Citation Nr: 18145556 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-31 251A DATE: October 29, 2018 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for the cause of the Veteran’s death. Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to VA death pension is denied. FINDINGS OF FACT 1. The RO denied service connection for the cause of the Veteran’s death in an August 2010 rating decision. The appellant did not appeal that decision, and it is final. 2. Some of the new evidence submitted after August 2010 in support of the appellant’s claim for service connection for the cause of the Veteran’s death is material. 3. The Veteran died in October 2009 of Stage 4 metastatic adenocarcinoma and the evidence is in equipoise to whether lung cancer was the primary cancer. 4. The appellant’s net income for the annual period beginning May 2012 exceeds the Maximum Annual Pension Rate (MAPR) allowable for a surviving spouse without any dependents. CONCLUSIONS OF LAW 1. The August 2010 rating decision that denied service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20.201, 20.302. 2. New and material evidence has been received, and the appellant’s claim for service connection for the cause of the Veteran’s death is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in the appellant’s favor, service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312). 4. For the annual period beginning in May 2012, the criteria for entitlement to payment of VA death pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1960 to February 1964 and from September 1966 to June 1974. The Veteran died in October 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 and October 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Although a video-conference hearing was scheduled before the Board in April 2018 as requested by the appellant, she cancelled it in. (See April 24, 2018 VA Form 21-4138 from appellant’s representative indicating appellant would not be attending the hearing.) Thus, the Board has met its due process obligation in providing the appellant with an opportunity for a hearing and may proceed with adjudicating her appeal without prejudice to her. Initially the Board notes that the August 2012 rating decision is not a final decision but is also on appeal as the October 2012 rating decision was merely a readjudication after the appellant’s additional statement submitted that month regarding her claim, instead of a new claim. Furthermore, the November 2012 Notice of Disagreement was clearly timely as to the August 2012 rating decision and it did not specifically identify only the October 2012 rating decision as the decision the appellant was appealing. Thus, it should be read broadly to include any decision within the one-year prior to its submission. Therefore, the Board finds that the only prior final decision is the August 2010 rating decision that initially denied the appellant’s claim for service connection for the cause of the Veteran’s death. The Board finds that new and material evidence, including additional lay statements, has been received to reopen the August 2010 denial of service connection for the cause of the Veteran’s death. 1. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran died as a result of exposure to Agent Orange during his service in Vietnam and, therefore, she is entitled to death benefits. Dependency and indemnity compensation is payable to a surviving spouse, child, or parent because of a service-connected death. 38 C.F.R. § 3.5. Service connection may be established for the cause of a Veteran’s death when a service-connected disability “was either the principal or a contributory cause of death.” 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, “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 must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran’s death may be demonstrated by showing that the Veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. At the time of the Veteran’s death, he was service-connected for multiple musculoskeletal disabilities. However, the appellant claims that the Veteran had symptoms of Agent Orange exposure from when he served in Vietnam and this is what he died of. Therefore, her contention is not that he died of an already service-connected disability or disabilities, but that service connection should be established for the disability that caused the Veteran’s death, which was related to exposure to herbicide agents during his service in the Republic of Vietnam. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). Diseases associated with such exposure and which are subject to presumptive service connection are listed in 38 C.F.R. § 3.309(e). In the present case, the National Personnel Records Center confirmed the Veteran served in the Republic of Vietnam from May 1965 to May 1966 and March 1967 to March 1968. Therefore, he is presumed to have been exposed to herbicide agents during such service. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s death certificate shows that he died in October 2009 of cardiopulmonary arrest as a result of metastatic adenocarcinoma of the pancreas. However, a review of the VA treatment records surrounding the diagnosis of his final illness from May to August of 2009 shows the Veteran was diagnosed to have Stage 4 metastatic adenocarcinoma and there was a question as to its primary source – whether it was from his lung or his pancreas. In 38 C.F.R. § 3.309(e), respiratory cancers, to include those of the lung, are listed as an enumerated disease that has been found to be associated with exposure to herbicide agents and is, therefore, subject to presumptive service connection. However, in contrast, the VA has determined that a presumption of service connection based upon such exposure is not warranted for cancers of the digestive organs, which includes cancer of the pancreas. