Citation Nr: 18157639 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-58 424A DATE: December 13, 2018 ORDER The application to reopen the previously denied claim for service connection for cause of death is granted. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. In a May 2008 rating decision, the RO denied the appellant’s claim of entitlement to service connection for cause of death. The appellant did not appeal and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the May 2008 rating decision relates to the basis for the prior denial for cause of death and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. In a May 2008 rating decision, the RO denied the appellant’s claim of entitlement to service connection for cause of death. The appellant did not appeal and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the May 2008 rating decision relates to the basis for the prior denial for cause of death and raises a reasonable possibility of substantiating the claim. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to May 1970. He died in April 1981, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant’s application to reopen the service connection claim for cause of death. In July 2016, the appellant testified at an RO hearing. The hearing transcript is of record. Application to reopen previously denied claim Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO last denied service connection for cause of death in a May 2008 rating decision. The appellant did not appeal the decision, nor did she submit new and material evidence within the remaining appeals period. Accordingly, the May 2008 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1003. In the May 2008 rating decision, the RO cited an absence of evidence that the reported cause of death was related to service or service-connected disability. The RO considered a July 2007 letter from the appellant and the April 1981 death certificate in making this determination. The July 2007 letter asserted that the Veteran’s service-connected brain syndrome led him to take medication for constant pain and was a contributory cause of death. Since the May 2008 rating decision, the appellant provided additional information, including testimony at a July 2016 RO hearing. She detailed how the Veteran’s alcohol abuse was secondary to service-connected brain syndrome. She reported that the Veteran was normal prior to the military head injury. Following service, the Veteran self-medicated due to his service-connected brain syndrome. She described the Veteran as having poor decision-making skills following the military head injury. In this case, the appellant is competent to describe her recollections of the Veteran’s behavior. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Her reports are presumed credible for reopening purposes. Justus, 3 Vet. App. at 513. In sum, the newly received items of evidence relate to the basis for the prior denial to suggest alcohol abuse secondary to service-connected chronic brain syndrome was a contributory cause of death for the Veteran. The additional evidence raises a reasonable possibility of substantiating the claim. The Board thus considers it to be new and material. Reopening of the cause of death claim is therefore warranted. REASONS FOR REMAND Entitlement to service connection for cause of death. A VA medical opinion is needed to fulfill VA’s duty to assist. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran’s death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. The appellant’s reports suggest that alcohol abuse secondary to service-connected brain syndrome was a contributory cause of death for the Veteran as detailed below. She is competent to report her recollections of the Veteran’s behavior, and the Board considers her reports generally credible. However, the issues of whether alcohol abuse was secondary to service-connected brain syndrome and whether it was a contributory cause of death are complex medical questions as to which lay evidence generally is not competent. Jandreau, 492 F.3d at 1377 n. 4. In this case, service treatment records (STRs) included a December 1967 entrance examination that did not reveal any preexisting substance abuse or psychiatric disorder. Thus, the Veteran is entitled to the presumption of soundness. 38 C.F.R. § 3.304(b). STRs confirm that the Veteran sustained a gunshot wound to his head and associated removal of his right eye. An August 1969 psychiatric consultation noted that the Veteran had preexisting behavioral problems. However, the psychiatrist concluded that any preexisting psychiatric problem was aggravated by the military head injury. The Veteran received a disability separation in May 1970. Following service, VA treatment records documented the Veteran’s treatment for severe alcoholism on several occasions. The April 1981 hospitalization report noted that the Veteran had multiple liver and pancreas problems and chronic alcohol intake. During hospitalization, the Veteran was treated for aspiration pneumonia and developed upper gastrointestinal complications. His status deteriorated despite treatment. He became unresponsive and expired. The April 1981 Death Certificate listed an immediate cause of death as edema and congestion of the lungs due to bronco pneumonia. It then listed cirrhosis of the liver, portal upper gastro intestinal tract, esophageal varices as other significant conditions. The appellant asserts that the Veteran’s alcohol-induced liver cirrhosis was secondary to service-connected chronic brain syndrome with brain trauma. See July 2016 RO hearing. Although substance abuse induced disability is generally considered willful misconduct, there is a narrow exception if the substance abuse disorder is acquired as a result of service-connected disability. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d); see also Allen v. Principi, 237 F.3d 1368, 1375-76 (Fed. Cir. 2001) (noting that 38 U.S.C. § 1110 precludes compensation for primary alcohol and drug abuse disabilities but does not preclude compensation for an alcohol or drug abuse disability that is secondary to a service-connected disability). Here, the Veteran is service-connected for chronic brain syndrome associated with brain trauma. The issue of secondary substance abuse to service-connected chronic brain syndrome as the cause of death is raised by the above record. Id. As noted, a VA medical opinion is needed to resolve this issue and a remand for such an opinion is warranted because it cannot be said that there is no reasonable possibility that such assistance would aid in substantiating the claim. The matter is REMANDED for the following action: 1. Request an opinion from an appropriate specialist VA physician as to the etiology of the Veteran's death. The electronic claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's service-connected chronic brain syndrome associated with brain trauma contributed substantially or materially to the Veteran's death. In addressing this question, the VA physician should specifically address the appellant's contention that the Veteran's alcohol abuse disorder was secondary to service-connected chronic brain syndrome and the alcohol abuse disorder contributed to or caused his cirrhosis of the liver. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran was and the appellant and any other lay witnesses are competent to report symptoms and treatment, and that these reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel