Citation Nr: 18156534 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-40 720 DATE: December 11, 2018 ORDER New and material evidence has not been presented, and the petition to reopen the previously denied claim for service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1. In a final February 1993 rating decision, the RO determined that no evidence had been provided that established a relationship between the Veteran’s military service and his death and denied the claim for service connection for the Veteran’s cause of death. 2. Evidence received since the February 1993 RO decision is not new and does not raise a reasonable possibility of substantiating the appellant’s underlying claim. CONCLUSION OF LAW 1. The February 1993 rating decision, which denied entitlement to service connection for the cause of the Veteran’s death, is final. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. 2. New and material evidence has not been submitted, and the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from February 1960 through April 1962, March 1963 through January 1964, January 1964 through January 1968 and July 1967 through May 1981—including service in Vietnam. He died in August 1992. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant had a hearing before the undersigned in May 2018. 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 If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 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 present a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all the evidence submitted since the last final decision in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). For the claim to be reopened, there need not be new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The appellant contends that the Veteran’s cause of death, cancer of the stomach and esophagus, should be service-connected due to herbicide exposure. At the time of the Veteran’s death, he was service-connected for degenerative disc disease with arthritis of the cervical spine; lumbosacral strain; phalangectomy, little toe, bilateral with residual bony hypertrophy, little left toe and associated painful dermal keratosis; bronchitis; chondromalacia, left knee; bilateral high frequency hearing loss; hypertension; hemorrhoids; and nasal fracture. The appellant’s claim was originally denied in February 1993 rating decision, because the Veteran’s service-connected disabilities were not linked to the Veteran’s cause of death, primarily stomach and esophagus cancers, and was not shown in military service or within 12 months following service. The evidence of record at the time of the February 1993 RO decision included the Veteran’s death certificate, dated August 1992; his service treatment records from April 1963 through April 1981; private treatment records from Metroplex Hospital, dated June 1992 through August 1992, the claim for service connection for the cause of the Veteran’s death and a rating decision, dated September 1985. The February 1993 rating decision was not appealed and became final in February 1994. In a March 2016 rating decision, the appellant’s application to reopen the previously disallowed claim for service connection for the cause of the Veteran’s death was denied, because new and material evidence was not submitted. On appeal, the appellant has submitted no new evidence related to the cause of the Veteran’s death. Specifically, she submitted private treatment records from Scott and White Clinic and Hospital, dated March 1992 through April 1992 and a death certificate, dated August 1992, which were all received in January and February of 2016. At the May 2018 hearing, the appellant submitted medical treatment records from Darnall Army Hospital. The record supports that the Veteran was treated at the Darnall Army Hospital through approximately 1992. An October 1991 rating decision confirmed outpatient treatment records were received from Darnall Army Hospital, dated April 1989 through July 1990. Service treatment notes previously submitted show treatment from Darnell Army Hospital as early as June 1967. The February 1993 rating decision confirmed that all service treatment records for the period of April 1963 through August 1992 were received into the record. Thus, it is assumed that all records from Darnall Army Hospital were included in the existing record at the time the appellant submitted them in May 2018. These records do not present a reasonable probability of substantiating the claim of service connection for the cause of the Veteran’s death, because they do not show that the Veteran’s cause of death, stomach and esophagus cancers, occurred in military service or within in 12 months of discharge or is otherwise related to a service-connected disability. The Veteran’s death certificate was also previously received as noted in the in the February 1993 rating decision. Likewise, the record shows a May 1992 submission of evidence from Scott & White Hospital and Clinic, dated March 1992 through April 1992. These records are the same records submitted by the appellant in January 2016. Thus, no new evidence has been received, and it is not material to the Veteran’s claim for service-connected for cause of death. The appellant has also asserted that the Veteran’s cause of death was due to his service in the Republic of Vietnam, where he was exposed to herbicide agents. However, the Veteran’s cause of death was reported as stomach and esophagus cancers. Even if the appellant’s claim was reopened, the list of diseases afforded presumptive service connection based on exposure to herbicide agents does not include stomach and esophagus cancers. Consequently, the herbicide agent exposure presumptive provisions of 38 U.S.C. § 1116 do not apply. Furthermore, the appellant has submitted no new and material evidence establishing the Veteran’s esophagus and stomach cancers were directly related to his service, to include his presumed exposure to herbicide agents. The Board points out that without any actual competent and credible evidence presented to indicate that the Veteran’s esophagus and stomach cancers were due to his active service, any statements from the appellant will not be a sufficient basis on which to reopen her claim. The Board is sympathetic toward the appellant’s claim, and is deeply appreciative of the Veteran’s military service, including his service during the Vietnam War, for which he was awarded multiple medals. However, given the absence of receipt of any new and material evidence since the February 1993 RO decision, reopening the claim of entitlement to service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel