Citation Nr: 19192525 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 16-04 360 DATE: December 10, 2019 ORDER As new and material evidence has been submitted sufficient to reopen the previously denied claim for service connection for the cause of the Veteran’s death, the application to reopen the claim is granted. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. In a November 2012 rating decision, the Regional Office (RO) denied service connection for the cause of the Veteran’s death. The Appellant initiated an appeal of this decision and a January 2014 Statement of the Case (SOC) was issued. 2. The Appellant submitted an untimely substantive appeal (VA Form 9) to the January 2014 SOC and, therefore, the November 2012 rating decision became final. 3. Evidence received since the November 2012 rating decision relates to an unestablished fact necessary to substantiate the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death. CONCLUSIONS OF LAW 1. The November 2012 rating decision that denied entitlement to service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the November 2012 rating decision is new and material and serves to reopen the Appellant’s 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 on active duty July 1990 to May 1995, with additional active duty for training (ACDUTRA) service in the Army Reserves. She died in June 2012. The Appellant in this matter is her surviving spouse. In January 2019, the Appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The record was also held open for 60 days following the hearing to allow for the submission of additional evidence. During that time, the Appellant’s attorney submitted private medical bills. The Board acknowledges that in March 2019 and April 2019, the Appellant’s attorney requested an additional 90 days to submit additional evidence. Since then, no additional evidence has been received. Additionally, although no response was provided, the Appellant is not prejudiced by the Board proceeding in this case because the underlying service connection claim is being remanded herein. If he has any additional evidence to submit, he may do so then. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for the cause of the Veteran’s death. A claim that has been denied in an unappealed rating decision or an unappealed Board decision may not then 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). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In November 2012, the RO denied service connection for the cause of the Veteran’s death. The basis for the denial was that there was no evidence that the cause of the Veteran’s death was related to military service. See November 2012 Rating Decision. The Appellant initiated an appeal of that decision; however, he did not file a timely substantive appeal to the January 2014 SOC that was subsequently issued. See March 2014 formal appeal. In August 2014, the Appellant was advised VA could not accept this March 2014 formal appeal as timely. Although he initiated an appeal of that decision, he did not file a substantive appeal to the April 2015 SOC addressing the timeliness of his formal appeal. Therefore, the November 2012 rating decision is final. The Agency of Original Jurisdiction (AOJ) construed the May 2015 claim, as a claim to reopen the Appellant’s previously denied claim for service connection for the cause of the Veteran’s death. The evidence received since the November 2012 rating decision includes a June 2012 VA autopsy report and a January 2019 Board hearing transcript. This evidence is new as it was not previous considered by the VA and it is material insofar as it suggests a new theory of entitlement. As such, the Appellant’s claim is reopened. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. The Appellant contends that the cause of the Veteran’s death is related to a hysterectomy the Veteran had during her active duty service. See January 2019 Board Hearing Transcript. Although the Veteran’s service treatment records are unavailable, private medical records reflect the Veteran’s reports that she had a hysterectomy in her 40s (1993). See November 2009 Wellstar Cobb Hospital records. These records also indicate she had a surgery for a bowel obstruction in 2001 and a surgery for a bowel obstruction with chronic enterocutaneous fistula in 2009. Id. In 2009, she was diagnosed with sepsis secondary to the enterocutaneous fistula/small bowel obstruction. Id. Notably, it was determined that the bowel obstructions were due to complicating adhesions. See April 2012 Wellstar Kennestone Hospital. Furthermore, during the June 2012, VA autopsy report, the physician found that the Veteran was status post hysterectomy with dense abdominal adhesions and opined that the most likely cause of death was acute respiratory distress syndrome and multiorgan failure secondary to sepsis and disseminated intravascular coagulation. See June 2012 VA Autopsy Report. Thus, the foregoing evidence raises the questions of whether the Veteran had a hysterectomy during her active duty service and whether residuals from the hysterectomy surgery, to include abdominal adhesions, caused or contributed to the Veteran’s death. Accordingly, the Board finds that the current evidence of record is insufficient to adequately adjudicate the Appellant’s claim and remand is warranted for a VA medical opinion consistent with the directives herein. The Veteran’s private treatment records located in the claims file reflect additional/relevant treatment for abdominal problems in 2001 and 2009 at Parkway Hospital and Emory Adventist Hospital, respectively. See November 2009 Wellstar Cobb Hospital records. These records have not been requested or otherwise obtained. Accordingly, on remand, the AOJ should also attempt to obtain these records. See 38 C.F.R. § 3.159(c)(1). The matter is REMANDED for the following actions: 1. With the Appellant’s assistance, obtain any outstanding records of pertinent medical treatment from private health care providers, to include private treatment records from Emory Adventist Hospital and Parkway Hospital. All reasonable attempts to obtain such records should be made and documented. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Following the record development above, forward the claims folder to an appropriate VA examiner to opine as to the causes of the Veteran’s death. After a review of the Veteran’s claims folder, the examiner(s) should respond to the following: a) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran had a hysterectomy during her active duty service. b) If, and only if, the answer to paragraph (a) is positive, provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any hysterectomy residuals, to include abdominal adhesions, caused or materially contributed to the causes of the Veteran’s death, to include sepsis. In rendering these opinions, the examiner must specifically consider/discuss the private treatment records showing: (i) the Veteran’s reports for treatment that she had a hysterectomy in her 40s, (ii) a November 2009 diagnosis of sepsis secondary to the enterocutaneous fistula/small bowel obstruction, and (iii) an April 2012 treatment note that the bowel obstructions were due to complicating adhesions. The examiner must also consider/discuss the June 2012 VA autopsy report noting that the Veteran was status post hysterectomy with dense abdominal adhesions and that the most likely cause of death was acute respiratory distress syndrome and multiorgan failure secondary to sepsis and disseminated intravascular coagulation. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.