Citation Nr: 20021990 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-34 141 DATE: March 30, 2020 ORDER As new and material evidence has been received, the petition to reopen a claim of entitlement to service connection for the cause of the Veteran’s death is granted. The underlying claim of entitlement to service connection for the cause of the Veteran’s death also is granted. FINDINGS OF FACT 1. Additional evidence submitted or otherwise obtained since a November 2012 rating decision of a local regional office (RO) earlier considering and denying service connection for the cause of the Veteran’s death is neither cumulative nor redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating this claim. 2. It is just as likely as not that a service-connected disability caused or contributed substantially or materially to the Veteran’s death.   CONCLUSIONS OF LAW 1. Evidence received since the last final and binding denial in November 2012 of the claim of entitlement to service connection for the cause of the Veteran’s death is new and material; thus, this claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 2. Resolving all reasonable doubt in the Appellant-widow’s favor, the criteria are met for entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in December 2003. His death certificate lists his cause of death as metastatic gall bladder cancer. The Appellant is his widow. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran’s death The Appellant’s cause-of-death claim initially was denied by the RO in December 2004 and again in an unappealed (and therefore final and binding) November 2012 rating decision. A claim that has been previously denied will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that 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). Added to the claims file since the November 2012 final and binding denial of this claim are clinical opinions, including a May 2019 opinion from Dr. C. King, positing that it is as likely as not the Veteran’s terminal diagnosis and death were caused by his exposure to an herbicide agent in Vietnam. Dr. King, therefore, attributed the Veteran’s death to disability incurred during his military service. This is new and material evidence according to the “low” threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this claim is reopened. Whether Service Connection for Cause of Death is Warranted To establish entitlement to service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 C.F.R. § 3.312 (c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. There essentially are three medical opinions of significance in this appeal concerning whether a service-connected disability caused or contributed substantially or materially to the Veteran’s death – one involving some measure of speculation, one unfavorable to the claim, and one supporting the claim. G.L. Cushing, M.D., of Central Coast Gastroenterology Medical Group, indicated in a December 2009 opinion his thoughts regarding whether diabetes is a risk factor for gallbladder cancer. Concerning this posited correlation, Dr. Cushing indicated the Veteran’s service-connected Type II Diabetes Mellitus was not a predisposing cause of his terminal bladder cancer. Dr. Cushing conceded that diabetes certainly can make it more difficult to fight off infection, but added that gallbladder cancer is almost uniformly fatal, once it has spread out of the gallbladder and into the surrounding liver. Dr. Cushing went on to explain that he was not aware of all the detail of this Veteran’s case, however, he did not see any relationship between diabetes and gallbladder cancer in his practice. In October 2012, a VA compensation examiner also considered the relevant evidence in this case, including Dr. Cushing’s opinion, and offered impressions. This VA compensation examiner surmised, based on his review of the medical information in the claims file, that it is less likely than not the Veteran’s service-connected Type II Diabetes Mellitus contributed to his death (the cause being the metastatic gallbladder cancer listed exclusively on his death certificate). This VA compensation examiner explained that the Veteran’s death from gallbladder cancer was inevitable based on the then current state of medical science, certainly as of June 2003, as he had gallbladder cancer that could not be surgically removed, and there is still no known way to prevent this Veteran’s death. This VA compensation examiner pointed out that even Dr. Cushing, himself, stated there is no obvious connection between diabetes and gallbladder cancer, and then goes on to speculate that the diabetes would render the Veteran inherently less able to resist the effects of his underlying condition of gallbladder carcinoma. The VA examiner surmised that that, in his opinion, was mere speculation, also noting it was similar to Dr. Cushing’s statement that the diabetes effect on the immune system and the ability to fight infection would lead to contributing cause of the ultimate demise.   This VA compensation examiner noted the Veteran’s death certificate contains no other contributory cause of death, other than the metastatic gallbladder cancer. Therefore, concluded the VA compensation examiner, given the fact that there is no medical evidence that Dr. Cushing provides to support his speculation, the VA compensation examiner’s opinion is as stated – i.e., no relationship or correlation between the service-connected diabetes and terminal gallbladder cancer. Dr. C King, however, came to a different conclusion in his more recent May 2019 opinion, explaining that the Veteran’s risk factors for his cholangiocarcinoma (i.e., bile duct cancer) were smoking, exposure to Dioxins, and service-connected type 2 Diabetes. But Dr. King added that he believes the Veteran’s smoking was a weak risk factor, so not of real significance. Ultimately, after discussing the results of scientific and medical studies in this area, also the Veteran’s relevant medical and other history, Dr. King concluded that we have the competing risk of Dioxins and type 2 diabetes (caused by Dioxins) versus the weak factor of smoking. Therefore, he is convinced by the medical and scientific evidence that it is as likely as not that the Veteran’s diagnosis and cause of death were caused by his exposure to herbicides – including Agent Orange while in Vietnam serving in the US Army. In this circumstance of competing medical opinions where none necessarily is more probative (meaning more competent and credible) than another, the claim must be granted by resolving this reasonable doubt in the Appellant-widow’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition,   which in this instance it is for the reasons and bases discussed. When the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. Therefore, resolving all reasonable doubt in the Appellant-widow’s favor, service connection for cause of death is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Wishard, Tiffany A. 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.