Citation Nr: 20008281 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 16-24 845A DATE: January 31, 2020 ORDER As new and material evidence has been received, the claim for entitlement to service connection for the cause of death is granted to this extent only. REMANDED Entitlement to service connection for the cause of death is remanded. FINDINGS OF FACT 1. A February 2013 rating decision denied entitlement to service connection for the cause of death; the Appellant did not appeal the denial in a timely manner, and no new and material evidence was submitted within the appeal period as to the issue. 2. Evidence received since the final February 2013 rating decision is new, relates to an unsubstantiated fact necessary to substantiate the claim for entitlement to service connection for the cause of death, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW The criteria for reopening the claim of entitlement to service connection for the cause of death have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1961 to October 1965, and from October 1965 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in May 2019 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. New and Material 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for the cause of death The Appellant submitted her original claim for entitlement to service connection for the cause of death in May 2012. A rating decision denying the Appellant’s claim for service connection was issued by the RO in February 2013. As the Appellant did not file a timely notice of disagreement, the February 2013 rating decision became final. In April 2014, the Appellant filed a subsequent claim to reopen. In a June 2014 rating decision, the RO determined that no new and material evidence had been received substantiating the Appellant’s claim, to include the contention that the USS Hornet had been placed on the list for “muddy waters” in Vietnam. As to the RO’s June 2014 determination that new and material evidence has not been received to warrant a reopening of the Veteran’s claim of entitlement to service connection for the cause of death, the Board must review that question for itself on appeal. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 U.S.C. § 3.156 (a). Evidence is “new” if it has not been previously submitted to agency decision makers. Id. Evidence is “material” if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already 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. Id. When determining whether a 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); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence received since the June 2014 rating decision includes a September 2019 private medical nexus opinion stating that the Veteran’s condition of multiple myeloma cancer, that which is listed as being the cause of death on his death certificate, is at least as likely as not related to the Veteran’s active duty military service, namely the Veteran’s alleged exposure to asbestos while stationed aboard the USS Hornet (CVS-12). See January 2013 Death Certificate. The medical opinion relates to an unestablished fact of an in-service event, injury, or disease, as well as a medical nexus linking the claimed for cause of death condition to an in-service event, and therefore triggers the VA Secretary's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For this reason, the Board finds that the additional evidence is new and material, and therefore warrants the reopening of the Appellant’s claim for entitlement to service connection for the cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for the cause of death is remanded. Regarding the Appellant’s herbicide exposure theory of entitlement to service connection, associated with the Veteran’s claims file is a March 2012 Statement in Support Claim from an accredited representative of the Florida Department of Veterans’ Affairs stating that the Veteran served aboard the USS Hornet Aircraft Carrier (CVS-12) just off the coast of the Vietnam. The Veteran’s military personnel records confirm that he had active duty service aboard the USS Hornet CVS-12. See DD Form 214. Here, the Board notes that, recently, the United States Court of Appeals for the Federal Circuit ruled that service “in the Republic of Vietnam” as used here includes service in the territorial waters of Vietnam, which extend 12 miles from the shore. Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). In this case, the Board finds that Procopio is implicated; however, the record remains unclear as to whether the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam. Accordingly, and in light of the Federal Circuit’s recent ruling, the Board finds it necessary for the Agency of Original Jurisdiction (AOJ) to obtain corroborating evidence that the Veteran served within the territorial waters of Vietnam, which extend 12 miles from shore, while serving aboard the USS Hornet (CVS-12). The September 2019 private medical opinion does not contain a rationale for the opinion. However, the low threshold of the McLendon standard has been met in this instance, and a VA opinion regarding the claim based on asbestos exposure should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Verify the location of the USS Hornet (CVS-12) during the Veteran’s service aboard that ship, to include a determination of whether the Veteran served in the territorial waters of Vietnam, i.e. within 12 nautical miles from the Republic of Vietnam. Note that the Veteran was awarded the Vietnam Service Medal for service aboard the USS Hornet (CVS-12) from October 12, 1965 to November 1, 1965. See June 14, 1966 military personnel record. 2. The AOJ should prepare a formal memorandum for the claims file outlining the steps taken to verify the Veteran’s presence in the territorial waters of Vietnam, and all responses received to the AOJ’s efforts to establish this information. 3. Obtain a VA medical opinion to ascertain the likely etiology of the Veteran's multiple myeloma. The claims file must be made available to the examiner for review. After review of the claims file, the examiner is asked to provide an opinion whether the Veteran's multiple myeloma is at least as likely as not the result of exposure to asbestos while in service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.