Citation Nr: 1802136 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-33 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim of service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death for purposes of dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served from June 1968 to June 1970. The Veteran died in April 2005. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Although the appellant's VA Form 9 (Appeal to the Board of Veterans' Appeals) initially requested a hearing before a Veteran's Law Judge, in July 2015, she submitted a statement indicating that she no longer wished to attend a hearing, and requested that her hearing, as scheduled, be cancelled. As such, the Board considers the hearing request to be withdrawn. FINDINGS OF FACT 1. New and material evidence has been submitted sufficient to reopen a previously denied and final claim of service connection for the cause of the Veteran's death. 2. The Veteran died in April 2005. His cause of death was renal cell carcinoma. 3. The Veteran had verified service in the Republic of Vietnam and VA has conceded herbicide exposure during active service. 4. It is at least as likely as not that the Veteran's renal cell carcinoma is etiologically linked to his conceded in-service herbicide exposure. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim of service connection for the cause of the Veteran's death is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The criteria for service connection for the cause of the Veteran's death, renal cell carcinoma, have been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in March 2013. Further, to the extent that the Board is granting the claims, as addressed below, any failure on the part of VA in complying with the duty to notify and assist would constitute harmless error. New and Material Evidence If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014). Therefore, even though the RO de facto reopened the claim in its October 2011 rating decision, the Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue prior to adjudicating the underlying claim. Under 38 C.F.R. § 3.104(a), a decision of the rating agency shall be final and binding . . . as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. § 20.1103 (2017). A rating decision becomes final one year after its issuance, unless a Notice of Disagreement is filed. 38 C.F.R. § 20.302(a) (2017). If a Notice of Disagreement is filed, and a statement of the case is subsequently issued, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. § 20.302(b). In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156(a) (2017). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). The appellant seeks to reopen a claim of service connection for the cause of the Veteran's death, renal cell carcinoma. The Board finds that the claim should be reopened. The appellant's claim of service connection for the cause of the Veteran's death was initially denied in an October 2005 rating decision. That claim was denied because there was no evidence of treatment for renal cell cancer in his service treatment records, and renal cell carcinoma was not a disability for which presumptive service connection may be granted secondary to herbicide exposure. The appellant did not appeal that denial, and it became final one year later. In support of her claim, the appellant has submitted several medical records and opinions. Particularly, she submitted an October 2013 letter from a Dr. S.A., the Veteran's treating physician which stated that "Agent Orange may have been the causative agent of renal cell carcinoma." Further, the appellant's attorney has submitted a November 2017 letter from a Dr. M.K., which also opines in favor of a causal nexus between the Veteran's herbicide exposure and renal cell carcinoma. This evidence is new in that it was not of record at the time of the 2005 denial. It is material because it provides a more complete picture of the circumstances surrounding the cause of the Veteran's death. See Hodge, supra. As such, the Board finds that new and material evidence has been submitted, and the claim should be reopened. Service Connection - Cause of Death The appellant seeks service connection for the cause of the Veteran's death, for purposes of death and indemnity compensation (DIC) benefits. Pursuant to 38 U.S.C § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C § 1310 (2012); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). The Veteran died in April 2005. His sole cause of death was given as renal cell carcinoma. The appellant argues that the Veteran's renal cell carcinoma was the result of herbicide exposure during active service. The Veteran has confirmed service in the Republic of Vietnam, and therefore VA has conceded herbicide exposure. At the outset, the Board observes that if a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases shall be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313 (2017). However, renal cell carcinoma is not a disease for which presumptive service connection is granted. While this does not preclude a grant of service connection on a direct basis, it does require the appellant to provide a causal nexus between renal cell carcinoma and herbicide exposure. In support of the claim, the appellant has submitted multiple medical studies, as well as several letters from the Veteran's treating physician, Dr. S.A., particularly, an October 2013 letter in which the private physician stated that the Veteran's herbicide exposure may have been the causative agent of renal cell carcinoma, and referenced a study conducted by the American Urologic Association in 2011 which found clear cell carcinomas occur more often in people with Agent Orange exposure. Also in support of the claim, the appellant submitted a medical opinion by a Dr. M.K., dated November 9, 2017. In that letter, the private physician discussed the Veteran's medical records and health history, as well as the Veteran's herbicide exposure and other risk factors, and multiple medical studies that address any potential link between renal cell carcinoma and herbicides. He then concluded that it is at least as likely as not that the Veteran's herbicide exposure caused on increased his risk for renal cell carcinoma. The physician then closed with a list of medical references and treatises used in rendering his opinion. Ultimately, the Board finds the November 2017 medical opinion to be persuasive. That opinion was rendered by a medical doctor, who considered the Veterans' complete medical history as well as the known medical treatise evidence and principles, and concluded that there is at least as likely as not an etiological link between the two. As such, the Board finds this opinion to be both competent and credible. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The Board has reviewed the entire record but found no evidence that would contradict Dr. M.K.'s opinion. In sum, the Board finds that the evidence of record shows that the Veteran died from renal cell carcinoma, was exposed to herbicides during active service, and his renal cell carcinoma is at least as likely as not related to that herbicide exposure. As such, service connection should be granted. ORDER New and material evidence having been submitted, the previously denied and final claim of service connection for the cause of the Veteran's death is reopened. Service connection for the cause of the Veteran's death, for purposes of DIC benefits, is granted. ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs