Citation Nr: 20053546 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 18-08 963 DATE: August 12, 2020 ORDER The application to reopen the claim for service connection for the cause of the Veteran’s death is granted. Entitlement to service connection for the cause of the Veteran’s death is granted. Entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. A May 2011 rating decision denied a claim for service connection for the cause of the Veteran’s death. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. 2. The Veteran’s service-connected diabetes mellitus type 2 contributed to the Veteran’s death. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for the cause of the Veteran’s death has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 3. The claim for DIC under 38 U.S.C. § 1318 is moot. 38 U.S.C. § 1318, 7104; 38 C.F.R. §§ 3.22, 20.101. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from September 1967 to May 1969. The Veteran died in December 2010. The appellant is the Veteran’s surviving spouse. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). A claim for service connection for the cause of the Veteran’s death was denied in a May 2011 rating decision. The claim was denied because the record did not show that the cause of the Veteran’s death, identified as pancreatic cancer, was related to service or a service-connected disability. The appellant was notified of the decisions and did not appeal within the appeal period or submit pertinent evidence within the appeal period. In connection with the appellant’s claim to reopen, evidence has been added to the record, which includes a private physician’s determination that it was at least as likely as not that the Veteran’s service-connected diabetes mellitus type 2 could have contributed substantially and causally to the onset of the pancreatic cancer.” The Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran died in December 2010. The death certificate lists the cause of death as pancreatic cancer. At the time of the Veteran’s death, service connection was in effect for type 2 diabetes. Death and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection for the cause of a veteran’s death is warranted if a disability incurred in or aggravated by service caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). The appellant contends that the Veteran’s pancreatic cancer was secondary to his service-connected diabetes mellitus type 2. In support of this contention, she has submitted a January 2016 medical statement from a private physician in which the physician reported that there is an increased risk of pancreatic cancer in patients with pre-existing type 2 diabetes. The physician determined it was as likely as not that the Veteran’s type 2 diabetes could have contributed substantially and causally to the onset of the pancreatic cancer. The physician concluded that the type 2 diabetes contributed to the Veteran’s death, which was due to pancreatic cancer. The appellant also submitted an article of a medical study that showed that middle-aged diabetic people were associated with the most increased risk of malignant neoplasm of the pancreas and an Internet article that states that a 1997 Danish study found diabetes predated pancreatic cancer, a 1998 study concluded that diabetes may be a true but modest risk factor for pancreatic cancer, and a 1999 study showed a 50 percent increased risk of pancreatic cancer in patients diagnosed with diabetes at least 10 years prior to a cancer diagnosis. VA physicians in 2016 and 2017 have agreed that there is an association between type 2 diabetes and pancreatic cancer and that the association is related to the duration of the type 2 diabetes, with longer association having a stronger effect. The Board finds the opinions provided by the VA physicians are probative. However, the Board finds the evidence that there is a stronger association after 10 years does not preclude an association between diabetes and pancreatic cancer prior to 10 years; the use of the word “stronger” suggests that the association is less “strong” with a duration of fewer than 10 years rather than nonexistent. Thus, resolving all doubt in favor of the appellant, the Board finds service connection for the cause of the Veteran’s death is warranted. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran’s surviving spouse in the same manner as if the cause of the veteran’s death was service-connected, even though the veteran died of nonservice-connected causes. See 38 U.S.C. § 1318(a). In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. See, e.g., Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that only if an appellant’s claim for service connection for the cause of the veteran’s death under 38 U.S.C. § 1310 is denied does VA have to also consider an appellant’s DIC claim under 38 U.S.C. § 1318). The Board’s grant of service connection for the cause of the Veteran’s death under the provisions of 38 U.S.C. § 1310 renders the matter of the Appellant’s alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.