Citation Nr: 21007552 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-43 817 DATE: February 9, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for cause of death is reopened. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. A February 2011 rating decision denied entitlement to service connection for cause of death; the appellant did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the rating decision. 2. Evidence received since the February 2011 rating decision is new and raises a reasonable possibility of substantiating the appellant’s claim for entitlement to service connection for cause of death. CONCLUSIONS OF LAW 1. The February 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for cause of death is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the appellant testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to service connection for cause of death is reopened In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In this case, the RO denied service connection for entitlement to service connection for cause of death in a February 2011 rating decision because there was no evidence the Veteran’s death was related to service. Thus, service connection for cause of death could not be established. The appellant was notified of the decision in a letter dated February 4, 2011. The appellant did not file a notice of disagreement with the February 2011 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the February 2011 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final February 2011 rating decision includes a letter from Dr. J.C. associated with the claims file in July 2017. The private doctor opined that the Veteran’s pulmonary fibrosis was at least as likely as not related to the Veteran’s exposure to herbicide agents in service. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the private doctor letter raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the appellant’s claim for entitlement to service connection for cause of death, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Service connection for cause of death is remanded Regarding the appellant’s claim for entitlement to service connection for cause of death, remand is required to provide the appellant with a VA medical opinion. The appellant has not yet been provided with a medical opinion pertaining to whether the Veteran’s fatal pulmonary fibrosis is related to his conceded exposure to herbicide agents in service. Dr. J.C. has provided an opinion that the Veteran’s pulmonary fibrosis was at least as likely as not caused by his exposure to herbicide agents in service. However, the private provider did not provide any rationale for the positive nexus opinion. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The evidence shows the Veteran’s death was caused by pulmonary fibrosis, and the Veteran has conceded herbicide agent exposure in service. Finally, the private physician’s nexus opinion indicates the Veteran’s pulmonary fibrosis may be associated with the Veteran’s service. Accordingly, remand is required for a VA medical opinion. The matter is REMANDED for the following action: 1. Forward the claims file to a VA examiner to provide an opinion regarding the claim for entitlement to service connection for the cause of the Veteran’s death. A rationale must be provided for all opinions rendered. (a.) Opine on whether it is at least as likely as not that the Veteran’s pulmonary fibrosis, which caused his death, began during service or was related to any incident of service, including his conceded in-service herbicide agent exposure. The examiner is asked to address the positive nexus opinion provided by Dr. J.C., a thoracic surgeon with over 35 years of experience with many pulmonary fibrosis patients. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.