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014). Although this does not preclude service connection on a direct basis, the evidence would clearly have to demonstrate that, in this Veteran’s specific case, his pancreatic cancer was the result of his exposure to herbicide agents, which evidence the appellant has not submitted. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Therefore, the question of which cancer was primary – lung or pancreatic –is outcome determinative in the present case. The VA treatment records show that CT scans of the chest and abdomen showed the Veteran’s metastatic cancer affected both his lungs and his pancreas. August 2009 Oncology consultation notes indicate that the lung was the most likely primary. However, the Tumor Board (which met the evening after the Oncology consultation) opined that the primary was the pancreatic cancer greater than the lung cancer. It appears from the Oncology notes that the oncologists thought the primary cancer was most likely lung because that biopsy showed he had adenocarcinoma of the lung, whereas the biopsy of the pancreas was only suspicious for malignancy. The Board is unclear why the Tumor Board thought that it was the pancreas rather than the lung because there is no explanation in the note for the basis of that opinion. Furthermore, the Tumor Board appears to have requested further testing to confirm its opinion, but there is no record of such testing having been accomplished. The Board notes that the physician who signed the Veteran’s death certificate was his VA primary care physician and, therefore, he most likely followed the last opinion of record when issuing the death certificate, which was the Tumor Board’s finding, as no autopsy was conducted and it does not appear there was any further treatment after August 2009. The oncologists’ opinion seems based upon a reasonable basis and, thus, should be given substantial weight. In contrast, the Tumor Board findings would appear to warrant significant weight, but there is no rationale provided to support its findings. Consequently, the Board finds such evidence is in equipoise and raises a reasonable doubt that the primary cause of the Veteran’s metastatic cancer was lung cancer, not pancreatic cancer. When, after consideration of all the evidence, a reasonable doubt arises regarding the degree of disability or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As lung cancer is an enumerative presumptive disease related to exposure to herbicide agents, service connection for the cause of the Veteran’s death is warranted as the primary cause of the Veteran’s metastatic cancer is presumed to be related to his presumed exposure to herbicide agents during his service in the Republic of Vietnam. 2. Entitlement to VA death pension benefits In the August 2010 decision, the RO granted entitlement to VA death pension benefits effective October 11, 2009 and awarded payment of benefits effective November 1, 2009 in the amount of $311.00. However, it terminated benefits effective December 1, 2009 due to the appellant having excessive income. The termination was due to an increase in her income from the Social Security Administration (SSA). In April and November of 2012, the appellant submitted VA Form 21-0516-1, Improved Pension Eligibility Verification Report (EVR), seeking to reopen her entitlement to VA death pension benefits. She reported she receives SSA disability monthly. She also reported that, in February 2012, she began paying for Medicaid insurance out of her SSA benefit, which reduced her payment from $818.00 to $719.00 per month. She has not reported any other unreimbursed medical expenses for this period. A data match with SSA shows the appellant received $818.90 monthly income from SSA starting in December 2011 and she paid $99.90 per month in SMI premiums. Annualizing these amounts (i.e., multiplying them by 12) shows the appellant had annual income of $9,826.00 and unreimbursed medical expenses of $1,198.00 (note that cents are not considered). The MAPR for a surviving spouse with no dependents effective as of May 1, 2012 was $8,219.00. Only medical expenses in excess of five percent of the MAPR, or $410.00, may be considered. Thus, only $788.00 of medical expenses are deductible leaving a net income of $9,038.00. As the appellant’s net income is in excess of the allowable MAPR of $8,219.00, she is not entitled to VA death pension benefits for the annual period beginning in May 2012. The Board acknowledges the request made by the appellant’s representative in its brief that the appellant’s claim be remanded for further development as she may currently be eligible for pension. However, the RO has limited the appellant’s appeal solely to whether she is entitled to payment of VA death pension benefits for the single annual period beginning after the appellant’s claim was filed in April 2012. Thus, subsequent periods of pension eligibility are not on appeal to the Board and it has no jurisdiction to consider such an issue. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow