Citation Nr: 1801987 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-00 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. Whether new and material evidence has been received to reopen a claim of entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1961 to February 1981, including service in the Republic of Vietnam. He was the recipient of the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal, the Good Conduct Medal on six occasions, the Vietnam Service Medal for three campaigns, and the Vietnam Cross of Gallantry with palm. He died in July 2004. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was subsequently transferred to the RO in St. Paul, Minnesota. The Board remanded this matter in May 2013 and September 2017. A Supplemental Statement of the Case (SSOC) was issued in September 2017. A review of the record shows that the RO has substantially complied with all remand instructions. The appellant and her representative have not contended otherwise. Stegall v. West, 11 Vet. App. 268 (1998). In September 2017, the Board found that the appellant is the Veteran's surviving spouse for VA purposes, but observed that whether the appellant is eligible for Dependency and Indemnity Compensation is a separate matter. 38 C.F.R. § 3.54(c). The Board observes that the appellant cancelled her March 2013 Board hearing in February 2013 and has not requested that such be rescheduled. Therefore, her request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. In a March 2005 rating decision, the RO denied the appellant's claims of service connection for the cause of the Veteran's death and entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. The appellant was duly notified of the RO's determination and her appellate rights in April 2005, but she did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the final March 2005 rating decision denying service connection for the cause of the Veteran's death relates to an unestablished fact necessary to substantiate the claim, and presuming its credibility, raises a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran's death. 3. Evidence received since the final March 2005 rating decision denying entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 relates to an unestablished fact necessary to substantiate the claim, and presuming its credibility, raises a reasonable possibility of substantiating the claim of entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. 4. From July 13, 2003, the Veteran and the appellant agreed to be married, held themselves out to others as married, and lived together as husband and wife until the Veteran's July 2004 death. 5. The Veteran served in the Republic of Vietnam during the Vietnam era. 6. The Veteran was diagnosed as having esophageal carcinoma in June 2003. 7. The Veteran died in July 2004. The cause of his death was esophageal carcinoma. 8. The Veteran's fatal esophageal carcinoma did not manifest during service or to a compensable degree within one year of his separation, and the disorder was not related to his active service or any incident therein, to include presumed exposure to Agent Orange, or to any service-connected disability. 9. A service-connected disability did not cause or contribute materially or substantially to the Veteran's death; combine with another disorder to cause his death; or aid or lend assistance to his death. 10. At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability that was rated totally disabling for a period of 10 years immediately preceding his death. CONCLUSIONS OF LAW 1. The March 2005 rating decision denying service connection for cause of death and entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for cause of death. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to warrant reopening of the previously denied claim of entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for consideration of the appellant as the surviving spouse of the Veteran for purposes of VA death benefits are met. 38 U.S.C. §§ 101, 1304, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.54 (2017). 5. The requirements for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). 6. The criteria for entitlement to Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) A December 2009 Formal Finding on the Unavailability of Treatment Records is associated with the claims file. The appellant was notified of such unavailability in January 2010. In a statement received in January 2010, the appellant suggested that such records could not be found because a different case number was printed on a letter she received. Based on the record and the unambiguous response from the service department, however, it appears that all possible avenues have been explored and that further attempts to obtain the Veteran's service treatment records would be futile. Neither the appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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. Id. at 118. C. Surviving Spouse for purposes of VA Death Benefits Benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. A "surviving spouse" is a person who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.50, 3.53. For DIC and death pension purposes, however, the marriage must have existed for more than one year prior to the veteran's death. 38 C.F.R. § 3.54. D. Service Connection for Cause of Death Dependency and indemnity compensation (DIC) is awarded to the veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such 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 is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). E. DIC under the provisions of 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318, DIC benefits are also payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service connected, if such veteran died not as the result of his own willful misconduct and was, at the time of his or her death, either in receipt of or entitled to receive compensation for service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. III. Analysis A. Whether New and Material Evidence has been Received In a March 2005 rating decision, the RO denied service connection for cause of death and entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 because, in part, the appellant did not meet any of the criteria to be considered a surviving spouse for purposes of DIC or death pension. The rating decision also explained that there was no positive medical evidence in favor of the Veteran's death from esophageal carcinoma being related to his active service, to include exposure to herbicide agents and that the Veteran was not a former Prisoner of War (POW) and he was not rated as totally disabled prior to his death. The appellant was informed of this decision and her appellate rights in an April 2005 letter, but she did not appeal within the applicable time period, nor was new and material evidence received within one year of the letter. Thus, the determination is final. