Citation Nr: 20006503 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 18-39 367 DATE: January 29, 2020 ORDER New and material evidence having not been submitted, the petition to reopen the claim of entitlement to service connection for a bilateral leg disorder for the purposes of accrued benefits is denied. Entitlement to service connection for glioblastoma, to include as due to exposure to Agent Orange, for the purposes of accrued benefits is denied. Entitlement to death pension is denied. REMANDED Entitlement to death and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is remanded. Entitlement to service connection for cause of the Veteran's death is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in June 2006, the RO denied service connection for a bilateral leg disorder. The Veteran was notified of the decision but did not file a notice of disagreement. 2. Evidence added to the record since the final June 2006 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a bilateral leg disorder. 3. The Veteran served in Korea during the Vietnam War, but the evidence does not support a finding that he was stationed in or near the demilitarized zone (DMZ). 4. Glioblastoma did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 5. The appellant’s countable income for the period pertinent to the claim exceeded the maximum annual income for pension benefits. CONCLUSIONS OF LAW 1. The June 2006 RO decision that denied the claim of entitlement to service connection for a bilateral leg disorder is final. 38 U.S.C.§ 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim for service connection for a bilateral leg disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § § 3.156 (a) (2018). 3. The criteria for service connection for glioblastoma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for non-service-connected death pension benefits are not met. 38 U.S.C. §§ 1521, 1541, 1543 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1968. Regrettably, in March 2013, the Veteran died during the pendency of his appeal. At this juncture, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated. His wife has been substituted as the proper appellant in the appeal. The Board notes that at the time of the Veteran’s death, he had filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). However, to date, the RO has not adjudicated the claim and therefore, the Board does not have jurisdiction over it. Thus, the claim for service connection for PTSD for the purposes of accrued benefits is referred to the Agency of Original Jurisdiction (AOJ) for adjudication in the first instance. New and Material Evidence 1. Bilateral leg disorder The Veteran’s claim of entitlement to service connection for a bilateral leg disorder was previously denied in a June 2006 rating decision. The Veteran did not appeal this rating decision. As such, that decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In previously denying the Veteran’s claim for service connection for a bilateral leg disorder, diagnosed as chronic venous insufficiency, the evidence of record included available service treatment records that failed to show any complaints, treatment, or diagnoses for this disorder, or any other bilateral leg disorder; VA and private treatment records dated through 2006 showing treatment for chronic venous insufficiency, edema, and varicose veins in the lower extremities (see September 2005 VA treatment record); a September 2001 letter from Dr. H.O. that indicated the ulcers on the right ankle “perhaps” began during the Veteran’s military service; and, the Veteran’s statements in support of this claim that his bilateral leg disorder is due to his military service. The RO denied the claim on the basis there was no evidence that supports a finding that the diagnosed bilateral leg disorders are due to his military service. Prior to his passing, the Veteran filed a petition to reopen this claim in September 2012, to now include as due to blood poisoning in service. The March 2013 rating decision continued the previous denial. The evidence received since the last prior final denial of the claim in June 2006 includes additional VA and private treatment records, a March 2013 VA examination using the acceptable clinical evidence (ACE) process, and, additional statements by the Veteran in support of his claim. The VA and private treatment records do not contain any evidence etiologically attributing the diagnosed leg disorders ot the Veteran’s military service and, instead, only note the continued treatment for the disorders. Further, the March 2013 VA examination confirmed the prior diagnosis of chronic venous insufficiency, but the examiner concluded that it is less likely than not this disorder is due to the Veteran’s military service. As rationale, the examiner stated there is no clinical evidence of systemic blood poisoning during service, and there is no documented evidence of a peripheral vascular problem within a year of separation from the military. Further, the examiner noted the Veteran’s long-standing history of the claimed disorders, but also his history of 29 years of smoking 2 pack of cigarettes a day, and working for many years on his feet as a machinist. The examiner stated that these are prominent risk factors for him to develop varicose veins and venous insufficiency in his legs. As alluded to, the Veteran has raised a new etiological theory (bilateral leg disorder as due to blood poisoning) to reopen his claim in his September 2012 application. However, a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 1999 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, such evidence has not been presented. The evidence is not new and material and therefore reopening the claim for service connection for a bilateral leg disorder is not warranted. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. Service Connection 2. Glioblastoma, to include as due to exposure to Agent Orange The Veteran, prior to his death in March 2013, contended that his diagnosed glioblastoma is due to his military service and, specifically, as a result of exposure to Agent Orange while stationed in Korea. