Citation Nr: 21008065 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-46 552 DATE: February 11, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for cause of the Veteran’s death is granted. Entitlement to service connection for the Veteran’s cause of death is granted. FINDINGS OF FACT 1. In a January 2004 rating decision, service connection for the cause of the Veteran’s death as denied. Although the appellant was duly notified of the decision and her appellate rights, she did not initiate an appeal nor was new and material evidence received within one year. 2. The evidence received since the final January 2004 decision denying service connection for the cause of the Veteran’s death includes evidence which relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for the Veteran’s cause of death and, when presumed credible, raises a reasonable possibility of substantiating that claim. 3. The Veteran’s death certificate lists his cause of death as metastatic pancreatic cancer: resolving all doubt in the Veteran’s favor, metastatic pancreatic cancer is related to his military service. CONCLUSIONS OF LAW 1. The January 2004 rating decision denying service connection for the cause of the Veteran’s death is final 38 U.S.C.A. § 7105 (2002); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991). 2. New and material evidence has been received to warrant reopening of the claim of entitlement to service connection for the Veteran’s cause of death. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1966 and November 1990 to April 1991. The Veteran died in March 2002. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant provided testimony at a Board videoconference hearing before the undersigned Veterans’ Law Judge (VLJ) in November 2019. Unfortunately, the Board was unable to produce a complete transcript of the proceeding due to audio malfunctions in the Digital Audio Recording System (DARS). The appellant was sent correspondence in October 2020 apprising her of this fact, and she was asked whether she desired another hearing. She was informed that if she did not respond in 30 days the Board would assume she did not desire another hearing and proceed accordingly. No response from the appellant has been received in regard to this correspondence. Consequently, the Board will proceed on the assumption that her hearing request has been satisfied. 1. New and material evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, 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. 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. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See 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, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the appellant’s initial claim of entitlement to service connection for cause of the Veteran’s death was denied in a January 2004 rating decision. In that decision, the RO noted that the Veteran had been diagnosed with metastatic pancreatic adenocarcinoma in 2001, approximately ten years after his separation from service, and his death from that disease was not shown to be related to service. Although the appellant was duly notified of the RO’s decision, she did not initiate an appeal, nor was new and material evidence received, within one year of notification of the decision. Thus, the decision is final and may not be reconsidered on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The evidence associated with the claims file since the final January 2004 decision includes a January 2014 private opinion linking the Veteran’s cause of death to chemical exposures associated with his service in Southwest Asia during the Persian Gulf War. Given the basis for the prior denial, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claim of service connection for the Veteran’s cause of death. Cause of death The appellant contends that the metastatic pancreatic cancer that caused the Veteran’s death is attributable to chemical exposure during his service in Southwest Asia. To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Medical records show that the Veteran’s metastatic pancreatic cancer was diagnosed in 2001, approximately 10 years after his separation from active service. As there is no indication that the disease was present during his service, it may not be service connected based on incurrence or aggravation in service. Likewise, as there is no indication that his cancer was manifest to a compensable degree within one year after his 1991 separation from active duty, there is no basis to presume service connection as a chronic disease. Although the Veteran’s pancreatic cancer was not present during active duty or manifest to a compensable degree within the applicable time period, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran was a Persian Gulf War veteran. On his death certificate, a physician certified that the cause of his death was metastatic pancreatic cancer. At the time of his death, the Veteran was not service connected for any disability. (Continued on the next page)   In January 2014, the appellant submitted a letter from a private physician who indicated that it was his medical opinion that the Veteran’s “terminal pancreatic cancer could as likely as not have been caused by exposures to numerous chemical exposures associated with his service in the Gulf War in the 1990 to 1991 time frame.” After considering the record in its entirety, the Board finds that the criteria for service connection for the Veteran’s cause of death have been met. In this regard, the Board finds the January 2014 statement and opinion of the private physician to be competent, credible, and highly probative of the fact that the Veteran’s metastatic pancreatic cancer was related to his chemical exposures during his active service. There is no competent medical opinion of record which provides a contrary opinion. Therefore, resolving all reasonable doubt in the appellant’s favor, the claim of service connection for the Veteran’s cause of death is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.303(d). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.N., 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.