Citation Nr: 18147014 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-26 362 DATE: November 2, 2018 ORDER The previously denied claim of entitlement to service connection for cause of the Veteran’s death is reopened. Entitlement to service connection for cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Board denied the appellant’s claim for service connection for the cause of the Veteran’s death in a March 2005 decision on the basis that the brain tumor that led to the Veteran’s death was not incurred in or related to his active service; new and material evidence was received after the March 2005 Board decision related to the cause of the Veteran’s death. 2. The Veteran’s death certificate reports that he died in October 2001; the immediate cause of death was glioblastoma of the brain. 3. The Veteran served in the Republic of Vietnam (RVN) from October 20, 1967 through August 27, 1968, during which he is presumed to be exposed to herbicide agents. 4. The Veteran’s glioblastoma of the brain was causally related to his exposure to herbicide agents during his active service. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim of entitlement to service connection for cause of the Veteran’s death have been met. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with active duty service in the United States Marine Corps from September 1966 through September 1968, including service in the Republic of Vietnam. The Veteran died in October 2001; the appellant here is the Veteran’s surviving spouse. The claim for service connection for the cause of death was previously denied in a January 2002 rating decision, the denial of which was affirmed by a Board of Veterans’ Appeals (Board) decision in March 2005. 1. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for cause of the Veteran’s death. The appellant sought reopening of this matter by claim filed in August 2015. As the claim was previously denied, as an initial matter, the Board must determine if it has jurisdiction to revisit and rule on the merits of the claim. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered “new” if it was not previously submitted to agency decision makers; “material” evidence is 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). 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). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the March 2005 Board decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board may consider all evidence of record, even that submitted after the appeal was certified to the Board. See 38 C.F.R. § 3.156(b). New evidence associated with the file includes, inter alia, a five-page August 18, 2018 Private Medical Report drafted by M.K., M.D. PhD. The report contains an opinion regarding the nature and etiology of the Veteran’s death. This evidence relates to the basis for the prior denial, and is thus new and material. The criteria for reopening the previously denied claim of service connection for cause of the Veteran’s death is met, and the claim is accordingly reopened. 2. Entitlement to service connection for cause of the Veteran’s death is granted. To establish service connection for the cause of a veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). The law provides that service connection will be granted for a disease or disability if it is shown that the veteran suffered from such disease or disability and that it resulted from an injury suffered or disease contracted in line of duty, or from aggravation in line of duty of a preexisting injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The law provides for presumptive service connection for certain diseases as associated with exposure to herbicide agents for a veteran who, during active service, served in Vietnam between April 1, 1968 and August 31, 1971. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). The record establishes that the Veteran served in the United States Marine Corp from September 1966 to September 1968, with service in the RVN from October 20, 1967 to August 27, 1968. It is contended that the Veteran’s brain tumor was caused by his exposure to herbicides during his service in the RVN. As the record shows that the Veteran served in Vietnam, his exposure to herbicides is conceded. 38 C.F.R. § 3.307(a)(6)(iii). An April 2001 VA examination confirmed the Veteran suffered from a malignant brain tumor, diagnosed in October 2000. He reported surgery followed by radiation treatment. The death certificate shows that the Veteran died in October 2001, with the cause of death being listed as glioblastoma of the brain. The Board finds that the Veteran’s cause of death is established in the record to have been the glioblastoma of the brain. As noted in the prior Board decision, this is not a condition that is entitled to a legal presumption of being related to herbicide exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a), (d), and (e). Notwithstanding, the appellant is not precluded from establishing direct service connection for the cause of death pursuant to 38 C.F.R. §§ 3.312, 3.303. As such, the case hinges on whether there is a medical nexus between the glioblastoma of the brain and the herbicide exposure. New evidence of record since the Board’s 2005 decision is an August 2018 Private Medical Report (Private Report) drafted by M.K., M.D. PhD. The clinician noted a complete review of the claims file, noted the Veteran’s exposure and medical history, discussed his other risk factors, and discussed a wide variety of publications and research on herbicide exposure and glioblastomas. The clinician opined that the epidemiology and the scientific evidence indicate that it was more likely than not that the exposure to dioxin compounds in Agent Orange caused or aggravated the Veteran’s glioblastoma. The citations to evidence in the Private Report are consistent with the Board’s review of the evidence, and the methodology utilized and rationale expressed by the clinician appears to be in keeping with sound scientific principles. Further, the clinician’s credentials and cited experience appear to well-qualify him to offer the proffered opinion. The Board finds the clinician to be credible and competent, and affords the opinion contained in the Private Report significant weight. There is no negative medical nexus opinion of record, and the Board will not remand for negative evidence if there is sufficient evidence of record to decide a case. The evidence of record establishes that it is at least as likely as not that the in-service herbicide exposure caused the glioblastoma of the brain that resulted in the Veteran’s death. As such, service connection for cause of the Veteran’s death is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel