Citation Nr: 21015510 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-49 879A DATE: March 17, 2021 ORDER New and material evidence having been added to the record, the appeal to reopen a claim of entitlement to service connection for cause of the Veteran’s death is granted. REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. FINDING OF FACT The evidence added to the record since the October 1990 decision letter is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for cause of the Veteran’s death, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for cause of the Veteran’s death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1963 to January 1964 and from October 1966 to July 1986. The Veteran died in July 1990; and the appellant is the Veteran’s widow. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant was afforded a Virtual hearing conducted by the undersigned Veterans Law Judge in September 2020. A transcript is associated with the claims file. New and Material Evidence Claim Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) (“Justus does not require the Secretary [of VA] to consider the patently incredible to be credible”). 1. New and material evidence having been added to the record, the appeal to reopen a claim of entitlement to service connection for cause of the Veteran’s death is granted. Service connection for cause of the Veteran’s death was denied in an October 1990 decision letter. The AOJ determined that there was no evidence that the Veteran’s death was related to his military service. The AOJ also found that the Veteran’s death was not caused by his only service-connected back disability. Since the October 1990 rating decision, evidence added to the record includes an opinion by a physician assistant submitted in August 2020 which suggests that the Veteran’s pancreatic cancer is due to dioxin exposure during Vietnam. During the hearing, the appellant read an opinion by Dr. E, but this evidence is not included in the file. The Board is remanding the case so that this evidence can be associated with the claims file. As there is evidence of a possible positive nexus opinion between the Veteran’s pancreatic cancer which caused the Veteran’s death and his exposure to Agent Orange during service, the Board concludes that a previously identified defect has been cured, and that the claim may be reopened. The reopened claim is addressed in the remand that follows. REASONS FOR REMAND 1. Entitlement to service connection for cause of the Veteran's death is remanded. During the September 2020 Virtual Board hearing, the appellant read into the record, an opinion provided by Dr. E. Dr. E. opined that the Veteran’s exposure to Agent Orange during service caused his pancreatic cancer which led to his death. The appellant and her representative indicated that this opinion had been submitted to the Board. After a thorough review of the claims file, the Board found that this opinion from Dr. E. was missing. The appellant should be allowed an opportunity to submit this highly probative piece of evidence before the claim is adjudicated. The matters are REMANDED for the following action: 1. Request that the appellant and her representative submit the opinion by Dr. E. that was read by the appellant during the virtual hearing. 2. If the opinion Dr. E. is not available or submitted to the VA within a reasonable amount of time, an opinion should be obtained by a physician as to whether it is at least as likely as not that the Veteran’s presumed exposure to Agent Orange caused or aggravated the Veteran’s pancreatic cancer. The examiner’s attention is directed to the appellant’s assertions that pancreatic cancer begins 20 years prior to being diagnosed. 3. An opinion is only needed if Dr. E.’s opinion is not received. 4. Readjudicate the claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the appellant, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.