Citation Nr: 18156168 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 15-18 693A DATE: December 11, 2018 ORDER No new and material evidence having been received, the claim for entitlement to dependency and indemnity compensation (DIC) based on the Veteran’s cause of death is not reopened and the claim remains denied. FINDINGS OF FACT 1. In October 1986, October 1999, and August 2001 rating decisions, the Department of Veterans Affairs (VA) Regional Office (RO) denied DIC benefits based on the Veteran’s cause of death; the appellant did not perfect an appeal to any of these decisions. 2. Evidence received since August 2001 is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for DIC benefits based on the Veteran’s cause of death and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1986, October 1999, and August 2001 rating decisions denying DIC benefits are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.201, 20.302, 20.1103. 2. New and material evidence has not been received and the claim seeking DIC benefits based on the Veteran’s cause of death is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1960 to October 1980. He died in June 1986. The appellant seeks DIC benefits for the cause of his death as his surviving spouse. In her June 2015 Form 9, the appellant requested a hearing before the Board of Veterans’ Appeals (Board). In April 2016, she withdrew that request. If a claim 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. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran died in June 1986. His death certificate indicated he died of cardiorespiratory arrest due to, or as a consequence of, multiple organ failure, due to, or as a consequence of, abdominal carcinomatosis. Other significant conditions contributing to death but not related to the cause were listed as pleural effusions, escites and renal failure. Service connection has been awarded for hypertensive cardiovascular disease, fractures of the right middle finger, right small finger and fifth metatarsal of the right foot, and left and right knee disabilities. In October 1986, October 1999, and August 2001, the RO denied the appellant’s claim for DIC benefits based on the cause of the Veteran’s death. In October 1986, the RO found that service medical records were negative for cancer and that the final hospital summary prior to the Veteran’s death did not show that the Veteran’s already service connected disabilities, to include orthopedic disability and hypertensive cardiovascular disease, contributed either materially or substantially to his death. In October 1999, the RO determined the available scientific and medical evidence did not support the conclusion that abdominal carcinomatosis was associated with herbicide exposure as argued by the appellant in her March 1999 claim. In August 2001, the RO found that new and material evidence had not been received and the conditions that caused the Veteran’s death were not shown to have been service related. The appellant was provided notice of these decisions and her appellate rights but did not perfect appeals to the Board after any of these decisions. She did disagree with the October 1986 decision but failed to perfect her appeal after a statement of the case was issued by VA. She did not submit timely notices of disagreement with the October 1999 or August 2001 rating decisions. Therefore, the decisions are final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. In September 2014, the appellant requested to reopen her claim. She argued that the Veteran’s cause of death, specifically cardiorespiratory arrest, was caused by hypertensive cardiovascular disease which the Veteran was service-connected for prior to his death. She also argued her husband had been exposed to 2,4,5-trichlorophenozyacetic acid and 2,4-dicholorophenazyacetic acid. She argued these toxins were known human carcinogens that resulted in “renal and hepatic injury/stomach cancers.” She indicated the belief that her husband had been exposed to such chemicals during service in Vietnam when he was sprayed with Agent Orange. She submitted various articles in support of this argument. In March 2015, the claim was denied in the absence of new and material evidence as the relationship between cardiorespiratory arrest and hypertensive cardiovascular disease as well as exposure to Agent Orange had already been considered in the final rating decisions. In April 2015 notice of disagreement, the appellant argued that that she intended to only claim that cardiorespiratory arrest was caused by hypertensive cardiovascular disease which was a service-connected condition at the time the Veteran died. She stated the “claim should not have been about trying to put this Veteran in Vietnam or any of those presumptive conditions or associations of any other chemicals.” She repeated such argument in her June 2015 Form 9 and again stated she was no longer contending that her husband was exposed to Agent Orange or other chemicals and was only arguing that cardiorespiratory arrest was caused by his service-connected hypertensive cardiovascular disease. Upon review of the record, the Board finds that, although the appellant submitted new evidence regarding Agent Orange, chemicals present in herbicides, hypertension and heart disease in the form of articles, the evidence is not material as it does not relate to an unsubstantiated fact or raise a reasonable possibility of substantiating the claim. Initially, as was considered in October 1986, the Veteran’s death was the result cardiorespiratory arrest and multiple organ failure due to abdominal carcinomatosis. In the hospital records summarizing his death, it was noted he had been in a good state of health until he developed progressive vomiting and a 60-pound weight loss in March 1985 and a large mass was revealed during an endoscopy which was biopsied and revealed adenocarcinoma. As indicated in the October 1986 rating decision, the record did not contain evidence that the Veteran’s cardiorespiratory arrest was caused by his hypertensive cardiovascular disease and evidence presented since October 1986 does not support a finding that hypertensive cardiovascular disease was either a direct or contributory cause of death in this Veteran’s case. Instead, the evidence of record continues to support a finding that cardiorespiratory arrest was caused by cancer that had metastasized from the duodenum and caused organ failure. In the final rating decisions, the RO considered the appellant’s argument that Agent Orange contributed to the Veteran’s cause of death, specifically abdominal carcinomatosis. It was explained that VA has determined that presumption of service connection based on exposure to herbicides is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. Abdominal carcinomatosis is not among the disabilities that warrants presumptive service connection under VA regulations. Evidence presented since August 2001 does not raise a reasonable possibility of showing that the Veteran served in Vietnam, which the evidence currently does not demonstrate, or that, if he had been exposed to herbicides, there was a direct link between that exposure and his development of abdominal carcinomatosis. (Continued on the next page) As the appellant has not fulfilled her threshold burden of submitting new and material evidence to reopen the finally disallowed claim for DIC benefits based on the Veteran’s cause of death, the benefit-of-the-doubt doctrine is not applicable and the appeal is denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel