Citation Nr: 21068148 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-37 987 DATE: November 9, 2021 ORDER The request to reopen the claim of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy for accrued benefits purposes is granted. The request to reopen the claim of entitlement to service connection for hypertension for accrued benefits purposes is denied. The request to reopen the claim of entitlement to service connection for diabetes mellitus for accrued benefits purposes is denied. The request to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and depressive disorder for accrued benefits purposes is denied. The request to reopen the claim of entitlement to service connection for a bowel condition for accrued benefits purposes is denied. The request to reopen the claim of entitlement to service connection for Parkinson's disease for accrued benefits purposes is denied. Entitlement to service connection for cause of death is granted. Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy for accrued benefits purposes is denied. FINDINGS OF FACT 1. A February 2013 rating decision denied entitlement to accrued benefits for the purposes of establishing service connection for hypertension, diabetes mellitus, bilateral upper and lower extremity peripheral neuropathy, PTSD, depressive disorder, a bowel condition, and Parkinson's disease. The appellant was notified of that decision in January 2004 correspondence. She did not appeal the decision and new evidence was not submitted within a year after the decision. Therefore, the decision is final. 2. In June 2003 VA treatment records first received in February 2020, the Veteran was diagnosed with peripheral neuropathy. This evidence is new and material, and it helps cure a prior evidentiary defect; namely, the lack of a diagnosed disability. 3. Evidence received since the February 2013 rating decision that can be considered in an accrued benefits claim is not material as to the issues of service connection for hypertension, diabetes mellitus, PTSD, depressive disorder, a bowel condition, and Parkinson's disease. 4. The Veteran was diagnosed with diabetes mellitus, type II, and it was a contributory cause of his death. 5. The Veteran's duties at Don Muang Royal Thai Air Force Base (Don Muang) in 1967 and 1968 placed him placed him on or near the perimeters of the base. 6. The evidence of record, including evidence under constructive possession, at the time of the Veteran's death does not reflect that the Veteran's bilateral upper and lower extremity peripheral neuropathy is related to service. CONCLUSIONS OF LAW 1. The February 2013 rating decision, which adjudicated entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, hypertension, diabetes mellitus, PTSD, depressive disorder, a bowel condition, and Parkinson's disease on an accrued benefits basis, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. §§ 3.156, 19.52 (2021). 2. The criteria to reopen a claim of service connection for bilateral upper and lower extremity peripheral neuropathy on an accrued benefits basis have been met. 38 U.S.C. §§ 5101, 5108, 5121, 7105 (2018); 38 C.F.R. §§ 3.156, 3.1000 (2021). 3. The criteria to reopen a claim of service connection for hypertension on an accrued benefits basis have not been met. 38 U.S.C. §§ 5101, 5108, 5121, 7105 (2018); 38 C.F.R. §§ 3.156, 3.1000 (2021). 4. The criteria to reopen a claim of service connection for diabetes mellitus on an accrued benefits basis have not been met. 38 U.S.C. §§ 5101, 5108, 5121, 7105 (2018); 38 C.F.R. §§ 3.156, 3.1000 (2021). 5. The criteria to reopen a claim of service connection for PTSD and depressive disorder on an accrued benefits basis have not been met. 38 U.S.C. §§ 5101, 5108, 5121, 7105 (2018); 38 C.F.R. §§ 3.156, 3.1000 (2021). 6. The criteria to reopen a claim of service connection for a bowel condition on an accrued benefits basis have not been met. 38 U.S.C. §§ 5101, 5108, 5121, 7105 (2018); 38 C.F.R. §§ 3.156, 3.1000 (2021). 7. The criteria to reopen a claim of service connection for Parkinson's disease on an accrued benefits basis have not been met. 38 U.S.C. §§ 5101, 5108, 5121, 7105 (2018); 38 C.F.R. §§ 3.156, 3.1000 (2021). 8. The criteria for entitlement to service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1116, 1131, 1310, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.312 (2021). 9. The criteria for entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy on an accrued benefits basis have not been met. 38 U.S.C. §§ 1110, 1131, 5101, 5107(b), 5121 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1953 to July 1957 and March 1961 to March 1969. He passed away in December 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA). This case was remanded in October 2019 for further development. In September 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that it has recharacterized the issue of entitlement to service connection for cause of death. Within a year of an April 2014 rating decision, in which the Agency of Original Jurisdiction (AOJ) denied the issue, the appellant submitted a statement that her husband had told her in 1974 that he had been exposed to Agent Orange while on active duty. See April 2014 statement. This evidence is considered new and material, as it relates to whether the Veteran's cause of death was related to his service. Thus, the April 2014 rating decision remained pending pursuant to 38 C.F.R. § 3.156(b) and the current matter is not a request to reopen a previously denied claim. 1. Whether new and material evidence has been received to reopen a claim of service connection for hypertension, diabetes mellitus, bilateral upper and lower extremity peripheral neuropathy, PTSD, depressive disorder, a bowel condition, and Parkinson's disease on an accrued benefits basis. Prior to February 19, 2019, a veteran must have filed a notice of disagreement (NOD) with a determination by the AOJ within one year from the date that the AOJ mails notice of the determination to him or her. Otherwise, that determination will become final. 38 C.F.R. § 19.52. However, if new and material evidence was received prior to the expiration of the appeal period, then the evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Prior to the Veteran's death in December 2010, he filed a claim of service connection for hypertension, diabetes mellitus, bilateral upper and lower extremity peripheral neuropathy, PTSD, depression, Parkinson's disease, and a bowel condition. See August 2010 inquiry correspondence. He died before a rating decision was issued and the appellant filed a claim in March 2011. The AOJ denied these issues on an accrued benefits basis in a February 2013 rating decision. The Board notes that, in the February 2013 rating decision, the issue of service connection for PTSD and depressive disorder was inexplicably not characterized as for accrued benefits; however, the introduction and notification letter explained that all the issues were for accrued benefits. Additionally, the Codesheet issued with the rating decision stated that the rating was based on the evidence in the file at the time of the Veteran's death. Moreover, at the time she filed her claim, the appellant's claim for accrued benefits was not considered a claim for substitution. See 79 Fed. Reg. 52982 (Sept. 4, 2014) (eff. Oct. 6, 2014). In the February 2013 rating decision, the issues of service connection for hypertension, diabetes, depression, and a bowel condition for accrued benefits were denied on the basis that the disabilities were neither incurred in nor related to service. The issues of service connection for bilateral upper and lower extremity peripheral neuropathy and PTSD for accrued benefits were denied on the basis that there was no diagnosed disability. The issue of service connection for Parkinson's disease was denied on the basis that new and material evidence had not been received to show how the disease was incurred in or related to service. The Board notes that the issues related to hypertension, diabetes, and Parkinson's disease were also denied on the basis that they did not manifest to a compensable degree within one year of service. The appellant did not appeal the decision, nor was any new evidence received within a year of the decision. As a result, the decision is final. Accrued benefits are defined as periodic monetary benefits authorized under a law administered by VA, to which a payee was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Because of the requirement of considering only evidence in the file at the date of death, the appellant's request to reopen the accrued benefits claim is different than a typical request to reopen a claim. In the context of an accrued benefits claim, and pursuant to VA's definition of evidence in the file at the date of death in 38 C.F.R. § 3.1000(d)(4), there may be circumstances, perhaps rare but certainly possible, where documents are in VA's possession at the date of the veteran's death, and therefore are considered to be in the file at the date of death yet have never been presented to VA decisionmakers. Any such document submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify as new evidence pursuant to 38 C.F.R. § 3.156(a), and might also be material if it, along with evidence previously in the record, relates to an unestablished fact necessary to substantiate the claim. For example, if evidence was in the possession of one VA office at the date of death, and the surviving spouse's accrued benefits claim was submitted to and finally denied by another office without knowledge of the evidence in the possession of the other office, an accrued benefits claimant may successfully reopen the claim with that evidence, if material. Quattlebaum v. Shinseki, 25 Vet. App. 171 (2012). In order for evidence to be considered new and material for the purpose of reopening an accrued benefits claim, the evidence would have to be shown to have been in VA's possession or constructive possession on or before the date of the Veteran's death. Thus, the appellant's testimony and other evidence aside from VA treatment records received after the Veteran's death will not be considered. The AOJ obtained VA treatment records from the East Orange VA Medical Center (VAMC) that were not previously of record at the time of the February 2013 rating decision but were in VA's constructive possession. These records discuss hypertension, diabetes, a bowel condition, depressive disorder, and Parkinson's disease, but there is no evidence as to how these disabilities may be related to service or that they were manifest within one year of service. Additionally, there is no diagnosis of PTSD. As a result, the evidence is not material. Thus, the request to reopen claims of service connection for hypertension, diabetes mellitus, a bowel condition, depressive disorder, and Parkinson's disease on an accrued benefits basis are denied. VA treatment records not previously associated with the claim file reflect an additional diagnosis of peripheral neuropathy. See June 2003 VA treatment records. Because these records were not in the claim file but under constructive possession, they are considered new. Because they reflect a new diagnosis of peripheral neuropathy, the evidence is material. Thus, new and material evidence has been received to reopen the claim of service connection for bilateral upper and lower extremity neuropathy on an accrued benefits basis, and the claim is granted. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for cause of death. Service connection for cause of death will generally be established when a veteran dies from an injury or disease deemed to be related to military service. See 38 U.S.C. § 1310. His death will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312. A contributory cause of death is inherently not related to the principal cause of death. 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. 