Citation Nr: 21007377 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-10 248 DATE: February 9, 2021 ORDER Reopening of Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. Service connection for the cause of the Veteran’s death is granted. DIC benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. A February 2002 rating decision denied service connection for the cause if the Veteran’s death on the basis that the evidence showed no relationship between the Veteran’s cause of death, gallbladder cancer, and service, to include herbicide agent exposure. 2. In February 2002, the appellant submitted a timely Notice of Disagreement (NOD) following the February 2002 rating decision. 3. A November 2002 statement of the case (SOC) confirmed the denial of service connection for the cause of the Veteran’s death. The appellant did not timely file a substantive appeal (VA Form 9) following the November 2002 SOC, so the February 2002 rating decision became final. 4. The Veteran died in September 2000. 5. The cause of the Veteran’s death was gallbladder cancer. 6. The Veteran served in the Republic of Vietnam, so exposure to herbicide agent is presumed 7. The Veteran’s cause of death, gallbladder cancer, is causally related to herbicide agent exposure 8. The Veteran was never a prisoner of war (POW) and was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from service, or for 10 or more years prior to death. CONCLUSIONS OF LAW 1. The February 2002 rating decision denying service connection for the cause of the Veteran’s death became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the February 2002 rating decision 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. 3. Resolving reasonable doubt in the appellant’s favor, the criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. 4. The criteria for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision from the Pension Management Center, which denied service connection for the cause of the Veteran’s death and DIC benefits under 38 U.S.C. § 1318. The Board finds that the duties to notify and assist the appellant regarding the issue of service connection for cause of death have been rendered moot by the grant of service connection for the cause of the Veteran’s death, which is a full grant of the benefits sought on appeal. As for entitlement to DIC benefits under § 1318, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. Legal Criteria for Reopening Service Connection Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. “[N]ew evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117-118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. 1. Reopening Service Connection for Cause of Death In this case, a February 2002 rating decision denied service connection for the cause of the Veteran’s death on the grounds that the evidence did not show a relationship between the Veteran’s cause of death, gallbladder cancer, and service, to include herbicide agent exposure. In February 2002, the appellant was notified of the rating decision and provided notice of procedural and appellate rights. Following the submission of a timely NOD in February 2002, the RO issued a November 2002 SOC continuing the denial of service connection for the cause of the Veteran’s death. The appellant did not timely file a substantive appeal (VA Form 9) following the November 2002 SOC, and new and material evidence was not received during the one-year appeal period following the decision. As such, the February 2002 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the February 2002 rating decision denying service connection for the cause of the Veteran’s death, VA has received additional evidence of a nexus between the Veteran’s cause of death and service. See August 2019 private treatment record. Presuming the credibility of such new evidence for the purpose of reopening the claim, such evidence relates to the unestablished fact of a nexus between the cause of the Veteran’s death, gallbladder cancer, and herbicide agent exposure, so could reasonably substantiate the issue of service connection for the cause of the Veteran’s death. For this reason, the Board finds that the additional 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). 2. Service Connection for Cause of Death Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Gallbladder cancer is not listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27, 630 (May 20, 2003). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In the present case, the death certificate lists the cause of death as gallbladder cancer. The appellant contends that service connection for the cause of the Veteran’s death, gallbladder cancer is warranted due to herbicide agent exposure during service. See July 2019 Board hearing transcript, February 2017 VA Form 9. The Board finds that in-service exposure to herbicide agents is presumed. The DD Form 214 reflects that the Veteran had foreign service in the Republic of Vietnam and was a recipient of the Vietnam Service Medal with one star, the Vietnam Campaign Medal, and the Purple Heart. The Board finds the appellant’s account of in-service herbicide agent exposure to be credible and consistent with the places, types, and circumstances of the Veteran’s service. 38 U.S.C. § 1154(a). After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran’s cause of death, gallbladder cancer, was caused by in-service exposure to herbicide agents. A review of the evidence shows that the Veteran presented with a two-week history of jaundice in February 2000. Upon further evaluation the Veteran was diagnosed with gallbladder cancer in February 2000. At the time of diagnosis, the Veteran was noted to have previously been in good health with no serious illnesses. The Veteran also had no history of bleeding tendencies, other tumors or cancer, bowel or bladder disease, hepatitis, cirrhosis, etc. There was also no history of smoking or drinking. Gallbladder cancer was initially treated with surgical intervention, followed by radiation and chemotherapy. The Veteran eventually expired due to gallbladder cancer in September 2000. See February 2002, March 2000, April 2000, May 2000 private treatment records, September 2000 Death Certificate. In an October 2002 statement, Dr. Russell, the Veteran’s treating radiation oncologist, noted the Veteran’s history of Agent Orange exposure during service and indicated that a causal link between the in-service herbicide agent exposure and the Veteran’s development of gallbladder cancer seems plausible given the fact that herbicides are detoxified predominantly in the liver, and that Agent Orange has been linked to other malignancies. See October 2002 private treatment record. In an August 2019 statement, Dr. Moore noted that she reviewed the Veteran’s medical records as well as the medical history. Dr. Moore opined that it is at least as likely as not that the Veteran’s gallbladder cancer was caused by exposure to Agent Orange during service. Dr. Moore reasoned that the Veteran’s medical history was otherwise unremarkable, as he was not a smoker, he was not abusing alcohol, and he had no active liver, gastric, or pancreatic disease historically. See August 2019 private treatment record. For these reasons, and resolving reasonable doubt in the appellant’s favor, the Board finds that service connection for the cause of the Veteran’s death is warranted. 3. DIC Benefits under 38 U.S.C. § 1318 VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran’s release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b). For purposes of 38 U.S.C. § 1318, “entitled to receive” means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran’s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran’s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22. The Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. The service records do not reflect that the Veteran was a POW, so benefits cannot be granted on this basis. Furthermore, the Veteran separated from service in January 1968, and he died in September 2000. Preceding death, the Veteran had a disability rating of 10 percent from May 2, 1973 based on the service-connected gunshot wound of the left calf. Based on the Veteran’s combined disability rating of 10 percent from May 2, 1973 for the single service-connected disability, the Veteran’s separation from service in January 1968, and the date of death in September 2000, it is not legally possible to establish a 100 percent rating for five years immediately following service separation or for a 10-year period immediately preceding death to meet the eligibility requirement for DIC under 38 U.S.C. § 1318. For these reasons, DIC under 38 U.S.C. § 1318 is precluded. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C. § 1318, also known as “hypothetical entitlement.” See also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. As the evidence shows the Veteran (i) was not continuously rated totally disabled for 10 years preceding his death, (ii) was not continuously rated totally disabled for five years since release from active duty, or (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met; therefore, the appellant’s claim for compensation under 38 U.S.C. § 1318 is without legal merit. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.