Citation Nr: 1801203	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-32 711	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for the cause of the Veteran's death, claimed as due to exposure to herbicide agents.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The appellant



ATTORNEY FOR THE BOARD

Alexander Panio, Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to April 1971.  He died in August 1993 and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2016, the appellant testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  


FINDINGS OF FACT

1. In a final decision issued in April 1994, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death.

2.  Evidence added to the record since the final April 1994 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death.

CONCLUSIONS OF LAW

1.  The April 1994 rating decision that denied the appellant's of entitlement to service connection for the cause of the Veteran's death is final.  38 U.S.C.A. 
§ 7105(c) (West 1991) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993) [(2017)].

2.  New and material evidence has not 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(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Neither the appellant nor her representative has alleged any deficiency with respect to VA's duties to notify or assist.  See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  Analysis
 
The Veteran died in March 2013, and his death certificate showed the primary cause of death as renal (kidney) cancer with brain metastasis.  Contributory causes of death were identified as seizures, liver metastasis encephalitis, and cerebral edema.  The appellant's original claim for service connection for the cause of the Veteran's death was denied in a March 1994 rating decision on the basis that none of the primary or contributory causes of death were associated with the Veteran's service, to include his acknowledged in-service exposure to herbicide agents.  In reaching such decision, the RO considered the Veteran's service treatment records, his death certificate, and his post-service treatment records.

In April 1994, the appellant was advised of the decision and her appellate rights.  In this regard, the Board notes that she has stated that she has no recollection of such decision; however, there is no indication that notice of the decision was sent to an incorrect address or otherwise returned as undeliverable.  No further communication regarding the appellant's claim of entitlement to service connection for the cause of the Veteran's death was received until March 2013, when VA received her application to reopen such claim.  Additionally, no new and material evidence was received within one year of the issuance of the April 1994 rating decision, and no additional service department records have since been associated with the record.  Consequently, the April 1994 rating decision is final.  38 U.S.C.A. § 7105(c) (West 1991) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993) [(2017)].

A previously denied claim can be reopened if new and material evidence is presented or secured.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  New evidence means existing evidence not previously submitted to agency decisionmakers.  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 United States Court of Appeals for Veterans Claims (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).

Since the April 1994 decision, the appellant has provided a copy of the Veteran's death certificate, VA treatment records, and her statements regarding the alleged cause of the Veteran's death, i.e., that his kidney cancer was caused by his exposure to herbicide agents.  All of these items were of record at the time of the previous final rating decision and were previously considered by the RO.  Therefore, such evidence is cumulative and redundant and, thus, not new and material.  The appellant has also submitted several pages of internet material from various sources addressing the correlation between Agent Orange and cancer, including reader comments from a cancer survivor's network, excerpts from the website of the American Cancer Society, and an article from U.S. News and World Report.  While this evidence is new, it is not material and thus insufficient to reopen the appellant's previously denied claim.  

In this regard, the reader comments are lay statements, mostly regarding how to obtain VA compensation for kidney cancer.  Despite repeated assertions that kidney cancer is due to Agent Orange exposure, there is no indication that any of the commenters possess the requisite medical background to provide a competent opinion on the relationship between herbicides and cancer development.  See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372   (Fed. Cir. 2007).   As such, the comments are not material.  

The 2011 U.S. News article, while captioned as "Agent Orange Linked to Kidney Cancer: Study" actually says nothing of the sort and concludes that an unnamed and uncited preliminary study not yet published or subjected to peer review had found that a fraction of kidney cancer patients examined at a VA medical center over two decades had been exposed to Agent Orange.  The only comment from the American Urological Association, where the results were discussed, was that "this data indicates that we may need to better determine whether exposure to these chemicals should be considered a risk factor for kidney cancer."  There is no suggestion that the Veteran's specific cancer or kidney cancer in general is caused by, or otherwise related to, herbicide agents, to include Agent Orange.  Furthermore, there is no citation to any published study suggestive of such a relationship that could be reviewed and assessed by a VA examiner.  The Board, therefore, finds this information is too equivocal, speculative, and preliminary to be material.

Finally, the abstracts from the American Cancer Society website (printed 2013) state that the group looks to certain "expert agencies" to determine whether Agent Orange or related compounds can cause cancer.  The website then notes that, since 1994, the federal government has directed the Institute of Medicine (IOM), part of the National Academy of Sciences, to issue reports every two years on the health effects of Agent Orange and similar herbicides.  The website goes on to highlight the findings of the IOM that there is inadequate/insufficient evidence to determine whether an association exists between Agent Orange and kidney cancer.  This suggests that the most expert research available has not found a link between kidney cancer and herbicide agents.  Thus, as such suggests that the cause of the Veteran's death is unrelated to his in-service herbicide exposure, such is not material to the appellant's claim.    

Therefore, the newly received evidence does not provide any data specific to the Veteran's case or any published findings suggesting a causal relationship between the Veteran's cancer and herbicide exposure.  VA is acutely aware of the possibility of a link between kidney cancer and herbicide exposure, which is why the IOM has been directed to periodically review any significant clinical or academic studies and evidence on the matter.  As such, the mere existence of a possible link between kidney cancer and herbicide exposure has been considered and is not new. 

Therefore, the Board finds that the evidence added to the record since the final April 1994 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death Consequently, new and material evidence sufficient to reopen the appellant's claim has not been received and, therefore, the claim is denied.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  


ORDER

New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for the cause of the Veteran's death is denied.


____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs