Citation Nr: 21070862 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 19-22 887 DATE: November 26, 2021 ORDER The application to reopen the claim of entitlement to service connection for cause of death is granted. Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. In a February 2015 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim for service connection for cause of death. Although the appellant was notified of the RO's decision and her appellate rights in a March 2015 letter, she did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of issuance of that decision. 2. The evidence received since the final February 2015 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for cause of death. 3. The Veteran served in or near the Korean Demilitarized Zone (DMZ) between September 1, 1967 and August 31, 1971 and atherosclerotic heart disease contributed substantially and materially to death. CONCLUSIONS OF LAW 1. The February 2015 rating decision denying the claim of service connection for cause of death is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been received to warrant reopening the claim of service connection for cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1116B, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to January 1972. The Veteran died in December 2006. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 decision of the VA RO that denied entitlement to service connection for cause of death. Although the RO appeared to implicitly reopen the claim and deny it on the merits, the question of whether new and material evidence has been received is one that must be addressed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In November 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual hearing. A transcript of that hearing is not necessary given that the Board is granting the benefits sought in full. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for 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(c). An exception to this rule is 38 U.S.C. § 5108, which 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. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period 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). New evidence means 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In February 2015, the RO denied the Veteran's claim for service connection for cause of death. The Veteran was notified of this denial in a March 2016 letter, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. 38 C.F.R. § 20.1103. Evidence received since the February 2015 final rating decision includes the Veteran's death certificate listing cardiopulmonary arrest as the immediate cause of death, due to or as a consequence of atherosclerotic heart disease. This evidence is new to the record, relates to a previously unestablished fact to support the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim is warranted. Entitlement to service connection for cause of death The appellant contends that the Veteran's exposure to herbicide agents in Korea caused his atherosclerotic heart disease that was a contributory cause of his death. Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Contributory cause of death is inherently one not related to the principal cause. 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 determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The Veteran's death certificate submitted in August 2018 listed his immediate cause of death as cardiopulmonary arrest, due to or as a consequence of atherosclerotic heart disease. Thus, the death certificate indicates that atherosclerotic heart disease contributed substantially and materially to death and is therefore a contributory cause of death. Certain diseases specified in 38 U.S.C. § 1116 (a)(2), and additional diseases the Secretary determines warrant a presumption of service connection by reason of having positive association with exposure to an herbicide agent, listed in 38 C.F.R. § 3.309 (e), are considered to have been incurred in or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. 38 U.S.C. § 1116B(a)(1). This presumption applies to any veteran who, during active military, naval, or air service, served in or near the DMZ, during the period beginning on September 1, 1967, and ending on August 31, 1971. 38 U.S.C. § 1116B(a)(2). Atherosclerotic cardiovascular disease is a type of ischemic heart disease, and ischemic heart disease is associated with herbicide agent exposure under 38 C.F.R. § 3.309(e) and may therefore be considered incurred during service if the Veteran served in or near the DMZ between September 1, 1967, and August 31, 1971. Therefore, the remaining question is whether the Veteran was exposed to herbicide agents during active military service, entitling him to presumptive service connection under 38 U.S.C. § 1116B. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents in or near the DMZ between the period beginning September 1, 1967 and ending on August 31, 1971. The Veteran's military personnel records show that from December 1970 to March 1971, the Veteran was assigned as a cook to the 7th Administration Company, 7th Infantry Division, and from March 1971 to January 1972, he was assigned as a cook to the 2nd Administration Company, 2nd Infantry Division. The 2d Administration Company and 7th Administration Company are not among those listed by the Department of Defense (DOD) as stationed along the DMZ in or near an area in which herbicides are known to have been applied from September 1, 1967 to August 31, 1971. However, the 2d Infantry Division and 7th Infantry Division are included among those stationed along the DMZ in or near an area in which herbicides are known to have been applied during that period. While the Veteran's appeal was pending, Congress enacted, and the President signed into law, the Blue Water Navy Vietnam Veterans Act of 2019. The new law codified VA's regulation related to veterans who served in Korea in a new section of the U.S. Code, 38 U.S.C. § 1116B, though with modifications. Notably, it contains no reference to units designated by DOD; it simply refers to veterans who "served in or near" the DMZ. Compare. 38 C.F.R. § 3.307(a)(6)(iv), with Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969 (2019). In August 2018, the appellant's representative submitted a statement contending that the Veteran served at or near the DMZ over a two year period as a cook for the 2d Infantry Division and 7th Infantry Division. Although there is no specific personnel record that contains a specific notation of presence in or near the DMZ, no such documentation is required in these circumstances. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). In this case, although the Veteran's personnel records do not specifically mention that his duties as a cook stationed him at or near the DMZ, it is reasonable to conclude that as a cook for the 2d Infantry Division and 7th Infantry Division, divisions that were known to have been stationed along the DMZ in or near an area in which herbicides are known to have been applied during the time the Veteran was stationed in Korea, he would have been physically stationed with those divisions in order to serve them food. 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. Parseeya-Picchione, 28 Vet. App. at 176. Thus, the evidence of record, to include the Veteran's military personnel records and the appellant's representative's statement, is at least evenly balanced as to whether the Veteran served in or near the DMZ between September 1967 and August 1971. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Veteran served in or near the Korean DMZ between September 1967 and August 1971. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). Therefore, it is presumed the Veteran was exposed to herbicide agents while serving in Korea from December 1970 to January 1972. (Continued on the next page) As atherosclerotic cardiovascular disease is presumed service-connected in veterans exposed to herbicide agents, and the Veteran is presumed to have been exposed to herbicide agents, his atherosclerotic cardiovascular disease is presumed to be related to service. Moreover, because atherosclerotic cardiovascular disease contributed substantially and materially to the Veteran's death, entitlement to service connection for the cause of the Veteran's death is warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.