Citation Nr: 21064186 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-11 579 DATE: October 19, 2021 ORDER New and material evidence has not been received, and the claim of entitlement to service connection for the cause of the Veteran's death is not reopened. FINDINGS OF FACT 1. A February 2017 rating decision denied entitlement to service connection for Veteran's cause of death; the appellant did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the rating decision. 2. Evidence received since the February 2017 rating decision does not raise a reasonable possibility of substantiating the Appellant's claim for entitlement to service connection for cause of Veteran's death. CONCLUSIONS OF LAW 1. The February 2017 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.200, 20.202, 20.302, 20.1103. 2. Since the issuance of the February 2017 rating decision, new and material evidence has not been received to reopen the claim for entitlement to service connection for Veteran's cause of death. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1967 to April 1969. He died in August 2011. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2019 by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a June 2021 Board hearing before the undersigned. A transcript of that hearing has been associated with the file. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. "New evidence" is existing evidence not previously considered by VA. "Material evidence" is 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Veteran died in August 2011. His death certificate lists the primary cause of death as multi-organ failure secondary to nasopharyngeal cancer stage IV, spontaneous pneumothorax, post-pneumonia in the immunocompromised spinal cord compression secondary to metastasis contributed by gastronomy tube insertion status post-tracheostomy. The Appellant filed her original Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits for a Surviving Spouse or Child (VA Form 21-534) in September 2011. At that time, the evidence of record included the Veteran's death certificate, private medical records documenting his treatment for nasopharyngeal carcinoma (nasal cancer), and an April 2008 Board decision pertaining to another Veteran's case where the Veteran was granted service connection for nasopharyngeal carcinoma based on exposure to Agent Orange herbicides. In a July 2012 rating decision, the RO denied the Appellant's claim of entitlement to service connection for the Veteran's cause of death. The RO noted that service connection had not been established for any disability directly related to active military service during the Veteran's lifetime. The RO further noted that herbicide exposure was conceded because the Veteran's service record confirmed that he served in the Republic of Vietnam from December 31, 1967 to December 23, 1968. However, the RO found that service connection was not warranted because the Veteran's death certificate showed that he passed away from multi-organ failure with no other significant contributing condition in the cause of death. The RO observed that, at the time of his death, the Veteran was being treated for poorly differentiated squamous cell carcinoma consistent with a nasopharyngeal undifferentiated carcinoma and that this condition was not on the list of presumptive condition that are associated with exposure to herbicide agents used in Vietnam. Thus, the RO concluded that presumptive service connection was not warranted. Similarly, the RO found that there was no evidence in the record demonstrating that the Veteran's condition resulted from or was directly related to his military service, to include his conceded exposure to herbicide agents in Vietnam. Thus, the RO concluded that direct service connection was not warranted. The Appellant was notified of the decision in a letter dated July 31, 2012. She did not file a notice of disagreement with the rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 2012 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. In June 2016, the Appellant petitioned to reopen her claim. In support of her claim, the Appellant again submitted the April 2008 Board decision pertaining to another Veteran's case where the Veteran was granted service connection for nasopharyngeal carcinoma based on exposure to Agent Orange herbicides. In its July 2016 rating decision, the RO found that new and material evidence had not been received and that reopening the claim was not warranted at that time. Specifically, the found that the April 2008 Board decision pertaining to another Veteran's case was not binding on the Board and did not raise a reasonable possibility of substantiating the claim that the Veteran's cause of death was presumptively or directly related to herbicide exposure in Vietnam. The RO noted that the April 2008 Board decision could not be used to substantiate the Appellant's claim because it was based on facts and circumstances involving a different veteran and did not address the particular facts and circumstances of this case. The Appellant was notified of the decision in a letter dated July 19, 2016. In January 2017, the Appellant requested reconsideration of the petition to reopen her claim. In its February 2017 rating decision, the RO reopened the Appellant's claim and but ultimately denied the claim on the merits. Based on a comprehensive review of the claims file, the RO found that the evidence of record did not demonstrate that the Veteran's "multi-organ failure secondary to nasopharyngeal cancer stage IV, spontaneous pneumothorax, post-pneumonia in the immunocompromised spinal cord compression secondary to metastasis contributed by gastronomy tube insertion status post-tracheostomy" was incurred in service or caused by injury or disease that began during his period of active duty service. Moreover, the RO found that there was no evidence that the symptoms from the Veteran's cause of death had manifested to a compensable degree within one year of the Veteran's discharge from service. Finally, the RO observed that the Veteran's nasopharyngeal was not one of the cancer types associated with exposure to herbicides and there was no evidence in the record demonstrating that any of the causes of death listed on his death certificate were related to his military service, including his conceded exposure to herbicides. The Appellant was notified of the decision in a letter dated February 24, 2017. She did not file a notice of disagreement with the rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1362; see also Buie, 24 Vet. App. at 251-52. Thus, the July 2016 and February 2017 rating decisions became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. The Appellant most recently petitioned to reopen her claim in July 2018. On November 20, 2018, the RO sent the Appellant a letter informing him of what information and evidence was necessary to substantiate her claim. The Appellant did not respond to that letter. In its January 2019 rating decision, the RO continued to deny the Appellant's claim on the basis that the evidence of record still did not demonstrate that the "multi-organ failure secondary to nasopharyngeal cancer stage IV, spontaneous pneumothorax, post-pneumonia in the immunocompromised spinal cord compression secondary to metastasis contributed by gastronomy tube insertion status post-tracheostomy" was incurred in service or caused by injury or disease that began during his period of active duty service. Moreover, the RO found that there was no evidence that the symptoms from the Veteran's cause of death had manifested to a compensable degree within one year of the Veteran's discharge from service. Finally, the RO observed that the Veteran's nasopharyngeal was not one of the cancer types associated with exposure to herbicides and there was no evidence in the record demonstrating that any of the causes of death listed on his death certificate were related to his military service, including his conceded exposure to herbicides. The Appellant was notified of the decision in a letter dated January 3, 2019. The Appellant timely appealed. The question before the Board is whether the Appellant submitted new and material evidence since the issuance of the last final rating decision in February 2017. Evidence associated with the record since the final February 2017 rating decision includes private medical records documenting his ongoing treatment for nasal cancer and the Veteran's June 2021 Board hearing testimony where she indicated that it was her belief that the Veteran's nasal cancer was caused by his exposure to herbicides during military service and that it first manifested in his nose, then metastasized to his other organs, and ultimately caused or contributed to his multi-organ failure. The Board finds that while the private medical records and hearing testimony are new and relate to an unestablished fact necessary to substantiate the claim, they are not material because they raise no reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Taken together, this evidence merely duplicative or redundant of the arguments and evidence already submitted by the Appellant in support of her claim. Simply stated, the Appellant is simply repeating her claim. Here, the Appellant strongly believes that the Veteran's nasal cancer was caused by or the result of his exposure to herbicides during military service. However, the record does not contain any objective medical evidence to support these assertions. The Board notes that the etiology of certain kinds of cancer is a medically complex matter, as it requires medical knowledge and training. Therefore, it is outside the competence of the Appellant because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran's cause of death was multi-organ failure secondary to his nasal cancer, the evidence of record does not demonstrate that the Veteran's nasal cancer is related to his in-service exposure to herbicides in Vietnam. Consequently, the new evidence in the record since the issuance of the February 2017 rating decision does not raise a reasonable possibility of substantiating the claim because it does not provide a medical basis for concluding that there is an etiological relationship between the Veteran's nasal cancer and his in-service herbicide exposure. The final, unappealed February 2017rating decision found that there was no nexus between the Veteran's death and his military service. No new and material evidence has been added to the record which relates to this fact, or any unestablished fact that is necessary to substantiate the claim. As the Appellant has not fulfilled the threshold burden of submitting evidence sufficient to reopen the finally disallowed claim, the benefit of the doubt doctrine is not applicable and the claim for service connection for Veteran's cause of death is not reopened. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The claim is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.