Citation Nr: 20030779 Decision Date: 05/01/20 Archive Date: 05/01/20 DOCKET NO. 18-23 132A DATE: May 1, 2020 ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the cause of the Veteran’s death. 2. Entitlement to service connection for the cause of the Veteran’s death. ORDER New and material evidence to reopen the claim for entitlement to service connection for cause of the Veteran’s death has been received; to this limited extent, the claim is granted. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. In a March 2012 rating decision, the RO denied the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death. 2. The evidence received since the March 2012 rating decision regarding the Appellant’s claim for entitlement to service connection for the cause of the Veteran’s death is new and raises a reasonable possibility of substantiating the claim. 3. The Veteran died in March 2006. The immediate cause of death listed on his death certificate is chronic myeloid leukemia and leukemia meningitis. 4. The Veteran’s chronic myeloid leukemia (CML) was the underlying cause of the Veteran’s death and was a result of his presumed exposure to herbicide agents while service on active duty. CONCLUSIONS OF LAW 1. The March 2012 rating decision denying entitlement to service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, thus, the claim of entitlement to service connection for the cause of the Veteran’s death is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. A disease or injury which was incurred in or aggravated by service caused or contributed substantially or materially to cause the Veteran’s death. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from October 1966 to August 1968. The Veteran died in March 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant is the Veteran’s surviving spouse. The Appellant appeared at a Travel Board hearing in St. Petersburg, Florida in January 2020 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. By way of background, the Appellant filed a claim for entitlement to service connection for the cause of the Veteran’s death, which was denied in a rating decision from June 2011. An additional rating decision in March 2012 provided continued the denial of the Veteran’s claim. The March 2012 rating decision was not immediately appealed and thus became final. The Appellant submitted an application for benefits in March 2017, along with a statement in support of her claim that she was seeking to reopen her previously denied claim. A rating decision from April 2017 reopened the Veteran’s claim, in practice, however continued to deny her claim of entitlement to service connection for the cause of the Veteran’s death. The Veteran filed a Notice of Disagreement (NOD) in March 2018 and the Veteran was issued a statement of the case. The Veteran then filed a Rapid Appeals Modernization Program (RAMP) opt-in form in May 2018. The Veteran was issued a RAMP rating decision in September 2018, which continued to deny the Veteran’s claim. The Veteran was then informed through correspondence from the RO in January 2019 that her appeal did not qualify for processing under RAMP, and that a notification letter instructing her that her Legacy claim was withdrawn and placed into the Appeals Modernization system was incorrect. As a result, her claim was not removed from the Legacy appeals system, and after her appeal to the Board by filing a Form 9, her claim was properly certified in March 2019. Regardless of the AOJ’s actions, the Board must make its own determinations as to whether new and material evidence has been received to reopen the claim. That is, the Board has jurisdictional responsibility to consider whether claims should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the cause of the Veteran's death. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As indicated above, the Appellant testified before the undersigned in a hearing in January 2020. The Appellant testified that the Veteran was exposed to certain toxins while serving in the Republic of Vietnam. She then testified that those toxins are related to the Veteran’s death under two theories. First, she stated that the Veteran’s “diagnosed leukemias were directly related” to his exposure to toxic herbicides and chemicals while in the Republic of Vietnam. Second, the Veteran testified that at the time of his death, the Veteran was also diagnosed with ischemic heart disease, which is presumptively related to service, and that that diagnosis prevented the Veteran from obtaining necessary treatment for his CML, so therefore the presumptive ischemic heart disease actually accelerated the Veteran’s death. Thus, while the Veteran’s certificate of death indicates that he died of leukemia meningitis and chronic myeloid leukemia (CML), diseases that are not presumptively related to herbicide exposure, she believes that these theories still entitle her to service connection for the cause of the Veteran’s death. The Board is reminded that for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992) In consideration of the above, the Board notes that the prior rating decision from March 2012 denied the Appellant’s claim, since leukemia meningitis and CML, those diagnoses listed as the Veteran’s cause of death, fell outside the list of diseases which are presumptively related to herbicide exposure. See further, 38 C.F.R. § 3.309 (e). Having said that, the Appellant has provided credible testimony which offers two new theories of entitlement to service connection, as cited above. Again, consideration for reopening a claim should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Appellant has offered an alternative theory of entitlement. Therefore, the testimony is new, insofar as it was not previously submitted to the VA. The submitted testimony is also material, in that it goes to unestablished facts necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). Affording the Appellant the benefit of reasonable doubt, the Board finds that, under the circumstances of this case, rejecting the Appellant’s request to reopen the previously denied claim would be in conflict with the principles explained in Justus and Duran. For these reasons, the claims for entitlement to service connection for cause of death will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 2. Entitlement to service connection for the cause of the Veteran's death. The Appellant contends that the Veteran’s death was caused by his active duty service. She wrote in a statement from March 2017 that the Veteran’s “death is directly attributed to his exposure to benzine and agent orange.” She has made similar statements in her NOD from March 2018, as well as her Form 9 from February 2019. 