Citation Nr: 18143424 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 16-35 173A DATE: October 23, 2018 ORDER The application to reopen the claim for service connection for the cause of the Veteran’s death is granted. Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. In an unappealed October 2010 rating decision, the RO denied the claim for service connection for the cause of the Veteran’s death. 2. Evidence received since the October 2010 rating decision is new and material and raises a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran’s death. 3. The Veteran served in the Republic of Vietnam during the Vietnam War era. 4. The preponderance of the evidence reflects the Veteran’s acute monocytic leukemia was related to his military service. CONCLUSIONS OF LAW 1. The October 2010 rating decision denying the claim of service connection for cause of the Veteran’s death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the last final denial of service connection for the cause of the Veteran’s death, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for entitlement to service connection for cause of death are met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.312(a) (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to October 1974. He died in December 2009. His surviving spouse is the Appellant in this matter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA). The Board notes that the Veteran’s representative implied that there is a second issue before the Board for entitlement to dependency and indemnity compensation (DIC). See May 2017 correspondence. The record reflects that only one theory of entitlement to DIC benefits—i.e., entitlement to service connection for cause of death has been adjudicated by the Agency of Original Jurisdiction (AOJ). Nonetheless, because compensation pursuant to 38 U.S.C. § 1310 is being granted, other theories of entitlement to DIC benefits are rendered moot. Therefore, the Board will take no additional action at this time. New and Material -Laws and Analysis The Appellant was initially denied service connection for cause of the Veteran’s death in an October 2010 rating decision because there was no indication that the Veteran’s death was related to a service-connected disability. The Appellant was notified of the rating decision, but did not appeal the decision. As such, the October 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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) (2016). 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received subsequent to the October 2010 rating decision includes, in pertinent part, a May 2017 medical opinion from Dr. Skaggs, who opined that the Veteran’s death was related to in-service herbicide exposure or, alternatively, that the Veteran’s service-connected diabetes contributed to his death. The Board finds the May 2017 medical opinion to be new, as such evidence was not of record prior to the issuance of the October 2010 rating decision. Moreover, the evidence is material, as it relates to the unestablished element of a relationship between the Veteran’s service and his death. Accordingly, the Board finds that the newly added evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for the cause of the Veteran’s death. As such, the claim is reopened. Analysis for Cause of Death Claim The Appellant contends that the Veteran died as a result of exposure to herbicide agents in Vietnam, specifically Agent Orange. The record reflects the Veteran served in Vietnam during the Vietnam War era. During his lifetime, the Veteran was also granted service connection for type II diabetes mellitus based on his exposure to herbicide agents in service. See October 2007 rating decision. The Veteran died from acute monocytic leukemia (AML) in December 2009. See Certificate of Death. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312 (c)(1). 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. Id. 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. Id. 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). AML, the Veteran’s fatal disability, is not a presumptive disease associated with exposure to herbicide agents pursuant to 38 C.F.R. §§ 3.307, 3.309. However, the Appellant submitted a private opinion by Dr. H. Skaggs, MD, who conducted a review of the Veteran’s claim file. After considering the Veteran’s specific medical history and discussing medical research, Dr. Skaggs indicated that tetrachlorodibenzodioxin (TCDD) was one of the most potent elements of Agent Orange, which resulted in an increase in the occurrence of lung, prostate, and colon cancer. Dr. Skaggs also noted that other research showed that, because leukemias arose in the stem and progenitor cells of the bone marrow, (which were damaged by benzene), there was a “biological plausible basis for suggesting benzene as a causal factor for acute monocytic leukemia.” Further, Dr. Skaggs noted that research included a link between diabetes and AML. In this regard, diabetes was typically a pre-existing condition that could be a marker of vulnerability as diabetes had been associate with increased cancer incidents and higher mortality rate among people with AML. For these reasons, Dr. Skaggs opined that the Veteran’s herbicide exposure in Vietnam contributed substantially and materially to the development of AML and ultimately, to his death. Further, it was opined that the Veteran’s service-connected diabetes contributed materially and substantially to his death as it made the Veteran more vulnerable to the effects of leukemia and weakened his ability to fight the disease. The Board notes that VA obtained a medical opinion in July 2016; however, the examiner did not address the effects, if any, of the Veteran’s in-service herbicide exposure to his resulting death due to AML. As such, the Board finds that there are no contradictory opinions of record as it pertains to this determination. As a result, the evidence establishes that the Veteran’s cause of death was related to his military service, and service connection is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel