Citation Nr: 21004433 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-12 375 DATE: January 27, 2021 ORDER New and material evidence has not been submitted sufficient to reopen a claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. New and material evidence has been submitted sufficient to reopen a claim for service connection for the Veteran’s cause of death. REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. FINDINGS OF FACT 1. An April 2013 decision denied the Appellant’s claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318; the Appellant was notified of the decision and apprised of her right to appeal, but she did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The evidence received since the April 2013 rating decision, for the Appellant’s claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318, is cumulative or repetitive of facts that were previously considered. 3. An April 2013 decision denied the Appellant’s claim for service connection for the Veteran’s cause of death; the Appellant was notified of the decision and apprised of her right to appeal, buts she did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 4. The evidence received since the April 2013 rating decision, for the Appellant’s claim for service connection for Veteran’s cause of death, is neither cumulative nor repetitive of facts that were previously considered. CONCLUSIONS OF LAW 1. The April 2013 rating decision that denied the Appellant’s claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. Following the April 2013 rating decision, there has not been additional relevant evidence received that is new and material for the purpose of reopening the Appellant’s claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). 3. The April 2013 rating decision that denied the Appellant’s claim for service connection for the Veteran’s cause of death is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 4. Following the April 2013 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Appellant’s claim for service connection for the Veteran’s cause of death. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from March 1954 to August 1967, and from November 1967 to June 1974. Unfortunately, the Veteran passed away in February 2013. The Certificate of Death relays the following causes: respiratory failure, pneumonia, congestive heart failure, atrial fibrillation, renal failure, cirrhosis of the liver, thrombocytopenia, hypoxemia, and cardiac arrest. NEW AND MATERIAL EVIDENCE Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial decision on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a) (2020). To warrant reopening, the new evidence must not be cumulative or 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a “low threshold” for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. Initially, the Board notes that, at his death in February 2013, the Veteran had been rated 100 percent disabled since July 2009. In April 2013, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ denied the Appellant’s claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. The AOJ denied entitlement to DIC, because the Veteran was not rated totally disabled for the 10-year period preceding his death. In June 2015, the AOJ issued a Statement of the Case (SOC). Therein, the AOJ continued to deny the Appellant’s claim for entitlement to DIC under 38 U.S.C. § 1318. The AOJ continued to deny entitlement to DIC, because the Veteran was not rated totally disabled for the 10-year period preceding his death. In March 2017, the Appellant submitted a VA Form 9. Therein, the submitted an Appeal to the Board of Veterans’ Appeals for the denial of the claim for entitlement to DIC. In March 2017, the AOJ supplied the Appellant an Appeal Notification Letter. Therein, the AOJ notified the Appellant that her substantive appeal was untimely and, therefore, the decision that denied the claim for entitlement to DIC was final. In May 2017, the Appellant submitted a VA Form 21-534EZ. Therein, the Appellant renewed her claim for entitlement to DIC under 38 U.S.C. § 1318. Again, “new evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a) (2020). Benefits under the provisions of 38 U.S.C. § 1318 are payable when a Veteran’s service-connected disabilities are rated totally disabling for 10 or more years immediately preceding death. In this case, the Veteran was not rated 100 percent disabled for the 10 years preceding his death. After deliberate review of the claims file, the Board has not identified any new and material evidence that would support a finding that the Veteran was rated 100 percent disabled for the 10 years preceding his death. In October 2020, the Appellant and her son supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). When the undersigned asked if there was anything to present on the DIC claim, the Veteran’s representative replied that the evidence supplied on the cause of death claim “should wrap that up.” Until the Appellant meets her threshold burden of submitting new and material evidence sufficient to reopen her claim for entitlement to DIC under 38 U.S.C. § 1318, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Ultimately, the Board concludes that new and material evidence has not been provided sufficient to reopen the Appellant’s claim for entitlement to DIC under 38 U.S.C. § 1318. The Board finds that the record before it contains essentially the same evidence the AOJ considered in April 2013. Consequently, the Board finds that new and material evidence has not been submitted. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. New and material evidence sufficient to reopen a claim for entitlement to DIC under 38 U.S.C. § 1318 has not been received; therefore, the claim for DIC entitlement is not reopened. 2. New and material evidence has been submitted sufficient to reopen a claim for service connection for the Veteran’s cause of death. Again, in Shade, 24 Vet. App. at 117, the Court held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a “low threshold” for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. In April 2013, the AOJ issued a rating decision. Therein, the AOJ denied the Veteran’s claim for service connection for the Veteran’s cause of death. The AOJ denied service connection for the Veteran’s cause of death because VA medical records did not link respiratory failure, pneumonia, congestive heart failure, atrial fibrillation, renal failure, cirrhosis of the liver, thrombocytopenia, or cardiac arrest to the Veteran’s military service, or specifically relate the Veteran’s death to military service. In June 2015, the AOJ issued a Statement of the Case (SOC). Therein, the AOJ continued to deny the Appellant’s claim for service connection for the Veteran’s cause of death. In March 2017, the Appellant submitted a VA Form 9. Thereby, the Appellant submitted an Appeal to the Board of Veterans’ Appeals for the denial of the claim for service connection for the Veteran’s cause of death. In March 2017, the AOJ supplied the Appellant an Appeal Notification Letter. Therein, the AOJ notified the Appellant that her substantive appeal was untimely and, therefore, the decision that denied of the claim for service connection for the Veteran’s cause of death was final. In May 2017, the Appellant submitted a VA Form 21-534EZ. Therein, the Appellant renewed her claim for service connection for the Veteran’s cause of death. In May 2017, correspondence from Premier Medical Group was associated with the claims file. Therein, a provider relayed that, “I believe (the Veteran’s) service in Viet Nam and his constant exposure to Agent Orange and other occupational to smoke and fuel and fumes as a mess sergeant are the likely cause of his medical problems since his retirement and are the proximate cause of his death in January 2013. It is my opinion that (the Veteran’s) service was much more likely than not the cause of his medical problems that ultimately caused his death.” While the provider did not provide a rationale for the opinion or identify which medical problems were associated with service, the newly submitted evidence is sufficient to satisfy the low threshold to reopen the claim. The Board concludes that, since the finalized April 2013 rating decision, new and material evidence has been added to the record. Specifically, the correspondence from Premier Medical Group relates to the previously unestablished nexus between in-service exposure(s) and the Veteran’s cause of death. Accordingly, the Appellant’s claim for service connection for the Veteran’s cause of death is reopened. However, as explained below, the Board finds that additional evidentiary development with respect to the merits of the underlying claim for service connection for the cause of the Veteran’s death. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Appellant with appropriate assistance in developing her claim prior to final adjudication. 3. Entitlement to service connection for the Veteran’s cause of death is remanded. The evidence contains conflicting medical opinions regarding the relationship between the Veteran’s military service and the cause of his death. In May 2017, correspondence from Premier Medical Group was associated with the claims file. Therein, a provider relayed that, “I believe (the Veteran’s) service in Viet Nam and his constant exposure to Agent Orange and other occupational to smoke and fuel and fumes as a mess sergeant are the likely cause of his medical problems since his retirement and are the proximate cause of his death in January 2013. It is my opinion that (the Veteran’s) service was much more likely than not the cause of his medical problems that ultimately caused his death.” The Board observes that the correspondence from Premier Medical Group suggests an etiological link between the Veteran’s service and the cause of his death. However, the Board finds this medical opinion is conclusory in nature and does not provide any further evidence or rationale in support of its findings. As such, this opinion is assigned little probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a medical opinion is dependent, in part, upon the extent to which it reflects clinical data or other rational to support its findings). In February 2018, a VA examiner submitted a disability benefits questionnaire (DBQ). Therein, the VA examiner noted that none of the Veteran’s service-connected conditions were listed on the certificate of death as a cause or significant contributing factor. The examiner did note the correspondence from the Premier Medical Group. However, the VA examiner did not address the contention that Agent Orange exposure, and occupational exposure to smoke and fuel and fumes, was a proximate cause of the Veteran’s death. Instead, the VA examiner opined on the lack of an etiological relationship between the conceded Agent Orange exposure and the Veteran’s cause for death. The Veteran’s government medical records were associated with the claims file in April 2013, June 2015, September and October 2017, January and February 2018, and April 2019. Therein, the Board notes a reported history of emphysema. However, the Board also notes that the government medical records reflect that the Veteran ceased smoking tobacco decades prior to his death. The Board has deliberately reviewed the Veteran’s STRs, which were added to the claims file in December 2014. The Board notes that the Veteran did not self-report shortness of breath during active duty service. However, in November 1957, a Clinical Record noted that the Veteran was diagnosed with acute respiratory disease, which was incurred in the line of duty. In April 2019, a VA examiner submitted a DBQ. Among other questions, the VA examiner was asked if the Veteran’s service treatment records (STRs) revealed any other treatment/diagnosis that would have at least as likely as not contributed to his death. The VA examiner opined that, “(a) careful and thorough review of this veteran’s service treatment records did NOT reveal any other treatments or diagnoses which would have at least as likely as not contributed to his death.” In October 2020, the Appellant and her son supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Appellant testified that the Veteran was an intermittent smoker in the military, but he quit smoking 40 years before his death. The Appellant testified that the Veteran’s responsibilities in and out of the military mess hall required the Veteran to be around diesel exhaust fumes “quite a bit.” When questioned by her representative, the Appellant confirmed her belief that the Veteran was exposed daily to diesel exhaust fumes during his 20 years of military service. The Appellant testified that the Veteran endured breathing difficulty during and after military service. In October 2020, the Appellant submitted an article entitled, “Occupational diesel exhaust exposure as a risk factor for chronic obstructive pulmonary disease.” The article summarized that, “(t)he available literature directly examining the effects of occupational diesel exhaust on risk of COPD is quite small, but it does suggest that increasing exposures are associated with increasing risk.” Because the February 2018 VA examiner did not address the Veteran’s exposure to smoke, fuel, and fumes during active duty service, the Board finds that the supplied opinion it is not adequate for this analysis. Moreover, because the April 2019 VA examiner’s negative opinion did not address the in-service diagnosis for acute respiratory disease, the Board finds that it was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, the AOJ must secure a VA opinion that addresses the Veteran’s in-service diagnosis for acute respiratory disease and also considers the Appellant’s contention that in-service occupational exposure diesel exhaust fumes were a cause of the Veteran’s death. Consequently, the matter is REMANDED to the AOJ for the following action: 1. The AOJ must secure a VA opinion that addresses the Veteran’s cause of death. Based upon a review of the entirety of the claims file, and the history supplied by the Appellant, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s cause of death was caused by any in-service occupational exposures, to include exposure to diesel exhaust fumes, or is otherwise related to the Veteran’s active duty service? It should be noted that the Appellant is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Appellant, the examiner should provide a fully reasoned explanation. The VA examiner must specifically address the contention that the Veteran’s cause of death was etiologically related to in-service occupational exposure to fumes, specifically diesel exhaust fumes. Explanations for any opinion must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Appellant’s statements regarding the onset of the Veteran’s breathing difficulties. 2. After completing any other development that may be warranted, the AOJ should readjudicate the claim for service connection for the Veteran’s cause of death. If the benefit sought is not granted, the Appellant and her representative must be given a supplemental statement of the case (SSOC) and a reasonable opportunity to respond before the record is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.