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in March 2005. That evidence includes the September 2017 Board decision that the appellant is the Veteran's surviving spouse for VA purposes. This evidence is new, as it was not before the RO at the time of its March 2005 rating decision. Further, presuming its credibility, it is material, as it relates to an unestablished fact necessary to substantiate the claim. The claims were denied, in part, because the appellant did not meet any of the criteria to be considered a surviving spouse for purposes of DIC. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claims of service connection for cause of death and entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. B. Surviving Spouse for purposes of 38 C.F.R. § 3.54 As noted above, the September 2017 Board decision determined that the appellant was the Veteran's surviving spouse under 38 C.F.R. § 3.50(b), and explicitly declined to determine whether the appellant is entitled to DIC benefits as the surviving spouse because such was a separate matter. 38 C.F.R. § 3.54(c). Whether the appellant meets the criteria in 38 C.F.R. § 3.54(c) is a threshold question as to the issues of service connection for cause of death and entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. In a Statement of Marital Relationship received in August 2014, the appellant reported that she began living as husband and wife with the Veteran in the State of Texas on October 26, 2001. She stated that they lived together continuously from that date until the Veteran's death. She stated that they agreed that they would have a husband and wife relationship when they began living together in Texas. She sometimes used the Veteran's last name after they began living together. The appellant stated that they did not have children together. The appellant stated that she had previously been married, but such marriage ended in divorce in May 1995. She reported that the Veteran had been married to another woman, D.E.P., from March 1967 to July 2003, when such marriage was terminated by the D.E.P.'s death. It was noted that the Veteran's prior marriage had begun in Germany and ended in the State of California. The appellant stated that, after 11 years of cohabiting with the Veteran in California, she and the Veteran moved to Texas in 2001. They bought a home together, which was in both of their names. They presented themselves as husband and wife. They both wore wedding bands. The appellant stated that she was named the Veteran's beneficiary on his life insurance plan from his occupation. She stated that VA identified her as the Veteran's "significant other" and she held power of attorney for health care. The appellant and the Veteran had joint checking accounts. She stated that everyone assumed they were married because they acted as if they were. She reported that they were eventually legally married on December[REDACTED], 2003. A Statement in Support Regarding Marriage was received from F.J.H., the appellant's daughter, in August 2014. She stated that she was the child of both the Veteran and the appellant. She stated that she had known the Veteran for 14 years and had known the appellant since her birth. She stated that the Veteran and the appellant were generally known as married and neither ever denied being married. She stated that she considered the Veteran and appellant to be husband and wife because they acted married and raised her and other children. She stated that she observed the Veteran and the appellant refer to each other as husband and wife. She stated that the Veteran and the appellant lived together from 1991 until the Veteran died in 2004. She noted that the Veteran had been married to D.E.P., but such marriage ended in July 2003, when that woman died. A copy of a 2002 federal income tax return (Form 1040) is of record. The Veteran and the appellant filed a joint return and the filing status chosen was "married filing jointly." A copy of D.E.P.'s death certificate is of record. She died in July 2003. Her last name was the same as the Veteran's; and the certificate notes that she was married to the Veteran. The death certificate lists the Veteran as her surviving spouse. The Veteran and the appellant's marriage certificate states that they were married on December [REDACTED], 2003, and such was filed for record on December [REDACTED], 2003. As noted by the Board in September 2017, the Veteran and the appellant were legally married in December 2003, approximately seven months prior to the Veteran's death. This marriage was proper under the law of Texas, where the Veteran and the appellant resided. It is not of sufficient duration to qualify the appellant for the benefits she seeks, however. The appellant has thus argued that, prior to the ceremonial marriage in December 2003, she and the Veteran had established a common law marriage, and the duration requirement was in fact met. The appellant and her daughter have submitted statements which demonstrate the elements of a common law marriage in Texas. The couple consistently introduced themselves as husband and wife since they began cohabitation in Texas in 2001, although the Veteran was still married to another woman at this time. However, such consistency in introducing themselves as husband and wife appears to have continued after the Veteran's first spouse died in July 2003. This evidences not only that they were publicly holding themselves out as