Citation Nr: 21008506 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-42 985 DATE: February 17, 2021 ORDER The petition to reopen the previously denied claim for service connection for the cause of the Veteran’s death, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. In a June 2008 decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan denied service connection for the cause of the Veteran’s death; the RO mailed notification of its decision and of the appellant’s appellate rights to her address of record. 2. The appellant appealed the June 2008 decision by submitting a timely notice of disagreement (NOD) in October 2008; in June 2010, the RO issued a statement of the case (SOC) advising the appellant, in part, of the time within which she needed to file a substantive appeal in order to perfect her appeal. 3. Thereafter, the RO closed the appeal when appellant did not perfect her appeal by filing a timely substantive appeal. 4. The evidence received since the RO’s June 2008 decision is cumulative and redundant of the evidence previously of record. CONCLUSIONS OF LAW 1. The RO’s June 2008 decision denying service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2007). 2. New and material evidence has not been received to reopen the previously denied claim for service connection for the cause of the Veteran’s death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1966 to July 1971, to include service in Vietnam. His decorations included the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge. Unfortunately, he died in March 2007. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the VA Pension Management Center in Milwaukee, Wisconsin. During the pendency of the appeal, the RO found that new and material evidence had been received to reopen the appellant’s claim. See SOC dated in November 2014. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board notes that the appellant was scheduled for a hearing in connection with the present appeal in May 2018, but did not appear. The hearing notification letter to the appellant indicated that if she did not report for the scheduled hearing, the Board would consider her hearing request withdrawn. It also informed her that, if she failed to report for the hearing, she could file a motion for a new hearing date within 15 days after the date of her scheduled hearing, explaining why she did not report and why she could not submit a timely request for rescheduling. While her representative requested another hearing in January 2021, the Board notes that the new request was submitted more than two years after the appellant was originally scheduled for a hearing, without any explanation of good cause for her prior failure to appear. Under governing law, the request for a new hearing must be denied. See 38 C.F.R. § 20.704(d). The petition to reopen the previously denied claim for service connection for the cause of the Veteran's death, to include as due to exposure to herbicide agents The appellant seeks to reopen a previously denied claim for service connection for the cause of the Veteran’s death. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). To establish entitlement to service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. “New” evidence is defined as 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. 38 C.F.R. § 3.156(a). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The presentation of new arguments based on evidence previously of record does not constitute the submission of new evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). In the present case, the RO originally denied service connection for the cause of the Veteran’s death in a June 2008 decision. The decision noted that military records confirmed that the Veteran served in Vietnam, and that he had previously established service connection for diabetes mellitus, type II, based on herbicide exposure in Vietnam. The RO also noted that a Certificate of Death showed that the Veteran died in March 2007, that the primary cause of death was cancer of the salivary glands, and that cancer of the salivary glands was not among the diseases for which presumptive service connection was warranted based on exposure to herbicide agents in Vietnam. The RO further noted that the Veteran’s service treatment records (STRs) did not mention any treatment or complaints that could be associated with cancer, and that the appellant had not presented any evidence in support of her claim that the Veteran’s death was related to military service or a complication of his service-connected diabetes. Finally, the RO noted that the available scientific and medical evidence did not support the conclusion that the cause of death was associated with herbicide exposure. The evidence of record at that time included STRs, the Certificate of Death, the Veteran’s and the appellant’s lay statements, and four statements from R.S., M.D., dated October 2003, July 2005, November 2006, and February 2007. The appellant appealed the June 2008 decision by submitting a timely NOD in October 2008, and the RO issued a SOC in June 2010. Thereafter, the appellant did not perfect her appeal by filing a timely substantive appeal. As such, the RO closed the appeal and the June 2008 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The additional evidence added to the file since the prior denial includes treatment records from Dr. S. and R.B., M.D., hospital records from Providence Hospital, and a February 2012 letter from Dr. S. The Board finds that this evidence is cumulative and redundant in nature, and that it therefore does not constitute new and material evidence. The treatment records from Drs. S. and B. and the hospital records showing treatment for cancer are cumulative and redundant inasmuch as the RO’s June 2008 rating decision acknowledged that the Veteran’s cause of death was salivary gland cancer. This evidence therefore does nothing to alter the previous findings of the RO regarding the presence of a current disability that caused the Veteran’s death, and it does not raise a reasonable possibility of substantiating the claim. The February 2012 letter from Dr. S. is also cumulative and redundant. Dr. S. stated in the letter that he treated the Veteran for metastatic adenoid cystic carcinoma, originating in the salivary gland and metastasizing to the lung. He noted that the Veteran ultimately died from complications from the disease in 2007, and that he understood that the Veteran was exposed to herbicide agents during his tenure in Vietnam. He stated that he was not aware of any association between that particular cancer and the Veteran’s exposure, but concluded that an association was possible. The Board has carefully reviewed Dr. S.’s February 2012 letter but finds that it is cumulative and redundant of statements he made in his prior letters. In his October 2003 letter, Dr. S. noted that the Veteran had cancer but did not mention exposure to herbicide agents or offer any kind of nexus opinion; in his July 2005 letter, he noted the diagnosis of cancer and opined that he believed that it was related to the Veteran’s exposure to herbicide agents; in his November 2006 letter, he stated that the disease had progressed and opined that exposure to herbicide agents “could be” the etiology of the Veteran’s cancer; in his February 2007 statement, he noted the diagnosis but again offered no further information regarding the Veteran’s exposure to herbicide agents or a nexus between his cancer and that exposure. Dr. S.’s statements in his February 2012 letter are cumulative and redundant of those he made in his prior statements regarding the possible link between the Veteran’s cancer and his exposure to herbicide agents, and add nothing new in that regard. New and material evidence as to the cause of the Veteran’s death, to include as due to exposure to herbicide agents, not having been received, the application to   reopen the claim must be denied, and the Board lacks jurisdiction to consider the merits of the underlying claim. See 38 U.S.C. § 7104(b); Jackson, supra. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.