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including brain cancer, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. § 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, there is no evidence the Veteran was diagnosed with brain cancer within one year of separation from service. In fact, the evidence of record shows the Veteran was diagnosed with glioblastoma in June 2012. See June 2012 Private Treatment Record. Additionally, neither the Veteran nor the appellant have argued continuity of symptoms since service. As such, service connection is not warranted on either of those bases. Alternatively, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § § 3.307 (a)(6)(iii). Similarly, a Veteran who served on active duty between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307 (a)(6)(iv). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Those diseases include brain cancer. Here, however, the RO has determined that there is insufficient evidence to support a finding the Veteran was exposed to Agent Orange while stationed in Korea. See June 2018 Formal Finding Memorandum. The Veteran’s military personnel records show he served in Korea from April 1967 to May 1968, and was assigned to Headquarters Battery 6th Battalion 80th Artillery. Nevertheless, the Veteran did not put forth any arguments as to how he was exposed to Agent Orange prior to his death in March 2013 and, to date, the appellant has not offered any arguments in support of this contention. Therefore, absent a finding that the Veteran’s unit was stationed on or near the DMZ, herbicide exposure may not be conceded. VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure but must also determine whether the disability was otherwise the result of active service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Board concludes that, while the Veteran had a diagnosis of glioblastoma (brain cancer) during the appeals period, the preponderance of the evidence weighs against finding that the diagnosed disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As noted above, the June 2012 private treatment record noted the Veteran’s diagnosis. Further, additional treatment records note the diagnosis and treatment for the disorder, but none of these records include an etiological opinion attributing the diagnosed glioblastoma to the Veteran’s military service. While the Veteran was competent to report having experienced symptoms of pain and other side effects resulting from his brain cancer following service, he is not competent to provide a diagnosis in this case or to attribute this disorder to his military service. This issue is also medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing, such as MRI findings. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board also notes that the appellant submitted medical treatise evidence showing a correlation between brain cancer and Agent Orange exposure, a fact which is not contested. While medical treatise evidence can, in some circumstances, constitute competent medical evidence (see 38 C.F.R. § 3.159 (a)(1) (stating that competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses), both Federal regulation and case law preclude granting service connection predicated on a result of speculation or mere possibility. 38 C.F.R. § 3.102; see Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (a medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between sickle cell anemia and the veteran’s fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran’s death). The Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discussed 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 medical opinion. Sack v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, however, the appellant has failed to submit evidence showing that the Veteran was in an area on or near the DMZ so as to establish that he was, in fact, exposed to Agent Orange. Instead, the medical treatise evidence presented merely notes the correlation between brain cancer and Agent Orange exposure, generally. Accompanying this medical treatise evidence is a September 2018 statement from Dr. M.S. that purports to link the Veteran’s brain cancer to Agent Orange exposure. Again, while the statement provided by Dr. M.S. affirmatively shows there is a correlation between brain cancer and Agent Orange exposure, as expressed in the medical literature, Dr. M.S. fails to state how the Veteran was exposed to Agent Orange. There are no specific statements as to the location of the Veteran’s unit, or actions by the Veteran that would support a finding he was on or near the DMZ while stationed in Korea. Instead, Dr. M.S. concludes that the Veteran had glioblastoma and, therefore, was exposed to Agent Orange. As no rationale for the opinion was provided, it is not afforded any probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Further, the appellant’s attorney submitted a prior Board decision pertaining to a different Veteran, whom he represented. Of note, previous Board decisions are not binding on the Board, unless the previous Board decision(s) specifically addressed this particular Veteran’s case. See 38 C.F.R. § § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The Board acknowledges that the Veteran was not provided with a VA compensation examination addressing his service connection claim during his lifetime. Regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In service-connection claims, such as is the case here, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, a remand for a medical opinion (as an examination of the Veteran is medical impossibility) is necessary to adjudicate the appellant’s service-connection claims. As noted in the discussion above, there is no indication of an injury or other incident in service resulting in the claimed disorder. Therefore, a remand is not required. 