Citation Nr: 21005638 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-14 866 DATE: February 2, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for cause of death is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. Unappealed August 1998 and November 2014 rating decisions denied service connection for cause of death. 2. Evidence regarding the cause of death received since the November 2014 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 1998 and November 2014 rating decisions that denied the claim of entitlement to service connection for cause of death are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been presented since the last final rating decision in November 2014 to reopen the claim of entitlement to service connection for cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from March 1962 to June 1966. He passed away in May 1997. The Appellant, his spouse, seeks survivor benefits. She contends that the Veteran incurred esophageal cancer due to exposure to herbicides during his service in Vietnam and seeks entitlement to service connection for his cause of death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Appellant submitted a notice of disagreement (NOD) in February 2017. A statement of the case (SOC) was issued in March 2017. The Appellant perfected a timely substantive appeal via VA Form 9 in March 2017. The Appellant appeared at a Board video hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the proceeding is associated with the claims folder. 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for cause of death. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (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). Furthermore, in determining whether this low threshold is met, 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 Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, the Appellant originally submitted a claim of entitlement to service connection for cause of death in June 1998. An August 1998 rating decision denied the claim. The Appellant submitted a NOD in October 1998. A SOC was issued in February 1999. VA did not receive a substantive appeal or any new and material evidence with respect to the claim within a year of the rating decision. Consequently, the underlying August 1998 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). The Appellant submitted another claim of entitlement to service connection for cause of death in August 2014; a November 2014 rating decision denied the claim. She did not appeal the November 2014 rating decision, nor did she submit any new and material evidence within a year of that rating decision. The November 2014 rating decision therefore became final. Thus, new and material evidence is required to reopen the claim of service connection for cause of death. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d (Fed. Cir. 2001). Relevant evidence of record at the time of the previous final decision in November 2014 included military personnel records; the Veteran’s death certificate; the August 1998 rating decision and all evidence referenced therein; the February 1999 SOC; and the Appellant’s application and supporting statements. In July 2016, the Appellant filed a new claim of entitlement to service connection for cause of death. Relevant additional evidence received since the November 2014 rating decision includes statements and testimony from the Appellant and a letter received on February 25, 2016 from Dr. C.C. at Lovelace Medical Group. This evidence was not previously on file at the time of the November 2014 decision; thus, it is new. Significantly, the Dr. C.C. letter received in February 2016 suggests a relationship between the Veteran’s carcinoma and his exposure to herbicide agents in Vietnam. This evidence is material because it bears directly on the issue of a nexus between the Veteran’s service and his cause of death. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for cause of death, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for cause of death is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for cause of death is remanded. The Appellant contends that service connection is warranted for the Veteran’s cause of death. Specifically, she asserts that his esophageal cancer was caused by exposure to herbicide agents during his service in Vietnam. In support of her claim, the Appellant submitted a letter from Dr. C.C. at Lovelace Medical Group, received by VA in February 2016. The doctor stated his understanding is that the Veteran was exposed to Agent Orange in Vietnam and opined that it is more likely than not that the Veteran’s carcinoma is service connected. The Appellant testified during the February 2020 Board hearing that the Veteran served on the ground in Vietnam for two tours. The Board notes that the claims file does not appear to contain the Veteran’s complete service personnel records for his period of active service in the United States Marine Corps from March 1962 to June 1966. As these records may contain information regarding his service in Vietnam, the RO must attempt to obtain them and verify his service in Vietnam. After consideration of the existing record, including the letter received in February 2016, the Board finds that the evidence is insufficient to render a decision. Dr. C.C.’s letter does not reflect a review of the Veteran’s claims file and does not contain any supporting rationale in support of the opinion on a potential relationship between esophageal cancer and exposure to herbicide agents. Therefore, the opinion is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (noting that a medical opinion must support its conclusion with an analysis). The letter from Dr. C.C., however, does trigger VA’s duty to assist the Appellant by obtaining a nexus opinion from an appropriate medical professional. While the case is in remand status, the Appellant may supplement the record with additional medical opinions, but such opinions should set forth a clear conclusion with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records and attempt to verify any service in Vietnam. 2. Obtain a nexus opinion from an appropriate clinician regarding whether the Veteran’s cause of death (adenocarcinoma of the esophagus) is at least as likely as not related to exposure to herbicide agents during any service in Vietnam. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, Elizabeth G. 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.