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 either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). It is the principal cause if it was “the immediate or underlying cause of death or was etiologically related” to the death. 38 C.F.R. § 3.312 (b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312 (c)(1). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Turning to the first theory of entitlement that the Appellant has put forward, she believes that the Veteran’s exposure to toxic herbicides directly caused the Veteran’s death. See January 2020 Hearing Transcript. To begin, the Veteran’s death certificate lists the cause of death as leukemia meningitis and chronic myeloid leukemia (CML). The death certificate also indicates that the Veteran had an onset of CML for approximately six years prior to his death. As such, at the time of the Veteran’s death, he had a diagnosis of CML. 38 C.F.R. § 3.303. Turning to the second criteria, the Appellant testified in January 2020 that the Veteran’s health problems, including his diagnosis of CML and leukemia meningitis stem from his exposure to toxic herbicides while service in the Republic of Vietnam. The Veteran will be presumed to have been exposed to an herbicide agent, if he served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 C.F.R. § 3.307 (a). The Veteran’s military personnel record confirms that he served in the Republic of Vietnam during the applicable period, and his DD-214 confirms that he was awarded the Vietnam Service Medal, as well as the Vietnam Campaign Medal. Thus, the Board has confirmed that the Veteran was presumed exposed to herbicides during his active duty service. 38 C.F.R. § 3.307 (a). Affording the benefit of the doubt to the Appellant, the events described, including the Veteran’s confirmed Vietnam service, qualify under the second prong for entitlement to service connection. 38 C.F.R. § 3.303. Finally, as per the third prong for entitlement to service connection, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The Veteran’s claims file contains a February 2020 statement from Dr. R.S. of the Dana-Farber Cancer Institute. Dr. R.S. indicates that he “participated in [the Veteran’s] care during the years between 2002 and his demise in 2006.” The private physicians statement includes extensive notes about the Veteran’s service in the Republic of Vietnam, indicating that he reviewed the Veteran’s claims file. The private physician’s statement indicates a knowledge of diseases “caused [due] to toxin exposure including benzene and possibly agent orange.” He also demonstrated a familiarity with operations in Southeast Asia, including the “herbicide/defoliant sprayed in large volumes on the jungles … during Operation Ranch Hand in the Vietnam War.” After providing additional details on the chemical composure of toxins linked to agent orange, the private physician opined that the Veteran’s exposure to agent orange is at least as likely as not the cause of CML, as there is medical literature that supports there is an increased risk of CML with benzene exposure. [The Veteran] was exposed to herbicides containing benzene while in the service; risk factors that would predispose him to CML. As such, a positive nexus opinion was provided that the Veteran’s CML diagnosis was at least as likely as not related to his exposure to toxic herbicides while serving in the Republic of Vietnam. There is no evidence that the private physician was not competent or credible, and as their report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Turning to an analysis of the Appellant’s claim, the Veteran had a diagnosis of CML at the time of his death, and CML is also confirmed as the ultimate cause of the Veteran’s death. The Appellant has provided competent testimony that the in-service event was the Veteran serving in the Republic of Vietnam, which has been confirmed from his military personnel records, as well as the service medals documented in his DD-214. Finally, the claims file contains a report from Dr. R.S., which provides a positive etiological opinion, linking the Veteran’s diagnosed CML to his exposure to toxic herbicides and agent orange, which he can be presumed exposed to, as a result of that confirmed Vietnam service. There is ample evidence that Dr. R.S. had familiarity with the diagnosis and circumstances of the Veteran’s death, having participated in his care in the years prior to his death, and Dr. R.S. has provided a detailed rationale to explain his positive etiological opinion. Importantly, the Board further notes that the Veteran’s claims file contains no negative etiological opinions, and therefore the weight of the evidence available is more so in favor of the Appellant’s claim. Up to this point, the Veteran’s claim had been denied by the RO solely due to the fact that CML was not a disease listed on the presumptive list for those exposed to herbicides. 38 C.F.R. § 3.309 (e). Having said that, service connection for a disability claimed as being due to toxic herbicide exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. That is the case here, as the opinion provided demonstrates that CML was in fact causally linked to the Veteran’s exposure, and that in turn, CML was the ultimate cause of the Veteran’s death. As such, the Board finds that the third criteria has been met, and that the Veteran’s diagnosis of CML was at least as likely as not caused by his exposure to toxic herbicides, as a result of his Vietnam service. 38 C.F.R. § 3.303. Accordingly, the Veteran’s death due to CML is considered to have resulted from his exposure to toxic herbicides, which in turn carries a presumed association with the Veteran’s service in the Republic of Vietnam. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Thus, entitlement to service connection for the cause of the Veteran’s death is granted. 38 C.F.R. § 3.102. The Board, having granted the Appellant’s claim on her first theory of entitlement to service connection, need not address her second theory of entitlement to service connection. In closing, the Board would be remiss if we did not express our sincere condolences to the Appellant, and our gratitude for the Veteran’s honorable service. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.