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 C.F.R. § 3.312(c). VA established a procedure for verifying a veteran's exposure to herbicide agents in Thailand during the Vietnam War era. Because there was significant use of herbicide agents on the fenced-in perimeters of Thailand military bases to eliminate vegetation and ground cover for security purposes, special consideration of herbicide agent exposure is extended on a facts-found or direct basis to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Thus, presumptive service connection of the diseases associated with herbicide agent exposure may be warranted for veterans who served in Thailand. See May 2010 Compensation and Pension Service Bulletin. Certain diseases may be presumed to be service-connected if manifested in a Veteran who was exposed to herbicide agents in service. Diabetes mellitus type II is associated with herbicide agent exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). The Veteran's death certificate reflects that he passed away due to stomach cancer, but that his diabetes was a significant condition contributing to death. Thus, the evidence reflects that diabetes was a contributory cause of death and the threshold question in this matter is whether the Veteran was exposed to herbicide agents during service, such that his diabetes was presumptively related to his service. The Veteran's military occupational specialty during his second period of service was an air passenger specialist. See DD 214. Military personnel records reflect that the Veteran was stationed at Don Muang from September 1967 to September 1968. As discussed in a performance report while in Thailand, he performed ground coordination duties connected with the handling of passengers and cargo for Military Airlift Command (MAC) aircraft transiting the station. He was a liaison between host base ground support activity and personnel on all MAC assigned and operationally controlled aircraft. He also assisted with the off and onloading of passengers and cargo. See July 1968 military personnel records. The appellant and her daughter testified that the Veteran spoke of handling deceased bodies that were being shipped and told them that he was exposed to "dust" from the bodies. The Veteran told them that he was going from aircraft carrier to land, transporting the bodies and performing whatever other mortuary services were needed. The dust made him cough a lot and it was from the bodies. He also told the appellant that he worked with clergy while patients who had been in Vietnam were dying. He transported different officers to different locations for different incidents. See September 2019 Board hearing. The appellant also reported that the Veteran told her in 1974 that he was exposed to Agent Orange. See April 2014 statement. Military personnel records corroborate that the Veteran performed duties associated with aircraft at Don Muang, and the Board assigns significant probative weight to the appellant and her daughter's testimony that the Veteran reported interacting with passengers and deceased bodies after they were exposed to herbicide agents. The undersigned had the opportunity to observe the appellant and her daughter and finds their testimony regarding the Veteran's reports credible. Their testimony reflects that the Veteran would have worked along the flight line, which was near the perimeter of the base. Thus, after resolving reasonable doubt in the Veteran's favor, the Board finds that his duties placed him along the perimeter of Don Muang and he was exposed to herbicide agents during service. As discussed above, the evidence reflects that the Veteran's diabetes mellitus type II was a contributory cause of death. His diabetes is presumptively related to his herbicide agent exposure during service. Thus, service connection for cause of death is warranted, and the matter is granted. 3. Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy on an accrued benefits basis. As discussed above, accrued benefits are defined as periodic monetary benefits authorized under a law administered by VA, to which a payee was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). With limited exceptions, the record is closed as of the date of the Veteran's death. In other words, any evidence received by VA after the date of the Veteran's death may not be considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000. VA treatment records in constructive possession may be considered. See Hyatt v. Shinseki, 566 F.3d 1364 (Fed. Cir. 2009). The record prior to the Veteran's death reflects that the Veteran was diagnosed with peripheral neuropathy. See, e.g., June 2003 VA treatment records. However, there is no evidence, including lay statements, as to how that disability was incurred in service or otherwise related to service. VA treatment records reflect that the neuropathy was due to the Veteran's non-service-connected diabetes. Id. Although private treatment records indicate that tests were needed to determine whether there are any other treatable causes of neuropathy other than diabetes, see January 2009 private treatment record, this record is afforded no probative weight because it only states that diabetes is a cause of his neuropathy, not anything else. Discharge medical examinations in service treatment records (STRs) reflect that the Veteran was normal upon discharge from both periods of service. Although the Veteran served in Thailand at Don Muang, there was simply insufficient evidence of record at the time of the Veteran's death to concede herbicide agent exposure. The Board may not consider the appellant and her daughter's testimony during her Board hearing because it occurred after the Veteran's death. Thus, the testimony that the Veteran worked directly with aircraft on the flight line rather than merely an administrative position cannot be considered; the only evidence of record at the time of the Veteran's death reflected administrative duties. As a result, service connection would not have been awarded based on herbicide agent exposure at the time of his death. After review of the record at the time of the Veteran's death, the preponderance of the evidence reflects that he did not have an in-service event related to his peripheral neuropathy or that his peripheral neuropathy was related to service. Thus, the claim of service connection for bilateral upper and lower extremity neuropathy for accrued benefits purposes must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.