Citation Nr: 1803899	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-30 550	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death.  

2.  Entitlement to service connection for the cause of the Veteran's death. 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Robinson, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Air Force from December 1951 to December 1971.  The appellant is his surviving spouse.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.
 
In November 2016, the appellant testified at a hearing before the undersigned Veterans Law Judge of the Board.  A transcript of the hearing is of record. 

The issue of entitlement to service connection for cause of death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

An unappealed October 2008 rating decision denied the appellant service connection for cause of death.  Evidence received since the October 2008 denial includes evidence not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim.


CONCLUSION OF LAW

New and material evidence has been received; the claim of service connection for cause of death may be reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C. § 5108.  "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).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold.  Specifically, the Court views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Here, in an October 2008 rating decision, the RO denied the appellant's claim for service connection for the cause of the Veteran's death because there was no evidence of a nexus between the Veteran's documented causes of death and his service.  

Evidence received since October 2008 relates the Veteran's cause of death to claimed in-service exposure to ionizing radiation.  Reviewing this evidence, the Board finds that it is both new and material and raises a reasonable possibility of substantiating the claim.  Thus, the Board will grant the request to reopen the claim.


ORDER

The service connection claim for cause of death is reopened.


REMAND

The appellant believes that the Veteran was exposed to ionizing radiation during his 20 years of Air Force service loading weapons onto planes, and that this exposure caused his colon cancer and ultimately his death.  In her August 2014 substantive appeal, she stated that she believes that Veteran was exposed to radiation at Westover Air Force Base in July and August 1962.  During her November 2016 Board hearing, she testified that she is particularly concerned about a link to in-service radiation exposure because the Veteran had suffered from multiple cancers.  

This area of Veterans law is very technical and governed by several regulations that provide different avenues for claiming compensation.  These regulations also dictate specific steps VA must take to fully and fairly develop these claims.  In this case, VA is required to submit all available evidence of possible radiation exposure (including service treatment records and the DD 1141) to the Under Secretary for Health, who is responsible for preparing a dose estimate, to the extent feasible, based on available methods.  38 C.F.R. § 3.311 (a)(2)(iii) (requiring dose estimate to be obtained from the Under Secretary for Health for "other exposure claims").   Although the AOJ has already obtained valuable information, including the December 2013 Air Force and the May 2014 Defense Threat Reduction Agency and assessments, the pertinent regulation requires the completion of this additional step. 

In addition, the Veteran's complete service personnel records should be associated with the electronic claims file.  If no additional personnel records are available, this should be indicated in the file.  


Accordingly, the case is REMANDED for the following action:

1.  Invite the appellant to submit any additional evidence showing that the Veteran's death was caused by his service, to include any evidence suggesting a link between his job duties and the conditions listed on his death certificate (febrile neutropenia, colon cancer, and cardiopulmonary arrest).  

2.  Obtain any additional service personnel records for association with the electronic claims file.  

3.  Thereafter, continue to develop the appellant's claim of exposure to ionizing radiation as set forth in 38 C.F.R. § 3.311.  This should include obtaining a dose estimate from the Under Secretary for Health and then, if appropriate, forwarding the dose estimate to the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c).

4.  The AOJ should then review the record and arrange for any further development deemed necessary, to include arranging for a VA opinion.  Then, re-adjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.



The appellant has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs