Citation Nr: 21076788 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-00 044A DATE: December 27, 2021 ORDER New and material evidence having been received, the application to reopen the claim for 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. FINDING OF FACT A final July 2015 rating decision denied service connection for the cause of the Veteran's death; newly received evidence raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to warrant reopening the claim for service connection for a back disability. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Marine Corps from June 1969 to May 1971. The Veteran died in March 2015, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the hearing, the Veteran waived initial RO review of evidence submitted after the December 2018 statement of the case (SOC). 1. New and material evidence having been received, the application to reopen the claim for service connection for the cause of the Veteran's death. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The claim for service connection for the cause of the Veteran's death was originally denied in a July 2015 rating decision based essentially on the finding that the Veteran's post obstructive pneumonia and squamous cell carcinoma of the lung were not shown to have been incurred in service or caused by injury or disease that began during a period of active duty service or manifested to a compensable degree within one year of the Veteran's discharge from service for presumptive service connection. There was no evidence that the Veteran's service-connected anterior cruciate ligament deficiency and frequent periods of left knee disability, degenerative joint disease of the left knee, and fracture of the distal left thumb caused, aggravated, and/or hastened the death of the Veteran. The RO also found that herbicide agent exposure could not be presumed because in-country service in the Republic of Vietnam was not shown for the Veteran. The appellant did not file a timely notice of disagreement (NOD) with regard to the July 2015 rating decision that denied service connection for the cause of the Veteran's death. Therefore, the July 2015 rating decision became final. The evidence received since the final July 2015 rating decision includes a positive private medical letter from Dr. R.J.J., dated August 2017, which states that the Veteran's lung cancer was a significant contributing factor to his death. Also of record is an envelope sent from the Veteran to his grandmother, which the appellant contends the address on the envelope shows that the Veteran sent this from Vietnam while he was stationed there in the military. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection and is sufficient to reopen the claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for the cause of the Veteran's death is reopened. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant is seeking service connection for the cause of the Veteran's death. The appellant asserts that the Veteran's death was due to his exposure to herbicide agents while he was stationed in Vietnam. See November 2018 NOD and According to the Veteran's death certificate, the Veteran died in March 2015 immediately from post obstructive pneumonia due to or as a consequence of squamous cell carcinoma of the lung with liver metastases and right upper obstruction. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected or compensable disability was either a principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A disability will be considered the principal, or primary, cause of death when such disability, either alone 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 disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Veterans who served in Vietnam during the Vietnam Era are presumed to have been exposed to herbicides in service. Certain enumerated diseases may be service-connected on a presumptive basis as due to exposure to herbicides in service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Lung cancer is among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. In November 2017, the appellant submitted an envelope that the Veteran had addressed to the Veteran's grandmother in 1970. The appellant contends that the return address on this envelope reflected that the Veteran sent the envelope from Vietnam where he was stationed at that time. The Board is not able to confirm, on its own, whether this is the case. A remand is warranted for the RO to conduct all necessary research to confirm whether the Veteran's listed address confirms that he was stationed in Vietnam at the time. The matters are REMANDED for the following action: Conduct all appropriate research from all appropriate sources to verify whether the Veteran served in Vietnam during his military service. Specifically, the RO should research the full return address on the October 1970 envelope with APO 96602 which the appellant contends was sent by the Veteran when he was stationed in Vietnam to his grandmother. See November 2017 VA Form 21-4138 Statement in Support of Claim and November 2017 Military Personnel Record. All research performed and findings must be documented in the record. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.