Citation Nr: 21010231 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-21 487 DATE: February 24, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for cause of death is reopened. Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. An April 2003 rating decision denied service connection for cause of death. 2. Evidence received since the April 2003 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for cause of death. 3. The Veteran died in September 2001 as a result of acute myelogenous leukemia (AML). 4. Resolving reasonable doubt in favor of the appellant, the Veteran’s AML was the result of his radiation exposure while working as a truck driver and medic in Nagasaki, Japan during his active service. CONCLUSIONS OF LAW 1. The April 2003 rating decision is final. 38 U.S.C. §§ 7105, 7257 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2019). 2. New and material evidence sufficient to reopen the claim for entitlement to service connection for cause of death has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1946 to April 1954. He passed away in September 2001. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. I. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id.  For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18.  1. New and material evidence having been received, the claim for service connection for cause of death is reopened. The appellant filed two prior claims for entitlement to service connection for cause of death, with the most recent claim being denied in an April 2003 rating decision. The Veteran did not appeal this decision; thus, it became final. In July 2014, the appellant filed a new claim for entitlement to service connection for cause of death. In support of her claim, the appellant provided an August 2015 letter from one of the Veteran’s treating physicians. The Veteran’s physician wrote that the Veteran had passed away in September 2001 due to a diagnosis of acute myelogenous leukemia and “Subsequently, I became aware of his history of service in Japan, as a member of the post-war occupation forces, in 1946. His history includes service in radiation risk areas from the use of the atomic bombs, exposing him to ionizing radiation of indeterminate dose. Radiation of the type shed by uranium and plutonium fission weapons can cause AML. It would appear that [the Veteran’s] exposure to this radiation could have led to his AML developing later in life.” The Board finds this letter to be new and material evidence which raises the possibility of substantiating the claim. Accordingly, the claim for entitlement to service connection for cause of death is reopened. II. Service Connection for Cause of Death Service connection for cause of death may be awarded for a Veteran’s death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-related disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or 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(c). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Debilitation is assumed when the disease affecting a vital organ is evaluated 100 percent. 38 C.F.R. § 3.312(c)(3) Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 2. Entitlement to service connection for cause of death. The appellant has contended that the Veteran’s AML was the result of his exposure to ionizing radiation while participating in “radiation risk activities” during his active service in Nagasaki, Japan from November 4, 1946 to July 31, 1947. The Board notes that leukemia is a presumptive disease specific to radiation-exposed Veterans under 38 C.F.R. § 3.309(d). However, the term “radiation-exposed Veteran” during the occupation of Hiroshima and Nagasaki, Japan only includes the period beginning August 6, 1945, and ending July 1, 1946. The Veteran did not begin his tour in Nagasaki until November 4, 1946, a mere four months outside of the inclusive period. Accordingly, service connection for cause of death cannot be granted on a presumptive basis. However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, the appellant has filed several applications for service connection for cause of death. In support of her claims she has provided letters from the Veteran’s treating physicians and a professor of medicine. The first letter dated December 2001, provided that the Veteran was diagnosed with AML in October 2001 and subsequently died of such, then noted “AML is known to be increased in frequency in individuals who are exposed to radiation. If [the Veteran] had known exposure to radiation in the past, this would have increased his risk of leukemia at a later age.” In another letter dated January 2002, it was provided “[The Veteran] was a patient of mine who died of acute myelogenous leukemia. Radiation exposure is known to cause acute leukemia. Since [the Veteran] was exposed to radiation in Japan during World War II, there could be a link here.” In a third letter dated February 2002, a physician opined “Based on my understanding of [the Veteran’s] case, I would say that it is at least as likely as not, if not likely that his radiation exposure during his time of service in Japan may have contributed to his developing leukemia. It is clear that [the Veteran] died of acute myelogenous leukemia, and leukemia is a common complication of ionizing radiation. Therefore, it would appear to me that [the appellant] would be eligible to receive benefits on this basis.” Finally, as noted above, the appellant provided another letter in support of her claim in September 2015. This letter from one of the Veteran’s treating physicians dated August 2015 provided that the Veteran had passed away in September 2001 due to a diagnosis of acute myelogenous leukemia and “Subsequently, I became aware of his history of service in Japan, as a member of the post-war occupation forces, in 1946. His history includes service in radiation risk areas from the use of the atomic bombs, exposing him to ionizing radiation of indeterminate dose. Radiation of the type shed by uranium and plutonium fission weapons can cause AML. It would appear that [the Veteran’s] exposure to this radiation could have led to his AML developing later in life.” Resolving reasonable doubt in favor of the appellant, the Board finds that service connection for cause of death on a direct basis is warranted. Accordingly, entitlement to service connection for cause of death is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Attorney 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.