Citation Nr: 18153369 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-58 964 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for cause of death is reopened. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT 1. In an unappealed September 2004 decision, the RO denied Appellant’s claim of entitlement to service connection for cause of death. 2. Evidence received since the September 2004 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim of service connection for cause of death. CONCLUSION OF LAW 1. The September 2004 rating decision denying service connection for cause of death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104 (a), 20.1103 (2018). 2. New and material evidence sufficient to reopen Appellant’s claim of service connection for cause of death has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1970. He died in February 2004. The appellant is the deceased Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2018, the Appellant submitted additional evidence, which has not yet been considered by the RO. However, the Appellant waived initial RO consideration of that evidence. 1. New and Material Evidence Regardless of a Regional Office’s (RO) determination as to whether new and material evidence has been received, the Board must determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection. Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initial considered and denied a claim for service connection for cause of death in a September 2004 due to absence of evidence of a nexus between the Veteran’s pancreatic cancer and service. The Appellant did not appeal that decision, nor did she submit new and material evidence within a year of receiving it. The decision therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In November 2013, Appellant filed a petition for reconsideration of her claim of service connection for the Veteran’s cause of death. Thereafter, in a January 2014 rating decision, the RO reopened and denied the claim for service connection for cause of death. The RO denied the claim as there was no evidence that there was a relationship between the Veteran’s death and military service. In an April 2014 Notice of Disagreement, the Appellant disagreed with the January 2014 rating decision. The Board finds that the evidence added to the record since the September 2004 rating decision includes University Hospitals treatment records reflecting the Veteran’s treatment for pancreatic cancer, colon/rectal cancer, ascites, and anasarca and an August 2017 private medical opinion from Dr. N. T.. This evidence is new, because it was not of record at the time of the September 2004 decision. The evidence is also material, because it relates to the existence of a nexus between the Veteran’s pancreatic cancer and service. The evidence received is presumed credible, is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating Appellant’s claim. As such, the claim must be reopened. In light of the foregoing, the Board finds that new and material evidence has been received and the claim of service connection for the cause of the Veteran’s death is reopened. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded. The Board finds that additional development is required for the claim for service connection for pancreatic cancer, as the cause of death of the Veteran, to include as due to herbicide exposure. The Board notes after a review of the competent evidence of record, to include the positive medical opinion submitted by Dr. N. T., the record is not yet sufficient for adjudication. Specifically, the Board notes that the VA has not yet acquired a medical opinion regarding the etiology of the Veteran’s cause of death, to include pancreatic cancer. While the Board recognizes that pancreatic cancer is not among the listed diseases and conditions that may be presumptively service-connected based on exposure to herbicides, it does not preclude the claim for service connection to be established directly by competent medical evidence. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994) (when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). Here, the Board finds that an adequate and complete medical opinion regarding a direct etiological nexus between herbicide exposure and the Veteran’s cause of death is needed. VA’s duty to assist includes obtaining medical opinion to assess the nexus of the claimed condition and any in-service incurrence or injury. A review of the medical records shows that the Veteran died in February 2004. His death certificate indicates that the immediate cause of death was pancreatic cancer and other significant conditions contributing to his cause of death were listed as ascites, anasarca, and colon cancer. The record, at the time of the Veteran’s death, does not reflect that service connection had been established for any disability. Notwithstanding, the appellant asserts that the Veteran’s death was due to exposure to herbicides during military service. As the Veteran served in the Republic of Vietnam, during the Vietnam era, in-service exposure to herbicides is conceded and presumed. Further, the appellant, has consistently asserted that the Veteran’s pancreatic cancer was caused by exposure to herbicides during service. As mentioned above, the appellant submitted an August 2017 private medical opinion from Dr. N. T. The Board finds that the opinion contains deficiencies and that seeking additional evidence is not contrary to VA’s duties. Shoffner v. Principi, 16 Vet. App. 208, 210 (2002). The August 2017 private medical opinion associated the Veteran’s cause of death with exposure to herbicides while serving in Vietnam. Dr. N. T. opined that the Veteran developed pancreatic cancer more likely than not as a result of exposure to Agent Orange. In addition, Dr. N. T. cited a scientific journal article to substantiate the claim that there is a correlation between one of the chemical components in Agent Orange and pancreatic cancer. However, the article cited does not make any specific claim for such correlation between the Agent Orange and pancreatic cancer. Therefore, a medical opinion is requested to ascertain whether it is more likely than not that the Veteran’s pancreatic cancer was caused by presumed herbicide exposure. The matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s pancreatic cancer prior to his death. After reviewing all the evidence in the Veteran’s claims file, to include the August 2017 private medical opinion, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that it is related to his active military service; in particular, whether it is at least as likely as not related to in-service herbicide agent exposure. 2. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. It is not sufficient to note only that pancreatic cancer is not on the list of presumptive diseases for herbicide exposure. Service connection can otherwise be established if there is evidence of a medical nexus, without regard to those specific provisions. 3. Then, the AOJ should review the claim to ascertain that all development has been accomplished. If not, corrective action should be undertaken. KELLI A. KORDICH Veterans Law Judge ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel