2013 rating decision, which was issued in November 2013.  At the time of such decision, the evidence of record included service treatment records, VA treatment records, and a statement from the Appellant.  The RO determined that no new and material evidence to reopen the Appellant's claim had been received.  The Appellant submitted additional evidence and in a February 2014 rating decision, the RO determined that new and material evidence had been received to reopen the Appellant's claim.  However, the RO also determined that the original denial should be continued as the evidence of record did not establish a nexus between the Veteran's cause of death and his service. 

Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104 (a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). 

With respect to the Appellant's claim, in September 1999, the Appellant was advised of the decision and her appellate rights.  However, no further communication regarding her claim was received until her July 2013 application to reopen the claim for service connection for cause of death.  Therefore, the September 1999 rating decision is final.  38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 

With respect to the claim, the Board has considered the applicability of 38 C.F.R.   § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Appellant's claim for service connection for cause of death was received prior to the expiration of the appeal period stemming from the September 1999 decision.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). 

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.   §§ 7104 (b), 7105(c).  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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id. 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

With respect to the cause of death claim, relevant evidence received since the September 1999 decision includes additional VA treatment records, statements and hearing testimony from the Appellant, and statements from the Appellant and Veteran's daughters.  In this regard, the Appellant alleged that her husband's cause of death was due to his time in Vietnam and specifically his exposure to Agent Orange while serving in the Navy.  During the Appellant's hearing, her representative alleged that the Veteran spent time aboard brown water vessels and therefore his cancer and ultimately his cause of death should be presumptively service connected. 

The Board concludes that the evidence received since the prior final denial is new in.  It is material because it relates to the unestablished fact necessary to substantiate the Appellant's claim.  Specifically, the newly received evidence speaks to a potential relationship, or nexus, between the Veteran's cause of death and his military service.  As the Appellant's claim was previously denied based on a lack of evidence of nexus, and the newly received evidence addresses such a relationship, thus tending to prove a previously unestablished fact necessary to substantiate the underlying claim and raising a reasonable possibility of substantiating such claim, the Board finds that new and material evidence has been received.  Accordingly, the claim of entitlement to service connection for cause of death is reopened.


ORDER

New and material evidence having been received, the application to reopen the claim of entitlement to service connection for the Veteran's cause of death is granted.
REMAND

At the time of the Veteran's death, service connection had not been established for any conditions.  The Veteran had sought service connection for depression/nervousness but such claim had been denied. 

The death certificate shows that the Veteran died in August 1999 with an immediate cause of death listed as metastatic nonsmall cell lung cancer.  
The Appellant has presented the theory that her husband's death was the result of his cancer which was caused by exposure to Agent Orange during his service in Vietnam.  During her June 2016 hearing, the Appellant through her representative noted that the type of cancer from which the Veteran died would qualify for presumptive service connection provided exposure to Agent Orange could be established.  Furthermore, the Appellant's representative indicated that they believed the Veteran served aboard a brown water vessel during his time in the Navy.  

VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit and such efforts may include obtaining a VA medical opinion in a cause-of-death case to help substantiate the Appellant's claim.  38 U.S.C. § 5103A (a)(1); Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1321-22 (Fed. Cir. 2008).  Therefore, the Board finds that the evidence of record raises a question as to whether the Veteran's metastatic nonsmall cell lung cancer is related to his military service, specifically exposure to Agent Orange.  As such, a medical opinion addressing such inquiries should be obtained.

In addition, the Board finds that a remand is necessary in order to obtain outstanding records.  As previously noted, the Appellant's representative indicated at the Board hearing that they believed that the Veteran had served aboard a brown water vessel during his time in the Navy and therefore was presumed exposed to Agent Orange.  While on remand, the AOJ should obtain any additional military personnel records, specifically those indicating which ships the Veteran served aboard.  In addition, the AOJ should contact the National Archives Records Administration (NARA) and request that the deck logs for those ships be obtained.  Additionally, upon receipt of the deck logs, the AOJ should forward those documents to the Joint Services Records Research Center (JSRRC), for a determination as to whether any of the reported locations establish inland water service in Vietnam.  In this respect, the Board does not view itself or the AOJ as possessing the competence to interpret longitude and latitude position charts.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the following records in the possession of a federal agency, if available:

All of the Veteran's available service personnel records for his period of service December 1966 to September 1970, specifically those indicating which ship(s) the Veteran served aboard. 

2.  Associate with the claims folder the following documentary information, if available:

Deck logs for any and all ships that the Veteran served aboard for his period of service from December 1966 to September 1970.

3.  Upon receipt of the deck logs, the AOJ should forward the deck logs to JSRRC and request them to determine whether the ship(s) entered the inland waterways of Vietnam, as claimed by the Appellant and her representative, based upon an analysis of the longitude and latitude position charts.

4.  After obtaining any outstanding records, obtain a VA opinion from an appropriate medical professional regarding the cause of the Veteran's death.  The claims file must be made available to, and be reviewed by, the examiner. 

Following a review of all the relevant evidence, and considering accepted medical principles, the examiner is requested to address the following:

The examiner is asked to address whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran's metastatic nonsmall cell lung cancer (which caused his death) was related to his service, specifically his alleged exposure to Agent Orange. 

The examiner should consider all lay medical evidence of record, noting that lay persons are competent to report events and symptoms of which they have first-hand knowledge.  

A complete and detailed rationale must be provided for opinions offered.

The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).




______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs