Citation Nr: 21062748 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-67 583 DATE: October 12, 2021 ORDER New and material evidence having been submitted, the request to reopen the claim of entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to service connection for the cause of death is granted. FINDINGS OF FACT 1. In an unappealed February 2013 rating decision, the RO denied the appellant's claim of service connection for the cause of the Veteran's death. 2. Evidence received since the last final denial in February 2013 decision is new and raises a reasonable possibility of substantiating the claim. 3. The Veteran died in January 1999; the immediate cause of death listed on the death certificate was hypertensive cardiovascular disease, with insulin-dependent diabetes mellitus, poorly controlled listed as other significant condition contributing to death. 4. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 5. The preponderance of the evidence establishes that the cause of the Veteran's death was etiologically related to his active service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1963 to December 1967, to include verified service in the Republic of Vietnam from November 1965 to December 1965 and from February 1966 to June 1966. He died in January 1999; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a of a February 2016 administrative decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. In October 2021, the appellant testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death In a February 2013 rating decision, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death based on a finding that the evidence failed to show that the Veteran's death was related to military service. The evidence considered at the time included the Veteran's DD Form 214 and military personnel records, showing service in Vietnam. Also considered were private treatment records from Dr. P. D., and Dr. G. K., which noted that the Veteran received treatment for insulin dependent diabetes and peripheral neuropathy and suggested that his neuropathy was caused by exposure to herbicide agents in service. In the February 2013 rating decision, the RO denied the claim for the cause of the Veteran's death because the evidence did not show that the Veteran's death was caused by a condition that was incurred in or aggravated by active duty service or that the Veteran's death was due to a service-connected disability. The appellant was notified of the rating decision but did not appeal the decision. As such, the February 2013 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence added to the record after the February 2013 rating decision includes statements and testimony from the appellant, and private medical opinions. The Board finds that the evidence submitted since the February 2013 rating decision is new and material. This evidence is new because it had not been previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - namely, evidence of a nexus between the Veteran's military service in the Republic of Vietnam and his death from hypertensive cardiovascular disease and insulin-dependent diabetes mellitus. Therefore, in light of the low threshold for reopening claims noted above, the Board finds new and material evidence has been received, and appellant's claim for entitlement to service connection for cause of death may be reopened. 2. Entitlement to service connection for the cause of death The appellant essentially contends that the Veteran's death was caused by cardiovascular disease, which developed as a result of his exposure to herbicide agents during his period of active duty in Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran 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' the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be presumed for certain chronic diseases if such disease manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for the cause of the veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from exposure to an herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309 (e). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. If a veteran was exposed to an herbicide agent, certain diseases listed at 38 C.F.R. § 3.309(e) will be considered service connected even though there is no record of such disease in service. Ischemic heart disease is among the listed disabilities attributable to herbicide exposure. It is a disease presumptively associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). In this case, the record reflects that the Veteran died in January 1999. The immediate cause of death listed on the death certificate is hypertensive cardiovascular disease with insulin-dependent diabetes mellitus, poorly controlled listed as other significant condition contributing to death. The record also shows that the Veteran served in the Vietnam during the Vietnam War era. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116(f). (Continued on the next page) Of record is a medical opinion from Dr. G. K., dated in June 2017, indicating that he was the Veteran's family doctor from 1990 until his death in 1999 as a result of ischemic heart disease. Dr. K. noted that the Veteran suffered from insulin dependent diabetes mellitus as a result of Agent Orange exposure and that he was treated by many specialists for neuropathy and vascular disease. Dr. K. indicated that, after reviewing the Veteran's claims file including the death certificate, with reasonable medical certainty, he was convinced that the Veteran died as a direct result of vascular disease, including ischemic heart disease. In a more recent medical statement, dated in October 2021, Dr. K. confirmed that the Veteran was his patient and he died because of ischemic heart disease. Dr. K. is a medical professional, and the Board finds that he is competent to render an opinion regarding the Veteran's cause of death. Further, the medical opinion was based on a review of the Veteran's complete claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The Board therefore finds it highly probative of a nexus between the Veteran's cause of death and his exposure to herbicide agents in service. There is no contrary opinion of record and no further development is required. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The Board also notes that the Veteran's insulin-dependent diabetes mellitus is listed as a significant condition contributing to his death on his death certificate. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Consequently, service connection for cause of death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.