Citation Nr: 21064647 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-40 815 DATE: October 21, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for cause of death is reopened. The claim of entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The February 2012 rating decision that denied the Appellant's claim of entitlement to service connection for the Veteran's cause of death, is final. 2. Evidence has been received since the February 2012 final denial that relates to an unestablished fact necessary to substantiate the Appellant's claim and that raises a reasonable possibility of substantiating the claim. 3. The Veteran passed away in August 2011; his death certificate listed the cause of his death as subdural hemorrhage due to a fall. 4. The Veteran's service-connected disability materially contributed to his cause of death. CONCLUSIONS OF LAW 1. New and material evidence has been received since the February 2012 denial of service connection for cause of death; as such, the criteria to reopen the claim has been met. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 2. The criteria for entitlement to service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from October 1961 to August 1962. The Veteran passed away in August 2011. The Appellant in this matter is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a virtual hearing before the undersigned Veterans Law Judge in October 2021. While a written transcript of the hearing has not yet been associated with the evidence of record, as the Board is granting the Appellant's claim in full, there is no prejudice to the Appellant in adjudicating the appeal at this time. 1. New and material evidence having been received, the claim of entitlement to service connection for cause of death is reopened. The Appellant asserts that new and material evidence has been submitted to warrant reopening of the claim of service connection for the Veteran's cause of death. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule, pursuant to 38 U.S.C. § 5108, provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence means existing evidence not previously submitted to the VA. 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. 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 being sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 510, 513 (1992). In determining whether evidence is new and material, the credibility of the evidence, but not its weight, is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d. 1366 (Fed. Cir. 2001). In this case, the RO denied the Appellant's initial claim in a February 2012 rating decision. The evidence of record shows that VA received no appeal from the Appellant following this denial within one year of the decision. As such, the February 2012 decision became final. Since this final denial, VA has received both medical and lay evidence relating to the Appellant's claim. Specifically, VA has received multiple medical opinions regarding the cause of the Veteran's death. See May 2017 VA opinion; August 2018 private medical opinion. The private medical opinion, in particular, contains direct medical observations made at the time of the Veteran's death by a member of the Veteran's hospital care team. The Appellant has submitted multiple lay statements and provided testimony before the Board regarding her claim. The Board finds this medical and lay evidence not cumulative or redundant of the evidence previously of record. Further, this evidence relates to the existence of a causal connection between the Veteran's ultimate cause of death and his service-connected spine condition. Accordingly, the Board finds that the evidence submitted is new and material, and that reopening the claim of entitlement to service connection for cause of death is warranted. 2. The claim of entitlement to service connection for cause of death. The Appellant contends that the Veteran's death was causally related to his service-connected back condition. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause, and it requires a showing of a causal connection. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). In this case, at the time of his death, the Veteran was service connected for intervertebral disc syndrome (IVDS), rated as 60 percent disabling from February 1988. In addition to receiving the highest schedular rating for IVDS, the Veteran was in receipt of a total disability rating based on individual unemployability (TDIU) as of January 2010. In granting the TDIU, the RO determined that the Veteran was "unable to ambulate independently and only short distances with the assistance of two others and a wheeled walker." See January 2011 rating decision. In her October 2021 testimony before the Board, the Appellant competently and credibly testified that the Veteran's IVDS caused significant weakness and instability in his legs. The evidence of record contains an August 2018 medical opinion, provided by a general trauma and critical care surgeon who has the initials M.A.J., and who was on the Veteran's care team at the time of his August 2011 hospitalization. In his opinion letter, Dr. M.A.J., noted that the Veteran presented to the trauma center "after a mechanical fall believed to be related to his chronic disability which left him with severe back pain and lower extremity weakness." Dr. M.A.J. opined that the Veteran's death was "primarily, directly and without question linked to his chronic debilitating pain and weakness which in turn led to his fall." According to Dr. M.A.J., this fall "resulted in severe brain trauma that he never recovered from and ultimately led to his untimely death." The Board finds this opinion highly probative as it provides a reasoned medical explanation based on clinical data and direct observations. The Board acknowledges that there is a May 2017 VA medical opinion of record that concluded the Veteran's death was less likely than not related to his service-connected disability; however, the Board finds this opinion to lack probative value. This examiner stated there was "no evidence in the medical records reviewed of any ongoing complaints of nor treatment for a back condition prior to nor at time of death." This is clearly inaccurate given the Veteran's IVDS disability rating and evidence that the Veteran could not walk more than a few feet without experiencing flareups and radicular symptoms to his lower extremities. See e.g., December 2010 VA examination. "An opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 Vet. App. 458, 461 (U.S. 1993). Further, this opinion fails to address the Appellant's actual contention that the Veteran's spine condition caused the Veteran's initial fall and head trauma, which ultimately led to his death. (Continued on the following page.) The Board finds the preponderance of the probative evidence to show that the Veteran's service-connected disability caused or contributed substantially or materially to the cause of the Veteran's death. As such, the claim of entitlement to service connection for the cause of the Veteran's death is granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.