Citation Nr: 19158018 Decision Date: 07/25/19 Archive Date: 07/25/19 DOCKET NO. 15-40 695 DATE: July 25, 2019 ORDER New and material evidence to reopen the previously denied claim for service connection for the cause of the Veteran’s death has not been submitted; the claim is denied. FINDING OF FACT 1. A March 2007 Board of Veterans’ Appeals (Board) decision denied service connection for the cause of the Veteran’s death on the grounds that there was no evidence of a causal link between the esophageal adenocarcinoma that is the immediate cause of death cause and active service or between the immediate cause of death and service-connected malaria; and that the Veteran did not have a permanent total service-connected disability in effect at the time of his death. 2. Evidence associated with the claims file since the March 2007 Board decision that denied service connection for the cause of the Veteran’s death is cumulative or redundant of evidence previously considered and is not material. CONCLUSION OF LAW 1. The March 2007 Board decision is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2018). 2. The criteria to reopen the claim of entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 5108, 7103, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army on active service from June 1968 to June 1971. He served in Vietnam from March 1969 to September 1969, and was awarded the Combat Infantryman Badge. This appeal comes before the Board of Veterans Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) St. Paul Pension Management Center (PMC) in St. Paul, Minnesota. In March 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. A finally adjudicated claim shall be reopened and reviewed if new and material evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Id. at 118, 124. The most recent final decision of record is an March 2007 Board decision denying service connection for the cause of the Veteran’s death on the bases that (1) esophageal adenocarcinoma that is the immediate cause of death cause was not manifest during service, was not manifest within one year of separation and was not otherwise attributable to service to include exposure to herbicides including Agent Orange during active service; (2) that service-connected malaria, rated as non-compensable at the time of the Veteran’s death, was not the immediate or underlying cause of the Veteran’s death, was not etiologically related to the cause of death; did not contribute substantially or materially to the cause of the Veteran’s death, and was not of such severity that it resulted in debilitating effects and a general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease causing death; and (3) that the Veteran did not have a permanent total service-connected disability in effect at the time of his death, and it is not established that his death was due to a service-connected disability. Evidence at the time of the 2007 Board decision consisted of service records which establish the Veteran served in combat in Vietnam as an infantryman, and is therefore presumed to have been exposed to herbicides, including agent orange; the death certificate which identified esophageal adenocarcinoma as the immediate cause of death with onset two years prior to death; and private medical records (PMR) and a 2002 private medical statement which shows the Veteran was treated for esophageal cancer. The 2002 medical statement further described the esophageal adenocarcinoma as unusual in that it was located in the proximal portion of the esophagus at the pharyngeal esophageal junction rather the distal esophagus where the adenocarcinoma would usually occur. See March 2002 Medical Statement of R.A.S., M.D. Also of evidence at the time of the 2007 Board decision are the 2005 and 2006 VA medical opinion and addendum which, in aggregate, found no connection between the esophageal adenocarcinoma which caused the Veteran’s death and his active service, to include exposure to herbicides; between the Veteran’s death and any other incident or event of active service; or between the Veteran’s death and the service-connected malaria, which had been evaluated as noncompensable from 1971 and at the time of his death. Since March 2007, the appellant has testified before the undersigned as to the unusual nature of the Veteran’s adenocarcinoma, describing that the cancer was found in the upper neck. The appellant further testified that the Veteran died at a young age and that one of the physicians stated that medical staff were seeing a lot of young men with his type of cancer. The Veteran had no family history of esophageal cancer. The appellant also testified that their first child died and, in her October 2015 substantive appeal stated that their daughter has one kidney and other medical problems that are due to the Veteran’s exposure to herbicides, including agent orange. The testimony and details concerning her daughter were offered apparently in evidence of the Veteran’s exposure to agent orange. See March 2019 Board Hearing Transcripts; October 2015 Substantive Appeal. The appellant’s testimony rearticulated the allegations and theories regarding a causal link between the esophageal adenocarcinoma and the Veteran’s active service. Her description of the unusual nature of the Veteran’s esophageal adenocarcinoma, his age at death, his family history with regard to cancer was known at the time of the 2007 Board decision and considered in 2005 and 2006 VA opinion and addendum. Also of record at the time of the 2007 Board decision were a 2003 medical statement concerning the medical condition of the daughter of the appellant and the Veteran, and medical records concerning her treatment. Finally, the Veteran’s exposure to herbicides, including Agent Orange, was conceded by VA and considered by the VA examiner who provided the 2005 and 2006 opinion and addendum and by the Board in its 2007 decision. Therefore, while the appellant’s testimony is new in that it was not of record at the time of the March 2007 Board decision, the information that she provided had already been considered in different form in the previous decision. In particular, the appellant’s statements that the Veteran’s esophageal adenocarcinoma is the result of exposure to agent orange are insufficient to establish a causal link between the esophageal adenocarcinoma and exposure to herbicides without medical evidence establishing the same. This is because the cause of cancer is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Esophageal adenocarcinoma is not on the list of presumptive cancers in exposures to herbicides, including agent orange. Thus, absent medical evidence of a causal link between the esophageal adenocarcinoma that is the immediate cause of the Veteran’s death and active service, the appellant’s statements alone cannot be material. The appellant has not presented any medical or other evidence which has not previously been considered that addresses the unestablished fact of a causal link, or nexus, between the Veteran’s death from esophageal adenocarcinoma, and his active service. Thus, the Board cannot find that the evidence received since the 2007 Board decision, including the appellant’s 2019 testimony, to be new and material within the definition of the regulations. New and material evidence not having been received, the previously denied claim is not reopened. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, 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.