Citation Nr: 1817235 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-06 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for diabetes mellitus (diabetes), for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vermont Office of Veterans Affairs ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from November 1963 to May 1968 and July 1968 to April 1973. He died in June 2007. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In March 2011, the appellant requested a Board hearing. In June 2011 and July 2011, she received notification that a hearing was scheduled for July 18, 2011. Unfortunately, she did not appear at the hearing, and has neither requested a new hearing, nor provided good cause for her absence. As such, the appellant's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 (2017). In April 2017, the Board remanded the appellant's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDINGS OF FACT 1. An August 2004 rating decision denied the Veteran's claim of entitlement to service connection for diabetes; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision, and evidence obtained since the August 2004 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for diabetes. 2. The Veteran died in June 2007. The certificate of death lists the cause of death as cardiac shock and coronary artery disease with other significant conditions of respiratory failure and diabetes. 3. At the time of his death, the Veteran was not service connected for any disabilities. CONCLUSIONS OF LAW 1. The August 2004 rating decision which denied entitlement to service connection for diabetes is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. New and material evidence has not been submitted, and the claim for service connection for diabetes is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the appellant of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to a claim for Dependency & Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VA's notice requirements include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was notified of the required information in letter dated in January 2011. Furthermore, neither the appellant, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of this claim at this time is warranted. Here, while a VA examination was not provided, one is not needed. Here, there is no allegation or evidentiary suggestion that the Veteran's cardiac shock or coronary artery disease began in service or within a year of separation. In addition, the appellant asserts that the Veteran's diabetes was due to his herbicide agent exposure. Unfortunately, exposure to herbicide agents has not been shown, and thus, a medical professional would have nothing to base service connection on. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. Reopening Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In June 2004, the Veteran filed a claim seeking service connection for diabetes, which he asserted was due to herbicide agent exposure during his active service. The claim was denied in an August 2004 rating decision, and the Veteran neither appealed the rating decision, nor submitted any new and material evidence pertaining to this issue within a year of that rating decision, meaning that the rating decision became final. See 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). At the time of the August 2004 rating decision, the evidence of record did not contain competent lay or medical evidence did not show the Veteran had herbicide agent exposure. As such, the RO denied his claim. In a statement received in February 2007, the Veteran sought to have his previously denied claim for entitlement to service connection for diabetes reopened. He continued to report that his diabetes was due to herbicide agent exposure during his active service. Unfortunately, he died in June 2007. His widow has continued the appeal as his appropriate substitute. A review of the Veteran's service records show that he served on the U.S.S. Bordelon from November 1964 to November 1967, on the U.S.S. Luce from November 1967 to April 1968, and on the U.S.S. Hollister from June 1969 to June 1970. The Veteran reported that while aboard the U.S.S. Hollister, missions took him near the coast of Vietnam. However, he made no assertions that he went ashore during any of these trips. In February 2018, the appellant's representative asserted that he was exposed to herbicide agents due to water contamination. VA maintains a list entitled: "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents." None of the ships the Veteran served on are contained on the ship list, and as such, he is not eligible for the presumption of herbicide agent exposure. The Board remanded the claim multiple times in order to review the deck logs. In December 2017, the National Archives and Records Administration reported that the deck logs of the Hollister showed that it investigated an abandoned watercraft in the Tonkin Gulf, but otherwise there were no references of the Hollister putting into a Vietnamese harbor while the Veteran was aboard. Recently, the appellant's representative asserted that the Veteran was exposed to herbicide agents through contaminated water on ship. However, the representative has not submitted any specific evidence of exposure to herbicides on the U.S.S. Hollister. Presumably, the appellant has asserted exposure through the water evaporators on the ship retaining traces of herbicide agent. However, as discussed above, the record contains no evidence that the Hollister ever entered the brown waters of Vietnam. Indeed, the representative reported that the Veteran was a blue water veteran. As the Hollister did not enter the inland waterways of Vietnam and instead operated in the offshore waters of Vietnam, the assertion of exposure to herbicides via contaminated water from a ship that is not considered to have entered the inland waterways of Vietnam is too attenuated to establish actual herbicide exposure. While the appellant has submitted treatises regarding exposure to herbicide agents, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In the present case, the treatise evidence submitted by the appellant is not accompanied by the opinion of any medical expert. The record contains no competent evidence of herbicide agent exposure besides the Veteran's own lay statements. The appellant has not submitted any competent medical evidence supporting the Veteran's assertion of herbicide agent exposure. Moreover, a layperson's assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure to a tactical herbicide agent. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). As such, the Veteran's assertions that he had exposure to herbicide agents during service, is insufficient to establish such exposure. The Board does not doubt the sincerity of the belief by the Veteran and the appellant that he Veteran was exposed to herbicide agents while aboard the Hollister. Unfortunately, the Board finds that these assertions do not constitute credible evidence of herbicide agent exposure during the course of his duties in active service, particularly in light of the service department findings regarding his ships. As such, after a complete review of the evidence, the record contains no new competent medical or lay evidence dated after August 2004, beyond the Veteran's and the appellant's assertions, which are cumulative of those previously considered, to suggest that the Veteran's diabetes was due to herbicide agent exposure. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described no new and material evidence has been added since the June 2004 rating decision. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Essentially, even if the Board reopened the claim, no duty to assist would be triggered, since the medical opinion that has been obtained was negative. Accordingly, the claim to reopen the previously denied claim of service connection for diabetes is denied. Cause of Death In August 2007, the appellant filed claim for service connection for the cause of the Veteran's death, which was denied by a May 2009 rating decision. The appellant has appealed. For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. In the absence of such evidence, the regulations require a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.310(a), 3.312. With respect to the principal cause of death, VA regulations provide that a "service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Id. The Veteran died in June 2007. His death certificate identified the cause of his death as cardiac shock and coronary artery disease with other significant conditions of respiratory failure and diabetes. At the time of his death, the Veteran had no service connected disabilities. As such, the Veteran had no service connected disabilities at the time of his death. Based on the evidence of record, the Board finds that a service-connected disability was not the principal cause of death. Accordingly, the claim for service connection for the cause of the Veteran's death is denied. ORDER New and material evidence has not been presented, and the claim for entitlement to service connection for diabetes is not reopened. Service connection for the cause of the Veteran's death is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs