Citation Nr: 18157192 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 16-63 916 DATE: December 13, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death and, to that extent only, the appeal is granted. REMANDED Entitlement to DIC based on service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. A May 2013 rating decision denied the Appellant’s claim of entitlement to DIC based on service connection for the cause of the Veteran’s death; the Appellant did not appeal that decision in a timely manner and no new and material evidence was submitted within one year of the rating decision. 2. Evidence received since the May 2013 rating decision is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the Appellant’s claim. CONCLUSIONS OF LAW 1. The May 2013 rating decision that denied the claim of entitlement to DIC based on service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to DIC based on service connection for the cause of the Veteran’s death. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to March 1971, to include service in the Republic of Vietnam. The Veteran died in November 2012 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that reopened a previously denied claim the for entitlement to DIC based on service connection for the cause of the Veteran’s death. The RO originally denied the Appellant’s claim in a May 2013 rating decision, finding that there was insufficient evidence to establish a relationship between the cause of the Veteran’s death – oral (gingival) cancer – and his active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Appellant did not appeal the rating decision or submit material evidence within one year of the notification of the decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Appellant filed a request to reopen the claim in August 2015, and in an August 2016 rating decision, the RO reopened the Appellant’s claim; however, the previous denial was continued. Regardless of the RO’s actions, the Board must itself determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In establishing whether new and material evidence has been received, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that new and material evidence has been submitted sufficient to reopen the Appellant’s claim. This evidence includes medical opinions from the Veteran’s private physicians addressing whether his oral cancer was related to herbicide agent exposure in the Republic of Vietnam. As the new evidence raises a reasonable possibility of substantiating the claim, the claim is reopened. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the entire record, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained below, the Board has determined that additional development is necessary before the merits of the Appellant’s claim can be addressed. REASONS FOR REMAND While the Board sincerely regrets further delay, remand is necessary to obtain a VA medical opinion as to the etiology of the Veteran’s cause of death. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the primary or contributory cause of death. 38 C.F.R. § 3.312. As noted above, the Veteran died in November 2012. The immediate cause of death listed on the Veteran’s death certificate was oral cancer, specifically, squamous cell carcinoma (gingival). No other contributing conditions were noted. At the time of his death, service connection was only in effect bilateral hearing loss. It is the Appellant’s contention, however, that the Veteran’s oral cancer was due to exposure to herbicide agents in the Republic of Vietnam. While service connection for the Veteran’s cause of death is not warranted on a presumptive basis under the provisions of 38 C.F.R. § 3.307(a)(6) and 3.309(e), entitlement may be warranted on a direct service connection basis. In support of her claim, the Appellant submitted the positive medical opinions from the Veteran’s private physicians, Dr. D.B. and Dr. C.G. The Board notes, however, that while Dr. D.B. opined that there was a greater than 50 percent chance that the Veteran’s oral cancer “metastasized to bone and possibly to lung,” no rationale was provided as to why he believed herbicide agents were the cause of the Veteran’s cancer other than to list the chemical compounds contained in “Agent Orange.” Moreover, the opinion of Dr. C.G. was speculative, opining only that although the Veteran chewed tobacco until two years prior to his death, Agent Orange “is well known to be a carcinogen and this may have aided in the aggressiveness of his disease.” See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical evidence that is speculative, general, or inconclusive in nature cannot support a claim.) No other medical opinion for or against the Appellant’s claim is contained in the record. Thus, the Board does not find the evidence of record to be dispositive for this appeal, and the Appellant’s claim should be remanded to obtain a VA medical opinion addressing the etiology of the cause of the Veteran’s death The matter is therefore REMANDED for the following action: 1. Ask the Appellant to identify any remaining outstanding treatment records relevant to her claim. All identified VA records should be added to the claims file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Appellant. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Appellant of the unavailability of the records. 2. After the above is completed, send the claims file to a physician with appropriate medical expertise for a VA medical opinion regarding the etiology of the cause of the Veteran’s death. The claims folder should be reviewed by the physician. After review of the evidence, the physician should address the following: Whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that exposure to herbicide agents in the Republic of Vietnam contributed materially or substantially to the cause the Veteran’s death. The physician should note the private medical opinions of Dr. D.B. and Dr. C.G. A rationale for the requested opinion should be provided as the Board is precluded from making any medical findings, and should include citation to evidence in the record, known medical principles, and/or any medical treatise evidence. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel