Citation Nr: 18144872 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-03 865 DATE: October 25, 2018 ORDER As new and material evidence has not been received, the claim for entitlement to service connection for the cause of the Veteran’s death on a basis other than ischemic heart disease (IHD) is denied. Entitlement to service connection for the Veteran’s cause of death based on ischemic heart disease (IHD) is denied. FINDINGS OF FACT 1. In a July 1989 decision, the Board denied service connection for the Veteran’s cause of death. 2. The evidence received since the July 1989 Board decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim for entitlement to service connection for the Veteran’s cause of death. 3. The Veteran served in the Republic of Vietnam from September 1966 to September 1967 and is presumed to have been exposed to herbicide agents. 4. The evidence does not establish the presence of ischemic heart disease at or prior to the Veteran’s death. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for the Veteran’s cause of death on a basis other than IHD. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2018). 2. The criteria for service connection for the cause of the Veteran’s death due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.22, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312, 3.313 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1969. He received a Purple Heart medal during his service in Vietnam. The Veteran died in January 1986. The appellant in this matter is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2017, the appellant appeared with her representative for a videoconference hearing before the undersigned. A transcript of the hearing is of record. This matter was remanded by the Board in November 2017 for additional development. Such development was completed and the matter has returned to the Board for appellate consideration. The Board notes that subsequent to the Board’s November 2017 remand, the RO issued a supplemental statement of the case (SSOC) which listed the issue as entitlement to service connection for the cause of death, addressing whether the Veteran suffered from ischemic heart disease. The issue regarding new and material evidence was not listed. The Board finds the SSOC adequate because, as explained below, the new evidence submitted was not pertinent to the issue of entitlement to service connection for the Veteran’s cause of death on a basis other than IHD. 38 U.S.C. § 19.31. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to notify was satisfied in a letter dated in April 2013. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified, and available evidence has been obtained, including a medical opinion as directed by the Board’s November 2017 remand. The appellant has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. New and material evidence A rating action from which an appeal is not perfected becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement (NOD) in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. In July 1989, the Board denied the appellant’s claim of service connection for cause of death, indicating that fatty changes of the liver and hypertensive cardiovascular disease, which were listed as the Veteran’s causes of death on his death certificate, were not incurred in or aggravated by military service. The Board also determined that the Veteran’s service connected disabilities, consisting of residuals of a gunshot wound to the gluteal area and an abdominal scar, did not cause or contribute substantially or materially to his death. The pertinent evidence of record at the time of the July 1989 decision consisted of the Veteran’s STRs, MPRs, post-service medical treatment records, death certificate, autopsy report, police reports, and the appellant’s testimony from an April 1987 hearing. In December 2011, the Appellant, through her representative, filed a claim to reopen the case based on the addition of ischemic heart disease to the presumptive herbicide-related diseases under 38 C.F.R. § 3.309(e). Since the July 1989 Board decision, the only new evidence submitted has been testimony from the Appellant’s March 2017 hearing and a medical opinion. The new evidence provided from these sources primarily addressed whether the Veteran had IHD, relating to the second issue on appeal. The hearing testimony also indicated that the Veteran was a heavy alcoholic, and he visited a VA medical center for treatment on one occasion for his heart condition but refused further treatment or medication from the facility. The newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the cause of death claim. In particular, there is no newly received evidence linking the Veteran’s diseases, as provided in the death certificate and autopsy report, to the Veteran’s military service. The evidence does not otherwise substantiate any other element of service connection that was not already substantiated at the time of the prior final decision. Accordingly, the evidence received since the denial of the claim in July 1989 is not new and material, and as such, reopening the claim for service connection for the Veteran’s cause of death on a basis other than IHD is not warranted. 2. Entitlement to service connection for the Veteran’s cause of death based on ischemic heart disease (IHD) A surviving spouse of a qualified Veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal or contributory cause of death. A service-connected disability is considered 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. A service-connected disability is considered the contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. Id. In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312 (c)(2). 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 causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange (AO), unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6)(iii). Certain listed medical conditions may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309 (e). The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.303. Effective August 31, 2010, ischemic heart disease was added to the list of disorders for which service connection may be granted on a presumptive basis for veterans exposed to Agent Orange during service. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease. The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. See 38 C.F.R. § 3.309 (e), Note 3; 75 Fed. Reg. 53202. The Appellant contends that the Veteran’s cause of death due to his non-service-connected heart disease is subject to the presumption of service connection based on exposure to herbicide agents during service in Vietnam. Specifically, the Appellant contends that the Veteran had IHD as a result of herbicide exposure, and IHD was a cause of the Veteran’s death. The Veteran’s death certificate indicates that his primary cause of death was liver failure due to chronic alcohol abuse. It also notes hypertensive cardiovascular disease as a contributory cause of death. The Veteran’s autopsy report indicates the Veteran’s cause of death was fatty metamorphosis of the liver due to chronic ethanol abuse. The findings reported by the medical examiner also included moderate cardiomegaly, mild occlusive coronary atherosclerosis, arteriolonephrosclerosis, chronic gastritis, bilateral hemorrhagic edema of the lungs, and pulmonary edema. Service records show the Veteran served in the Republic of Vietnam from September 1966 to September 1967 and received the Purple Heart and Combat Infantry Badge. During the March 2017 hearing, the Appellant’s representative made the argument that the evidence relating to the Veteran’s heart diseases established the presence of ischemic heart disease. In August 2018, in accordance with the Board’s November 2017 remand directives, a medical opinion was provided addressing whether the Veteran had IHD at the time of his death, and if he was found to have IHD, whether it was at least as likely as not that ischemic heart disease caused or contributed substantially or materially to his death. The VA examiner indicated that the Veteran did not have IHD at the time of his death. Moreover, the examiner indicated that while non-occlusive coronary disease and hypertensive cardiovascular disease were reported in the Veteran’s death certificate and autopsy report, these diseases are not IHD. Although exposure to herbicide agents has been conceded due to the Veteran’s service in the Republic of Vietnam, non-occlusive coronary disease and hypertensive cardiovascular disease are not presumptive disabilities listed under 38 C.F.R. § 3.309(e) with respect to exposure to herbicide agents. Moreover, although a presumption of service connection is warranted for IHD, the clinical evidence in this case establishes that the cause of the Veteran’s death was not due to IHD. Thus, the presumptive regulations do not provide a basis upon which to grant the claim. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). It is not necessary to address direct service connection in this case because the evidence has established that the Veteran did not have IHD. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the non-service connected diseases and service-connected disabilities that were present at the time of the Veteran’s death were adjudicated in the Board’s July 1989 decision, which has not been reopened. Thus, as the Veteran did not have IHD at the time of his death, entitlement to service connection for the cause of the Veteran’s death must be denied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.312. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel