Citation Nr: 21063298 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-21 998 DATE: October 13, 2021 ORDER Reopening of the claim for service connection for the cause of the Veteran's death is granted; the appeal is granted to this extent only. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT 1. A June 2015 Board decision denied service connection for the cause of the Veteran's death. The appellant was notified of her rights but did not appeal or request reconsideration of the decision. 2. The evidence associated with the claims file subsequent to the June 2015 Board decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death. CONCLUSION OF LAW 1. The June 2015 Board decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1000, 20.1001, 20.1100. 2. New and material evidence sufficient to reopen the claim of service connection for the cause of the Veteran's death has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to August 1989. The Veteran died in June 1997, and the appellant is the Veteran's surviving spouse. 38 U.S.C. § 101(3). This matter is before the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued in December 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied reopening of the claim for service connection for the cause of the Veteran's death. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 memorandum decision, the Court vacated and remanded the Board's denial of reopening. In June 2021 correspondence, the appellant was notified that her appeal had been returned to the Board following the memorandum decision. The appellant was further notified that she had 90-days to submit additional evidence or argument. The 90 day period having passed, the Board will proceed to address the appeal on the merits. Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018). 1. Reopening of service connection for the cause of the Veteran's death. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. The Board last denied service connection for the cause of the Veteran's death in June 2015. The appellant was notified of the decision, but did not appeal or require reconsideration of the decision. 38 U.S.C. § 7266; 38 C.F.R. §§ 20.1000, 20.1001. Therefore, the June 2015 Board decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100. The Board notes that in April 2017 the appellant submitted selected pages from the Veteran's service treatment records. However, these records are copies of records already considered at the time of the June 2015 Board decision. As such, the records are not new and de novo review of the current appeal is not required. 38 C.F.R. § 3.156(c). The evidence of record in June 2015 consisted of the Veteran's service and personnel records, treatment records, and lay statements from the appellant, including her hearing testimony. The Board determined that the evidence of record did not show that the cause of death was causally related to the Veteran's in-service herbicide agent exposure or any other in-service injury or disease. Evidence received since the rating decision includes post-service treatment record from September 1994, which reflect that the Veteran had a moderate expiratory obstruction. Thus, the submitted records show that the Veteran had respiratory issues approximately five years after separation, which is possibly indicative of a nexus. These is no evidence the submitted records are not competent and they are presumed to be credible. Justus, 3 Vet. App. at 513. The evidence provided by the appellant is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a nexus between the Veteran's cause of death and his service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for the cause of the Veteran's death is warranted. 38 C.F.R. § 3.156(a). As the Board has determined that reopening of the appellant's claim is warranted, the concerns raised in the March 2021 memorandum decision concerning the notice provided to the appellant concerning new and material evidence and how to reopen a previously denied claim are now moot, and need not be addressed further. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death. First, the Board notes that the March 2021 memorandum decision raised concerns regarding the adequacy of the notice received by the appellant regarding what is needed to establish service connection for the cause of the Veteran's death. As the appeal must be remanded anyways, on remand the appellant should be provided with additional notice concerning claims for service connection for cause of death. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); see Hupp v. Nicholson, 21, Vet, App. 342, 35252 (2007). Second, a medical opinion has not been obtained concerning the claim for service connection for the cause of the Veteran's death, which the appellant asserts is due to either herbicide agent exposure or treatment for respiratory issues in service. The Veteran's cause of death was noted to be hemorrhagic bronchopneumonia, and service treatment records reflect that the Veteran reported flu symptoms in 1978 and 1980 and was noted to have a possible left upper lobe density in December 1984. Further, the appellant has submitted evidence showing that the Veteran was noted to have moderate expiratory obstruction in September 1994, approximately five years after his separation. As there is a current disability, in-service treatment, and an indication of a nexus, the Board finds that a remand is warranted for a medical opinion concerning the etiology of the Veteran's cause of death. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Provide the appellant with appropriate notice concerning her claim for service connection for the cause of the Veteran's death pursuant to 38 C.F.R. § 3.159(b) and Hupp v. Nicholson, 21, Vet, App. 342, 35252 (2007). 2. Request that the appellant submit or authorize for release any relevant private treatment records. For all records authorized for release, if the search for these records is negative the appellant must be informed in accordance with 38 C.F.R. § 3.159(e). 3. Obtain a medical opinion concerning the etiology of the cause of the Veteran's death. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the cause of death, noted to be hemorrhagic bronchopneumonia, is causally related to the Veteran's active service, to include exposure to herbicide agents? Attention is invited to: (1) service treatment records noting complaints of flu symptoms in January 1978 and January 1980, a December 1984 notation of a possible left upper lobe density, and a normal July 1989 separation examination (labelled "STR - Medical" pgs. 8, 22, 56, 60 uploaded 1/18/16); and, (2) October 1990 spirometry results within normal limits and September 1994 spirometry results showing moderate expiratory obstruction (labelled "Medical Treatment Record - Government Facility" pgs. 2, 4 uploaded 11/3/17). In providing an opinion concerning herbicide agent exposure, the examiner should not rely solely on the fact that hemorrhagic bronchopneumonia is not a disability that may be presumed to be related to herbicide agent exposure. A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.