Citation Nr: 20072822 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 16-60 320 DATE: November 12, 2020 ORDER The petition to reopen the claim for service connection for the cause of the Veteran's death based upon receipt of new and material evidence is granted. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in January 2012. The primary cause of death was listed as pancreatic cancer with a contributing cause of death being diabetes mellitus. 2. The Regional Office (RO) denied the appellant’s claim for service connection for the Veteran’s cause of death in October 2012; the appellant did not appeal that decision, nor did she submit new and material evidence within one year. 3. Evidence received since the October 2012 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's cause of death. 4. The Veteran's pancreatic cancer and diabetes mellitus, type II, are attributable to his service, specifically his exposure to herbicide agents CONCLUSIONS OF LAW 1. The October 2012 rating decision denying the claim of service connection for the Veteran's cause of death is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the October 2012 rating decision sufficient to reopen the claim of entitlement to service connection for the Veteran's cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from August 1966 to August 1969. The Veteran is a Vietnam Era Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) RO in Milwaukee, Wisconsin. The Veteran died in January 2012. See Certificate of Death, dated February 2012. The appellant is the Veteran's surviving spouse. See Certificate of Marriage, dated August 1990. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). To that end, the issue currently before the Board was the subject of a final rating decision, dated October 2012. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. New evidence has been received since the October 2012 rating decision that raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see Private Treatment Records, dated November 2016. As such, the Board finds that new and material evidence has been received and the claim is reopened. The appellant appeared before the undersigned Veterans Law Judge (VLJ) in November 2020. While the appellant requested an additional period of time within which to submit evidence in support of her appeal, as this decision grants the full benefits sought on appeal, there is no prejudice to the appellant in proceeding with the claim on the merits. Entitlement to service connection for the cause of the Veteran's death When a Veteran dies of a service-connected disability, the Veteran's surviving spouse is eligible for Dependency and Indemnity Compensation (DIC) benefits for the cause of death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially and materially to the Veteran's death. 38 C.F.R. § 3.312. Service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Regarding exposure to herbicides, the law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The Veteran died in January 2012. See Certificate of Death, dated February 2012. The Certificate of Death lists pancreatic cancer as the primary cause of death and diabetes mellitus as a significant condition contributing to the Veteran’s death. Id. The Veteran's active duty service included service in the Republic of Vietnam, and he is therefore presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6); see Disability Benefits Questionnaire, dated September 2012. However, the list of presumptive diseases associated with exposure to herbicide agents does not include pancreatic cancer. 38 C.F.R. § 3.309(e). Accordingly, the presumptive regulations regarding exposure to herbicide agents do not apply to the primary cause of the Veteran’s death. Even though presumptive service connection is not warranted in this case, the appellant is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this regard, there are two opinions from private treatment providers, who opined that it was more likely than not that the Veteran's pancreatic cancer, his primary cause of death, was caused by exposure to herbicide agents. See Private Treatment Records, dated November 2016, August 2012. Moreover, the Veteran’s listed condition that contributed to his death, diabetes mellitus, is among the list of presumptive diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). The September 2012 private examiner opined that hyperglycemia can predispose the development of pancreatic cancer, the Veteran’s primary cause of death. See 38 C.F.R. § 3.310. In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's pancreatic cancer was causally related to service. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue. 38 U.S.C. § 5107. Insofar as there is evidence against the claim, specifically, September 2012 and September 2016 VA examinations that opined it was less likely as not that the Veteran’s pancreatic cancer was causally related to his exposure to herbicide agents or his diabetes mellitus, the Board affords these opinions limited probative weight. The Board therefore concludes that, with the benefit of the doubt resolved in the appellant's favor, a grant of service connection for the cause of the Veteran's death is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'[I]f the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the [appellant] prevails by operation of [statute]."). ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.