38 C.F.R. § § 3.159(c)(4); McLendon, supra. In sum, while the appellant’s claim meets prong (1) a current disability, it fails at prongs (2) and (3), as there is no in-service occurrence and there is no nexus between the Veteran’s diagnosed glioblastoma and his active service. In light of the above, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not for application. Accordingly, the claim of entitlement to service connection for glioblastoma for the purposes of accrued benefits must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Death Pension Benefits The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § § 3.271(c). Unreimbursed medical expenses will be excluded when certain requirements are met. 38 C.F.R. § 3.271(g). Basic entitlement to such pension exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. § 1521(a), (b) (2018); 38 C.F.R. § 3.3(a)(3), see 38 C.F.R. § 3.21 (2018). The MAPR is adjusted from year to year. If the appellant’s income is less than the MAPR, VA will pay benefits to bring her income up to that level. The appellant’s income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “in excess of 5 percent of the applicable maximum annual pension rate... in effect during the 12-month annualization period in which the medical expenses were paid.” See 38 C.F.R. § 3.272 (g)(1)(iii); 38 U.S.C. § 1503 (a)(8). The Veteran served on active duty from August 1966 to May 1968. As he served for 90 days or more, including during a period of war, the appellant, his surviving spouse, is eligible for nonservice-connected death pension benefits provided she meets the required income and net worth requirements noted above. As pertinent to this case, for a nonservice-connected death after separation from service, where a claim is received on or after December 10, 2004, the effective date for an award of pension will be the first day of the month in which the Veteran’s death occurred if the claim is received within one year after the date of death; otherwise, the effective date is the date the claim was received. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (c)(3). The appellant’s claim was received in May 2013, within one year of the Veteran’s death in March 2013. Hence, for her claim for death pension, the initial annualization period in which income will be counted extends from the date of alleged entitlement, i.e., the Veteran’s date of death of March 17, 2013 through the end of the month that is 12 months after that date, i.e., March 30, 2014. The August 2016 decision indicated that death pension benefits could not be granted because the appellant’s income exceeded the income limit of $9, 861 for a surviving spouse with no dependents. The income limits, or MAPR, are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. The rates of death pension benefits are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 (M21-1) and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. Effective from March 2013, the MAPR for a surviving spouse without dependents was $8,359, with medical expenses exceeding $417 as permitted deductibles (i.e., 5 percent). See Survivor’s Pension Rate Tables, Part I, Appendix B, M21-1. As of December 1, 2013, she would be eligible for death pension benefits if her countable income was less than $8,359.00; five percent of this amount is $424.00. Effective December 1, 2014, she would be eligible for death pension benefits if her countable income was less than $8,630.00; five percent of this amount is $431.00. Effective December 1, 2016, the MAPR for pension was raised to $8,656.00; five percent of this amount is $432.00. Effective December 1, 2017, the MAPR for pension was raised to $8,830.00; five percent of this amount is $442.00. Finally, effective December 1, 2018, the MAPR for pension was raised to $9,078.00; five percent of this amount is $453.00. See https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp. Evidence from the Social Security Administration (SSA) notes that the appellant received $10,057.80, with expenses paid to Medicare in the amount of $1,258.00. Thus, calculation of total income reflects that the appellant’s total income for the immediate 12 months following the death of the Veteran was $8,799.80. For 2014, the appellant received $1,588.90 each month from SSA, with expenses paid to Medicare in the amount of $2,164.80. Her total income was $16,902. For 2015, the appellant received $1,614.90 each month from SSA, with expenses paid to Medicare in the amount of $1,942.80. Her total income was $17,436. For 2016, the appellant received $1,614.90 each month from SSA, with expenses paid to Medicare in the amount of $1,606.80. Her total income was $17,772. For 2017, the appellant received $1,620.00 each month from SSA, with expenses paid to Medicare in the amount of $1,827.6. Her total income was $17,612.40. For 2018, the appellant received $1,653.00 each month from SSA, with expenses paid to Medicare in the amount of $2,091.60. Her total income was $17,744.40. These amounts exceed the MAPR for a surviving spouse with no dependents for each year in question. While the Board empathizes with the appellant’s loss of her husband and her financial difficulties, it is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2018). Given the available record regarding her countable income and exclusions, the Board concludes that the appellant is not entitled to payment of nonservice-connected death pension benefits because her income exceeds the statutory limits for entitlement to death pension benefits. Therefore, her claim of entitlement to nonservice-connected death pension benefits must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. DIC and cause of death As noted above, at the time of the Veteran’s death, he a had pending claim for service connection for PTSD. However, the RO has not yet adjudicated the matter and the Board has referred it to the RO for appropriate actions. Nevertheless, a determination on the referred claim could significantly impact a decision as to the pending claims for entitlement to DIC and service connection for cause of the Veteran’s death. As such, the issues are inextricably intertwined. Thus, a remand is required. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development regarding the pending claims of entitlement to service connection for PTSD for the purposes of accrued benefits. 2. Then, any further action deemed appropriate regarding the merits of the claims of entitlement to DIC benefits and service connection for cause of the Veteran’s death in light of the findings regarding entitlement to service connection for PTSD for the purposes of accrued benefits, should be undertaken. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.