Citation Nr: 18141187 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-04 029 DATE: October 9, 2018 ORDER New and material evidence having been presented, the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death is reopened. Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. A December 1999 rating decision denied entitlement to service connection for the cause of the Veteran’s death. The Appellant did not perfect an appeal. 2. Additional evidence has been received since the December 1999 rating decision that relates to an unestablished fact necessary to substantiate the previously denied claim of entitlement to service connection for the cause of the Veteran’s death. 3. The Veteran’s immediate cause of death was pancreatic cancer. 4. The evidence shows that the Veteran’s service-connected posttraumatic stress disorder (PTSD) aggravated his alcohol abuse. 5. The Veteran’s PTSD-induced alcohol abuse materially and substantially contributed to his pancreatic cancer. CONCLUSIONS OF LAW 1. The December 1999 rating decision that denied entitlement to service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received since the December 1999 rating decision that denied entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156. 3. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1969. He passed away on November 19, 1999, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Milwaukee Pension Management Center in Milwaukee, Wisconsin. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the AOJ, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A December 1999 rating decision denied service connection for the cause of the Veteran’s death because there was no evidence linking the Veteran’s pancreatic cancer to his military service. The relevant evidence of record at the time included the Veteran’s service treatment records and death certificate. See December 1999 Rating Decision. The Appellant was notified of the December 1999 rating decision and of her appellate rights by letter dated January 12, 2000. She initiated an appeal, but did not perfect her appeal by submitting a substantive appeal following the issuance of a March 2000 Statement of the Case. As such, the December 1999 rating decision is final in regard to the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In September 2011, the Appellant filed to reopen her claim of entitlement to service connection for the cause of death of the Veteran. Since the time of the December 1999 rating decision, additional relevant evidence, to include a private medical opinion, has been added to the claims file. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for the cause of the Veteran’s death is reopened. Entitlement to service connection for cause of death Service connection for the cause of the Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principle, or a contributory, cause of the Veteran’s death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially, and combined to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Here, the Veteran’s death certificate shows he died in November 1999 due to pancreatic cancer. See December 1999 Death Certificate. At the time of his death, the Veteran was service-connected for PTSD rated as 100 percent disabling and a scar. See August 1995 Rating Code Sheet. The Appellant asserts, in pertinent part, that the Veteran’s death was caused or substantially contributed to by his service-connected PTSD. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). In support of her claim, the Appellant submitted a May 2017 private medical opinion. The physician concluded, following a review of the claims file, that the Veteran’s service-connected PTSD aggravated his alcohol abuse following his separation from active duty, and that alcohol abuse is a risk factor for developing pancreatic cancer. See 38 C.F.R. § 3.310. The physician opined that the Veteran’s PTSD-related alcohol abuse contributed to his development of pancreatic cancer. The physician rationalized that the Veteran did not have any other risk factors for the development of pancreatic cancer, apart from alcohol abuse and exposure to Agent Orange. See May 2017 Deaconess Cancer Services Statement. The Veteran’s PTSD-induced alcohol abuse is well documented. See April 1991 Wife Statement (noting the veteran quit drinking when they married); Undated Veteran Statement received June 13, 1991 (stating “I was an alcoholic”); October 1992 VA General Medical Examination (recording a history of alcohol abuse in the 1960s and 1970s); October 1996 Mental Health Note (recording the Veteran drank heavily post-service as a way to anesthetize himself from memories of combat). The Board notes that there is a negative opinion of record in the form of a November 2015 VA opinion. However, the November 2015 opinion is limited to whether the Veteran’s PTSD or scar materially or substantially contributed to his death, and did not address the Veteran’s PTSD-induced alcohol abuse. See November 2015 Compensation and Pension Examination Note. In sum, the probative evidence of record shows that the Veteran’s PTSD-induced alcohol abuse contributed substantially and materially to his development of pancreatic cancer. Accordingly, service connection for the cause of the Veteran’s death is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel