Citation Nr: 18155814 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-07 736 DATE: December 6, 2018 ORDER New and material evidence having been received, the claim for service connection for the cause of the Veteran’s death is reopened. Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. A November 2011 Board decision denied the appellant’s claim for service connection for the cause of the Veteran’s death. The appellant did not appeal that decision and that decision is final. 2. Some of the evidence received since the Board’s November 2011 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran’s death. 3. The Veteran died in July 1998 of respiratory failure due to metastatic adenocarcinoma of the stomach to lungs. Other evidence reflects that the Veteran died of adenocarcinoma, the primary site of which was either the stomach or the esophagus. 4. At the time of the Veteran’s death, service connection was in effect for a left knee shrapnel wound, bilateral hearing loss, and multiple scars. 5. The evidence of record is at least in equipoise as to whether the Veteran’s metastatic adenocarcinoma of the stomach was related to service. CONCLUSIONS OF LAW 1. Evidence submitted since the last final denial of service connection for the cause of the Veteran’s death is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to March 1972. The Veteran received the Combat Infantry Badge and a Purple Heart, among other medals. The Veteran died in July 1998. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence 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 In a November 2011 Board decision, service connection was denied for the cause of the Veteran’s death, and the appellant did not perfect an appeal or request reconsideration. Therefore, the November 2011 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100 (2018). A claim of clear and unmistakable error in the November 2011 decision was denied in a November 2018 Board decision. Generally, 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). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2018). 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. Id. The evidence received since the November 2011 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran’s private physician, Dr. J.E., submitted a statement dated September 2013 essentially linking the increased stress levels as a result of being in combat in Vietnam to the development of abnormal esophageal peristalsis, resulting in more gastroesophageal reflux acid into the esophagus and upper part of the stomach, which in turn caused a propensity for the development of cancer of the esophagus and the stomach. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and must be considered on the merits. Service Connection Entitlement to service connection for the cause of the Veteran's death In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312 (2018). The Veteran died in July 1998, and the death certificate lists the cause of death as respiratory failure due to metastatic adenocarcinoma of the stomach to lungs. At the time of the Veteran’s death, service connection was in effect for a left knee shrapnel wound, bilateral hearing loss, and multiple scars. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2018). Generally, in order to establish direct service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The appellant contends that the Veteran’s adenocarcinoma is related to service, to include as due to exposure to herbicides. However, esophageal and/or stomach cancer are not conditions entitled to presumptive service connection based upon herbicide exposure under 38 C.F.R. § 3.309(e) (2018). Nevertheless, even if a claimant is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). A September 2011 private opinion from Dr. B.G. indicated that he saw the Veteran in 1998 for cancer. He stated that at that point in time, the Veteran had a mass in the gastroesophageal junction. There was disease in both the upper and lower aspects of the esophagus as well as the upper part of the stomach. Biopsies of the esophagus were positive for adenocarcinoma. Dr. B.G. indicated that his initial consultation note stated gastric adenocarcinoma because there was a mass in the stomach but that it would be impossible to tell whether the Veteran’s cancer started in the esophagus and spread to the stomach or whether it started in the stomach and grew into the esophagus. Thus, according to Dr. B.G., the primary site could have been either esophageal or gastric. As mentioned above, the appellant submitted a September 2013 private medical opinion from Dr. J.E. who explained that it is noted in the records that the Veteran was diagnosed with adenocarcinoma of the stomach. Dr. J.E. also stated that the Veteran also had adenocarcinoma of the esophagus. He opined that it is more likely than not with the many years of gastroesophageal reflux disease that he had and taking many antacids that he had irritation of the esophageal lining, making him more prone to developing the adenocarcinoma of the esophagus, then with the metastasis to the stomach, lungs and the rest of the body. Further, he opined, it is more likely than not that the Veteran’s stresses of being in actual combat in Vietnam and receiving a Purple Heart caused psychological changes in his brain, resulting in higher stress levels after his tour in Vietnam. He explained that the higher stress levels more likely than not would have caused abnormal esophageal peristalsis, resulting in more gastroesophageal reflux acid into the esophagus. Finally, he opined that it more likely than not caused more esophageal irritation, which more likely than not caused a propensity for developing cancer of the esophagus and the upper part of his stomach. Upon review of the record, the Board finds the private opinion linking the Veteran’s esophageal and stomach cancer to the stress from his combat service to be competent and probative. Accordingly, affording the appellant the benefit of the doubt, service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Medina, Associate Counsel