Citation Nr: 20071346 Decision Date: 11/04/20 Archive Date: 11/04/20 DOCKET NO. 19-30 200 DATE: November 4, 2020 REMANDED Entitlement to service connection for the cause of death of the Veteran is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1965 to December 1967, including verified service in the Republic of Vietnam during the Vietnam Era from June 1966 to July 1967. He died in August 1981. The appellant is his widow. This appeal arises from the AOJ’s November 2018 rating decision and notice of decision, denying DIC under 38 U.S.C. § 1318, and finding no new and material evidence to reopen a previously denied claim for service connection for the Veteran’s cause of death. Following a timely notice of disagreement (NOD), the AOJ issued an August 2019 Statement of the Case (SOC) on 2 issues: (1) entitlement to DIC under 38 U.S.C. § 1318; and (2) new and material evidence to reopen the claim for service connection for cause of death. The appellant submitted a timely substantive appeal on a VA Form 9 in October 2019. Although the appellant marked a box on VA Form 9 that stated “I am only appealing these issues”, nonetheless, she did not actually indicate any issue she did not wish to appeal on either this form or in subsequent correspondence. Thus, the Board takes jurisdiction of both issues listed in the SOC. By history, the RO’s October 1981 decision denied the Veteran’s claim for service connection for the cause of death of the Veteran, as due to possible herbicide exposure. On appeal, a final and binding May 1983 Board decision denied service connection for the cause of the Veteran’s death, finding that the Veteran’s terminal condition of acute hemorrhagic pancreatitis was not related to service, including as due to exposure to Agent Orange; however, there was no consideration of diabetes as a cause of the Veteran’s death. Upon a request for reconsideration, an August 1984 Board panel decision found no obvious error in the May 1983 decision, and affirmed the prior May 1983 Board decision. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1100, 20.1104. The appellant presently contends that the Veteran developed diabetes prior to his death due to exposure to Agent Orange as a Vietnam Veteran, and that diabetes was a contributory cause of the Veteran’s death. Generally, “new and material evidence” is required to reopen a previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). However, in this case, there is a liberalizing law that creates a new evidentiary standard for which a claim of entitlement to service connection for Type 2 diabetes mellitus can be substantiated under 38 C.F.R. § 3.309 (e). Diabetes mellitus was added to the list of diseases presumed to be caused by exposure to an herbicide agent, such as Agent Orange under 38 C.F.R. § 3.309 (e), effective May 8, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). A regulation change of this nature requires de novo review of the underlying claim. See Spencer v. Brown, 4 Vet. App. 283 (1993), aff’d, 17 F.3d 368 (Fed. Cir. 1994) (When a law or regulation creates a new basis for establishing entitlement to benefits, a claim for service connection that asserts the new basis/theory of entitlement is a new claim that is “legally and factually distinct from the former claim,” even if the claimed disease or injury is the same.). Thus, new and material evidence is not necessary to reach the merits of the claim. Id. 1. Entitlement to service connection for the cause of death of the Veteran is remanded. VA Medical Opinion on Cause of Death In this case, the Veteran’s death certificate shows his immediate cause of death in August 1981 was acute hemorrhagic pancreatitis, without mention of any contributory causes of death. However, as noted, the appellant contends that the Veteran developed diabetes prior to his death due to exposure to Agent Orange as a Vietnam Veteran, and that diabetes was a contributory cause of the Veteran’s death. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disease or disability incurred in or aggravated by service either caused, contributed substantially or materially to cause, or aided or lent assistance to the production of death.  38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). A Veteran who, during active military, naval, or air service, served 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 during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases, such as Type 2 diabetes mellitus. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) and 3.309(e). The Veteran’s service personnel records, including his DD Form 214, verify his service in the Republic of Vietnam during the Vietnam Era, so he is presumed to have been exposed to herbicide agents during service. Importantly, the appellant has submitted a January 2019 private medical opinion by Dr. D.R., a treating physician for the Veteran, who opined, “The [Veteran] clearly had diabetes mellitus by virtue of loss of his pancreas. Unfortunately, his hectic illness allowed only a very short survival.” Dr. D.R. cited the Veteran’s highly elevated blood sugar levels in the weeks before his death, during his hospitalization for his terminal hemorrhagic pancreatis. A remand is necessary to obtain a VA medical opinion on the nature and etiology of the Veteran’s cause of death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. section 1318 is remanded. The requested development on the appellant’s cause of death claim is inextricably intertwined, since a grant of that claim could moot further consideration of her claim for DIC under 38 U.S.C. § 1318. As such, the Board will defer consideration of this issue until the AOJ readjudicates claim for service connection for the cause of the Veteran’s death. The matters are REMANDED for the following action: 1. Arrange for a qualified VA clinician to provide a medical opinion on the cause of the Veteran’s death. On review of the record, the examiner should provide an opinion on the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran had a diagnosable disability of diabetes mellitus, Type 2; and (b) If so, whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus caused, or substantially or materially contributed to, the Veteran’s death. The examiner must provide a complete rationale for any opinion expressed.   2. Defer readjudication of entitlement to DIC under 38 U.S.C. § 1318, pending readjudication of the claim for service connection for the cause of the Veteran’s death. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.