married, but that they also agreed to be married. Further, they lived together continually from the date of D.E.P.'s death in July 2003 until the Veteran's death in July 2004. The Board therefore finds that the appellant and Veteran had established a common law marriage under the laws of Texas as of the day after D.E.P. died. Accordingly, because this establishes a date of marriage one year prior to the Veteran's death, recognition of the appellant as the Veteran's surviving spouse for purposes of eligibility for payment of VA benefits, to include Dependency and Indemnity Compensation (DIC) and pension is warranted. Thus, entitlement to service connection for cause of death and entitlement to DIC under 38 U.S.C. § 1318 will be considered on the merits. C. Entitlement to service connection for cause of death After carefully reviewing the available evidence, however, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. The Veteran's death certificate states that he died in July 2004 from esophageal carcinoma. The approximate interval between onset and death was one year. There were no other causes of death. There is no indication, nor has the appellant contended, that the Veteran developed esophageal cancer during active duty or within one year following separation. Likewise, there is no indication, nor does the appellant contend, that the Veteran's death was caused or hastened by anything but esophageal cancer. The post-service record on appeal shows that the Veteran was first diagnosed as having esophageal carcinoma in June 2003, which was more than 20 years after his separation from service. A May 2004 clinical note states that the appellant continued to smoke two packs of cigarettes per day. There is also no evidence of record suggesting that the Veteran had esophageal carcinoma in service, within the first post-service year, or for many years thereafter. In addition, the record does not establish that the Veteran's esophageal carcinoma was causally related to or aggravated by any service-connected disability. Finally, although the Veteran is legally entitled to a presumption of herbicide agent exposure as he served in the Republic of Vietnam, the enumerated diseases which are deemed to be associated with herbicide agent exposure do not include esophageal carcinoma. See 38 C.F.R. 3.309(e). VA's Secretary has determined that there is no positive association between exposure to herbicide agents such as Agent Orange and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). The appellant submitted multiple prior Board decisions in which entitlement to service connection and entitlement to service connection for cause of death was granted for similar disorders, such as adenocarcinoma of the esophagus, due to exposure to Agent Orange. Board decisions, however, are not precedential, and "previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303 . "Each case presented to the Board will be decided on the basis of the individual facts of the case." Id. Nonetheless, the Board has reviewed such prior Board decisions and observes that they included positive medical opinions regarding links between those veterans' active service and their carcinoma, based on the specific facts of each case. In the case at hand, however, there is no competent medical evidence in favor of a link between the Veteran's active service, including presumed exposure to Agent Orange, and his fatal esophageal carcinoma. The Board notes that the record on appeal contains no other probative evidence suggesting that a service-connected disability, such as diabetes mellitus, caused, contributed to, or hastened the Veteran's death. Regardless of the availability of service treatment records, there is no competent medical evidence that esophageal carcinoma developed prior to 2003. There is likewise no competent medical evidence that any other medical condition caused or contributed to the Veteran's death. The record establishes that the Veteran was first diagnosed with esophageal carcinoma in June 2003. The Board also observes that the Veteran reported continuing to smoke two packs of cigarettes per day in 2004. The Board has considered the appellant's lay contentions. She is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of the Veteran's esophageal carcinoma because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. In summary, the Board finds that the available record does not show that a service-connected disability caused, contributed to, or hastened the Veteran's death. Although the Board recognizes the Veteran's honorable service on behalf of his country and is sympathetic with the appellant's loss of her husband, in light of the evidence discussed above, there is no basis upon which to award service connection for the cause of the Veteran's death. To the extent that the appellant argues that the claims should be granted on the basis of equity, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. See OPM v. Richmond, 496 U.S. 414, 434 (1990). As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). D. Entitlement to DIC under 38 U.S.C. § 1318 As discussed above, DIC benefits under 38 U.S.C. § 1318 are payable to the surviving spouse of a deceased veteran if certain criteria are met. However, at the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability rated totally disabling. In fact, he was never in receipt of, or entitled to receive, a total disability rating at any time. Further, he was not a former prisoner of war. The appellant and her representative do not contend otherwise. Under the undisputed facts in this case, there is no legal basis upon which to award the benefit sought, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). To the extent that the appellant argues that the claim should be granted on the basis of equity, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. See OPM v. Richmond, 496 U.S. 414, 434 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for cause of death is reopened. New and material evidence having been received, the claim of entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is reopened. Entitlement to service connection for cause of death is denied. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs