Citation Nr: 1808808 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-14 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from December 1942 to January 1946. The Veteran died in November 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center. FINDINGS OF FACT 1. An unappealed March 1998 decisional letter denied the appellant dependency and indemnity compensation (DIC) based, in part, on a finding that the Veteran's death was not related to his service; the appellant initiated but did not perfect an appeal of a July 2009 rating decision that continued the denial. 2. Evidence received since the July 2009 rating decision includes medical evidence relating the cause of the Veteran's death to his service, relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating the claim. 3. A November 1997 autopsy report notes the cause of the Veteran's death was carcinomatosis; medical evidence reasonably shows that the Veteran's cancer was causally related to his exposure to asbestos in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for the cause of the Veteran's death may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA applies to the instant claim. However, inasmuch as this decision reopens and grants the claim, there is no need to belabor the impact of the VCAA on this matter, as any notice error or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis New and Material Evidence An unappealed March 1998 decisional letter denied the appellant DIC based, in part, on a finding that the Veteran's death was not related to his service; the appellant initiated but did not perfect an appeal of a July 2009 rating decision that continued the denial. The July 2009 rating decision is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The pertinent evidence of record in July 2009 consisted of the Veteran's death certificate and an autopsy report that show the cause of death was carcinomatosis, VA treatment records, and the appellant's lay assertions that the Veteran's cancer was due to environmental exposure in service. In a letter received in June 2012, a private physician opined it was more probable than not that the Veteran was exposed to asbestos aboard the USS Croatan in service and that that diagnosed bladder and colon cancer were related to asbestos exposure. She opined it was at least as likely as not that his death was due to asbestos exposure in service. As the January 2012 private opinion tends to relate the cause of the Veteran's death to service, the Board finds that the new evidence received relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating such claim. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Consequently, the additional evidence received is both new and material and warrants reopening of the claim of service connection for the cause of the Veteran's death. Service Connection The analysis proceeds to de novo review of the claim. The appellant is not prejudiced by the Board so proceeding (without returning the claim to the Agency of Original Jurisdiction (AOJ) upon reopening) because this decision grants the benefit sought. The death of a Veteran will be considered service connected when the evidence establishes that a service connected disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). VA treatment records show bladder and colon cancer were diagnosed in 1994. The Veteran's cancer metastasized to his liver and lungs. A November 1997 autopsy report notes the cause of the Veteran's death was carcinomatosis The appellant contends the carcinomatosis was due to exposure to asbestos in service. The Veteran's service personnel records show that he served aboard the USS Croatan during World War II and that his military occupational specialty (MOS) was storekeeper. According to VA's Adjudication Procedures Manual (M21-2), varieties of asbestos were used extensively in military ship construction during the World War II era. See M21-1, Part IV.ii.2.C.2.e. The applicable section of the manual also reflects that the Navy MOS of storekeeper had a minimal risk of exposure to asbestos, but that if an MOS is listed as minimal, probable, or highly probable, asbestos exposure should be conceded. See M21-1, Part IV.ii.1.I.3.d. and Part IV.ii.1.I.3.f. Accordingly, what remains for consideration is whether there is probative affirmative evidence that establishes that the Veteran's carcinomatosis that first manifested in the bladder and colon was related to his service, including as due to his acknowledged exposure to asbestos therein. Notably, the Procedural Manual notes that specific diseases that may result from exposure to asbestos including gastrointestinal cancer, urogenital cancer, and lung cancer. See M21-1, Part IV.ii.2.C.2.C. In a letter received in June 2012, a private physician outlined the Veteran's medical history and noted he died with a diagnosis of carcinomatosis. She opined it was more probable than not that the Veteran was exposed to asbestos while serving on the USS Croatan and that that the diagnosed bladder and colon cancer were related to asbestos exposure. She explained that there was a prevalence of exposure to asbestos among World War II-era Navy veterans and that such exposure can cause cancer to the lungs, gastrointestinal tract, and urogenital system. She also noted there is no definitive incubation period between exposure and development of cancer. Thus, the bladder and colon cancer could both be accounted for as due to the exposure to asbestos. She opined it was at least as likely as not that his death was due to exposure to asbestos in service. The Board finds the opinion, which is supported by the guidance of the VA Procedural Manner, to be highly probative evidence in this matter. There is no competent opinion in the record to the contrary. Resolving any remaining reasonable doubt in the appellant's favor (as required under 38 C.F.R. § 3.102), the Board finds that the Veteran died of carcinomatosis, which probative evidence of record reasonably shows was causally related to his acknowledged exposure to asbestos in service. As service connection was warranted for the disease that caused his death, all of the requirements for substantiating the claim of service connection for the cause of his death are met, and service connection for the cause of the Veteran's death is warranted. ORDER The claim of service connection for the cause of the Veteran's death is reopened; service connection for the cause of the Veteran's death is granted on de novo review. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs