Citation Nr: 18145530 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-35 490A DATE: October 30, 2018 ORDER VA has received new and material evidence for a claim of entitlement to service connection for the cause of the Veteran's death. To this extent only, the appeal is granted. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT 1. The Veteran died in July 2003. VA denied the Appellant's claim for service connection for the cause of the Veteran's death in a November 2003 administrative decision. The Appellant did not appeal this denial, nor did she submit new and material evidence within one year of it. Therefore, it became final. 2. The Appellant claimed service connection for the cause of the Veteran’s death again in September 2015. She submitted new and material evidence with this claim. CONCLUSIONS OF LAW 1. The November 2003 administrative decision denying the claim for service connection for the cause of the Veteran’s death is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence since that decision has been submitted to allow the reopening of this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to December 1971. The Appellant is the Veteran's widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Appellant's attorney withdrew representation in May 2017. The Appellant appears pro se. Issue: Whether VA has received new and material evidence to reopen a claim of entitlement to service connection for the cause of the Veteran’s death New and Material Evidence VA denied the Appellant’s claim for service connection for the cause of the Veteran’s death in a November 2003 administrative decision. The Appellant did not appeal this denial, nor did she submit new and material evidence within one year of it. Therefore, it became final. Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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). At the time of the November 2003 denial, the record consisted, in relevant part, of the Veteran's death certificate. Subsequently, the Appellant submitted hospital records from the day of his death. This evidence is new. This evidence is also material because it helps substantiate the Appellant's claim, and it relates to a reason VA previously denied his claim. Reopening of the Veteran’s the claim for service connection for the cause of the Veteran's death based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). REASONS FOR REMAND The Appellant contends that the Veteran's service in Vietnam, which VA confirmed in the December 2015 rating decision on appeal, exposed him to "herbicide agents" which in turn caused his death. VA had not service connected any disabilities for the Veteran when he passed, nor did he have any pending disability claims. He died of sudden cardiac arrest. Therefore, for the Appellant to prevail, the Board needs to determine 1) if service connection is warranted for a cardiac disorder, and 2) if this cardiac disorder caused the Veteran's death. For the first question, the undersigned notes VA presumes the Veteran, by virtue of his Vietnam service, which included a Purple Heart and Combat Infantry Badge, was exposed to "herbicide agents," as defined in 38 C.F.R. § 3.307(a)(6). Additionally, the undersigned notes that VA presumes that exposure to "herbicide agents" causes "ischemic heart disease," as defined in and pursuant to 38 C.F.R. § 3.309(e). The definition of "ischemic heart disease" is critical to this case. VA defines it as: "including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina" The undersigned takes judicial notice that, as cited by numerous medical institutions including the Mayo Clinic, "most cases of sudden cardiac arrest occur in people who have coronary artery disease." Given this, the definition of "ischemic heart disease," and the fact that the Veteran died of sudden cardiac arrest, remand is warranted for a medical opinion on the relationship, if any, between "ischemic heart disease" and the Veteran's sudden cardiac arrest. The matter is REMANDED for the following action: 1. Notify the Appellant that she should submit any medical records, if they exist, showing that the Veteran was treated for ischemic heart disease, to include myocardial infarctions or coronary artery disease. Allow her 60 days from the date of this Remand to submit these records. 2. After the 60 days have passed, send the Veteran's file to a cardiologist to answer the following questions: a) Is there any evidence that the Veteran had an acute, myocardial infarction prior to his death? Why or why not? b) Is there any evidence that the Veteran had a subacute, myocardial infarction prior to his death? Why or why not? c) Is there any evidence that the Veteran had an old myocardial infarction prior to his death? Why or why not? d) Is there any evidence that the Veteran had coronary artery disease prior to his death? Why or why not? e) If there is no evidence that the Veteran had coronary artery disease prior to his death, is it at least as likely as not that undiagnosed coronary artery disease caused his sudden cardiac arrest? Why or why not? In answering this question, please address the Mayo Clinic's widely accepted medical finding that "most cases of sudden cardiac arrest occur in people who have coronary artery disease," as seen on its website. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel