Citation Nr: 21066837 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-56 256 DATE: November 2, 2021 ORDER The appeal to reopen service connection for the cause of the Veteran's death is granted. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded Entitlement to accrued benefits is remanded. FINDING OF FACT The appellant has provided new details regarding the nature of the Veteran's service to include potential Agent Orange exposure. CONCLUSION OF LAW The evidence is new and material to reopen service connection for the cause of the Veteran's death. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Air Force from May 1961 to October 1965. He died in December 2002. The appellant is his surviving spouse. The matter comes before the Board on appeal from an August 2016 decision. The Board denied the appellant's request to reopen service connection for the cause of the Veteran's death and denied entitlement to accrued benefits in a January 2019 decision. The appellant appealed the January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court set aside the Board's January 2019 decision and remanded the appeal for further proceedings. Whether new and material evidence has been submitted to reopen service connection for the cause of the Veteran's death The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service connection for the cause of the Veteran's death was denied in an April 2003 rating decision. The appellant appealed that decision to the Board, and the Board denied the claim in August 2005. The bases for that denial were that the Veteran's causes of death were not shown to be related to his period of active service, including abdominal pain and other symptoms occurring in service. The evidence was also against a finding that he was exposed to herbicide agents during service. There was also no link between the Veteran's death and his service-connected hemorrhoids. This Board decision was final. The appellant later sought to reopen the claim, but a January 2014 Board decision found that no new and material evidence had been submitted. The appellant appealed that decision to the Court, which affirmed the Board's decision in January 2015. The January 2014 Board decision was also final. The pertinent question is whether the appellant has submitted new and material evidence since the January 2014 Board decision. The Veteran's death certificate shows that he died in December 2002, and the cause of death was listed profound hypoxia, due to pneumonia, due to B-cell lymphoma. B-cell lymphoma is a type of non-Hodgkin's lymphoma. If a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, such as non-Hodgkin's lymphoma, shall be service connected even though there is no record of such disease during service. 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. There is no evidence in the record, nor is it contended, that the Veteran ever served in the Republic of Vietnam. The appellant, in a March 2021 Informal Brief, asserts that the Veteran was exposed to Agent Orange when he served in Kadena Air Base, Okinawa while performing duties as a jet aircraft mechanic working on "F-100 type aircraft." Service personnel records show he was stationed in Okinawa, Japan from October 1961 to May 1963 at Kadena Air Base. This information regarding the nature of his service is new and has not been previously considered. As such, the Board finds that new and material evidence has been submitted to reopen service connection for the cause of the Veteran's death. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Court's March 2021 Memorandum Decision provides that a remand is warranted to obtain a copy of a 2017 VA Agent Orange Newsletter article, which the Court found was constructively before the Board. To the extent the appellant contends that the Veteran worked on aircraft that had service in Vietnam, the Board observes that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B), (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e), it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. The appellant contends that the Veteran was exposed to Agent Orange when he served in Kadena Air Base, Okinawa while performing duties as a jet aircraft mechanic working on "F-100 type aircraft." Moreover, the Veteran reported in a July 2002 substantive appeal that he was exposed to Agent Orange while working on aircraft that dropped the herbicide over Vietnam. There is no indication in the record that there has been an attempt to verify the Veteran's claimed herbicide exposure servicing aircraft while stationed at Kadena Air Base in Okinawa. Therefore, the Board finds that an attempt should be made to verify the Veteran's alleged herbicide exposure through the appropriate official sources. 2. Entitlement to accrued benefits is remanded. The Board notes that while the Court's March 2021 Memorandum Decision specified that a remand of the claim to reopen service connection for the cause of the Veteran's death was necessary to associate the 2017 VA Agent Orange Newsletter with the record, the Court did not discuss the appeal for accrued benefits. The Court did note that it need not address the appellant's additional arguments that would lead to no broader remedy than a remand. As such, the Board will defer making a decision on the appeal for accrued benefits, pending completion of the remand order. The appellant may submit additional argument and evidence as to the remanded matters. The matters are REMANDED for the following action: 1. Obtain a copy of a 2017 VA Agent Orange Newsletter available at https://www.publichealth.va.gov and associate it with the record. 2. Request from an official source to investigate and attempt to verify the reports of the Veteran's alleged exposure to herbicide agents at Kadena Air Base in Okinawa while supporting aircraft during his period of service in Okinawa from October 1961 to May 1963. 3. Make a formal finding of whether the Veteran was in the group of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Required notice must be provided to the appellant and her representative. 4. Development should also be undertaken to secure a copy of a 1971 U.S. Army report titled "Historical, logistical, political and technical aspects of the herbicide/defoliant program," produced by Fort Detrick. See November 2017 article by The Asia-Pacific Journal. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.