Citation Nr: 18148438 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-14 499 DATE: November 8, 2018 ORDER The appellant’s petition to reopen the claim for entitlement to service connection for the cause of the Veteran's death is granted to this extent only. REMANDED Entitlement to service connection for the cause of the Veteran’s death. FINDING OF FACT A September 2009 Board decision denied the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death; and evidence has been submitted since the September 2009 Board decision that raises a reasonable possibility of substantiating the claim for entitlement to service connection for the cause of the Veteran’s death. CONCLUSIONS OF LAW 1. The September 2009 decision which denied entitlement to service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 4005(c) (2002); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2008). 2. New and material evidence has been submitted, and the appellant's claim for entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1961 to March 1966, including service in the Republic of Vietnam. He died in March 2005. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant has on two occasions expressed her desire to revoke Disabled American Veterans’ (DAV) authority to represent her in this matter, and to pursue her appeal pro se. See June 2014 VA 21-4138 and June 2014 notice of disagreement. The appellant did not file a VA Form 21-22 revoking DAV as her representative. However, since the appellant expressed her desire to proceed pro se, all correspondences in the claims file have come directly from the appellant herself, with the exception of a recently filed appellate brief. However, as both above-referenced correspondences clearly state the appellant’s desire to no longer be represented in her appeal by DAV, and both correspondences came directly from the appellant, the Board finds that there is no ambiguity regarding the appellant’s desire with regard to representation. As the appellant retains the right to revoke her representative at any time, collectively, the June 2014 revocations are acknowledged by the Board, and the appellant is recognized as proceeding pro se. 38 C.F.R. § 14.631(f). Whether new and material evidence has been received to reopen the claim for entitlement to service connection for the cause of the Veteran's death The appellant seeks to reopen her claim of entitlement to service connection for cause of death. A Board decision is final on the date stamped on the front of the Board decision. 38 C.F.R § 20.1100. All Board decisions can be appealed to the United States Court of Appeals for Veterans Claims (Court) by filing a Notice of Appeal (NOA). If a NOA is filed within 120 days from the date stamped on the front of the Board decision, then the Board decision becomes final. See 38 U.S.C. § 7104 (2012). The appellant’s claim for service connection for cause of death was denied in a September 2009 Board decision. At that time, the Board found that service connection was not in effect for any disability and the evidence did not show that the Veteran’s cause of death was incurred in service or was caused by his military service. The appellant did not file a NOA and appeal to the Court. Thus, the September 2009 Board decision became final. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). "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). The appellant submitted a correspondence in January 2014, expressing her desire to reopen the claim for entitlement to service connection for cause of death. Specifically, the appellant contended that the Veteran’s cause of death, metastatic carcinoma of the esophagus, was due to herbicide exposure. See VA 21-534, submitted January 18, 2014. The RO granted the appellant’s petition to reopen in a June 2014 rating decision, but ultimately denied entitlement to service connection for cause of death. The Board notes that in the June 2014 rating decision, the RO acknowledged that when the appellant initially filed her petition to reopen the claim, she had not been informed of the specific evidence that she would need to submit to support her theory that the Veteran’s death was due to herbicide exposure. This issue was remedied by a letter sent to the appellant in April 2014, requesting that she submit medical evidence showing a reasonable probability that the condition which contributed to the Veteran’s death was caused by injury or disease that began during a period of active duty service, or that the Veteran's metastatic carcinoma of the esophagus was related to exposure to herbicides. See June 2014 Rating Decision and MAP-D Development Letter, dated April 25, 2014. The Veteran’s cause of death was metastatic carcinoma of the esophagus. See Death Certificate. When this matter was last before the Board in September 2009, the appellant’s contention was that service connection was warranted because the Veteran's death was caused by lung cancer, for which presumptive service connection due to herbicide exposure is available. The Board relied on a November 2003 VA examination in finding that the Veteran’s esophageal cancer metastasized to his lungs. The Board further found that while the Veteran's metastatic esophageal carcinoma had metastasized to the lungs at the time of his death, service connection on a presumptive Agent Orange basis was not warranted because that presumption is only available for primary site cancers, rather than metastasized cancers, such as the Veteran’s lung cancer. See Darby v. Brown, 10 Vet. App. 243 (1997). The Board also found that the Veteran's fatal esophageal cancer is not subject to the presumption for diseases associated with herbicide exposure. The Board finds that the appellant’s lay evidence is new and material and the claim is reopened. The appellant has submitted lay evidence contending that the Veteran’s esophageal cancer is due to exposure to herbicide agents in service. Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Thus, the Board finds that the additional evidence regarding whether esophageal cancer is directly related to the Veteran’s service could contribute to a more complete picture of the circumstances regarding the Veteran’s death and is sufficient to reopen the claim. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death. The appellant asserts that the Veteran’s esophageal cancer was caused by exposure to herbicide agents in service. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. The fact that service connection is not available on a presumptive basis because the diagnosed condition is not on the presumptive list does not preclude a claimant from establishing direct service connection, with proof of actual or direct causation. Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). The November 2003 VA opinion does not adequately address whether esophageal cancer is related to service. A VA medical opinion should be obtained. The matter is REMANDED for the following action: 1. Obtain an opinion from a VA examiner. After review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's esophageal cancer had its onset during active service or is etiologically related to any incident of service, to include his presumed in-service exposure to Agent Orange. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel