Citation Nr: 18161068 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-58 133 DATE: December 28, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The appeal is granted to that extent only. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 is remanded. FINDINGS OF FACT 1. In an October 2006 rating decision, the Appellant’s claim of entitlement to service connection for the cause of the Veteran's death was denied. That decision was not appealed and is final. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the October 2006 decision and which relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The October 2006 rating decision denying service connection for the cause of the Veteran's death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from April 1951 to February 1974. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran died on June [redacted], 2006. The Appellant filed an application for DIC benefits in June 2006. The RO denied the Appellant’s claim in an October 2006 rating decision. The Appellant did not appeal that decision or submit new and material evidence within one (1) year, thereby making that decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Thereafter, the Appellant filed to reopen her claim in June 2014, which was denied by the RO in a July 2014 rating decision and the September 2014 rating decision on appeal. A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). “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. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination as to whether new and material evidence has been received to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). In its October 2006 rating decision, the Appellant’s claim was denied because the evidence of record failed to show that the Veteran’s cause of death was linked to military service. The evidence of record at the time of this decision included the service treatment records (STR’s), the Veteran’s death certificate, and a 2006 social worker report. The death certificate listed hepatic (liver) failure as the immediate cause of death (the final disease or condition resulting in death). The condition leading to liver failure is listed as “primary hepatic carcinoma (liver cancer).” The Veteran’s STR’s included no diagnosis or treatment for liver failure or liver cancer in-service. Evidence received since the October 2006 rating decision includes private treatment records, the Appellant’s August 2014 lay statement and several medical treatises. The Appellant’s lay statement indicate that the Veteran could have possibly contracted Hepatitis C due to multiple surgeries in-service, which contributed to the Veteran’s death. In addition, the Appellant has submitted several medical treatises suggesting a link between the Veteran’s liver cancer and herbicide exposure while in Vietnam. This evidence is new and material, as it provides some evidence of an in-service injury or event, which was a previously unestablished fact necessary to substantiate the claim for service connection. The claim is therefore reopened. REASONS FOR REMAND The Appellant contends that the Veteran’s cause of death was due to his military service. A grant of service connection for the cause of a veteran’s death requires that a service-connected disability caused the death or substantially or materially contributed to it. 38 U.S.C. §§ 1310, 1312; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal (primary) cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to it. 38 C.F.R. § 3.312 (b). A service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided the production of death. 38 C.F.R. § 3.312 (c)(1). The debilitating effects of a service-connected disability must have made a veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. Lathan v. Brown, 7 Vet. App. 359 (1995). During the Veteran’s lifetime, service connection was in effect for the following disabilities: residuals of fragment wounds, right forearm and wrist; residuals of fragment wounds, right shoulder; hypertrophic arthritis, lumbar spine; and bronchitis. The death certificate listed liver failure due to liver cancer as the Veteran’s cause of death. The Veteran was not service-connected for liver failure or liver cancer at the time of his passing. Nonetheless, DIC entitlement may be shown if the requirements of service connection are met for the cause of death. Generally, service connection will be granted if the evidence demonstrates (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310 (b). There is a presumption of service connection for certain chronic diseases, including certain types of cancers, if the disease manifested in service or to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service in the Republic of Vietnam is documented by service personnel records. See DD-214. A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed to an herbicide agent, unless affirmative evidence shows otherwise. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a). Based on such exposure, certain diseases, such as certain types of cancers, will be presumed to be service-connected, even though there is no record of the disease during service. 38 U.S.C. § 1116 (a); 38 C.F.R. § 3.309 (e). An April 2006 private treatment record reveals that the Veteran complained of abdominal pain. A May 2006 MRI revealed masses on the Veteran’s liver, which were interpreted as being most consistent with diffuse metastatic disease. A May 2006 liver biopsy revealed small cell neuroendocrine carcinoma of unknow primary site. The Veteran was diagnosed with hepatic adenocarcinoma likely to be metastatic from an unknown primary source. The Veteran was presumptively exposed to an herbicide agent based on service in Vietnam. The Board notes that the Veteran had a previous diagnosis of prostate cancer in June 1999; however, the Veteran never submitted a service-connection claim for this disability during his lifetime. The Appellant has submitted several medical treatises suggesting a link between the Veteran’s liver cancer and herbicide exposure through similarities between the Veteran’s previous prostate cancer and his subsequent liver cancer. However, there is no medical etiology opinion in the Veteran’s claims file demonstrating that the Veteran’s liver cancer was caused by in-service herbicide exposure. As such, the Board is not competent to find that the Veteran’s liver failure due to liver cancer was, or was not, due to his military service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this case, where the immediate cause of death is listed as liver failure due to liver cancer, a VA medical opinion is needed to address the likelihood that the Veteran’s liver cancer was due to herbicide exposure in-service. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Appellant’s entitlement to DIC under 38 U.S.C. § 1318 is inextricably intertwined with the DIC claim based on service connection for the Veteran’s cause of death; therefore, the Board finds that this DIC claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion on the nature and etiology of the Veteran’s liver cancer from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file, including a copy of this remand. Based on a review of the record, the examiner must address the following: a. Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s liver cancer was caused by the Veteran’s active duty service, to include as due to herbicide exposure? b. Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s liver cancer was caused or permanently worsened (aggravated) by the Veteran’s service-connected disabilities? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that aggravation is defined as “any increase in disability.” Allen v. Brown, 7 Vet. App. 439, 448 (1995). In answering the above requested questions, the examiner is to specifically address the relevancy of the following treatises submitted by the Appellant: “Metastatic patterns of prostate cancer: an autopsy study of 1,589 patients;” “The role of P501S and PSA in the diagnosis of metastatic adenocarcinoma of the prostate;” “Immunohistochemical markers of prostate carcinoma, including prostate-specific membrane antigen (PSMA);” “NKX3.1 as a marker of prostatic origin in metastatic tumors;” “Neuroendocrine differentiation of prostate cancer: a review;” “The Treatment Challenges of Neuroendocrine Prostate Cancer;” “Liver metastases in prostate carcinoma: clinical characteristics and outcome.” See November 2016 Medical Treatment Record – Non-Government Facility. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel