Citation Nr: 21021465 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-50 360 DATE: April 13, 2021 ORDER 1. New and material evidence to reopen the claim of entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for cause of the Veteran’s death has been received. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. REMANDED 3. The reopened claim of entitlement to service connection for cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. A December 2010 rating decision denied service connection for cause of death based on a finding that the Veteran’s cause of death was not incurred in or otherwise related to service, to include as due to herbicide agent exposure. The appellant was notified of the decision and did not appeal it. 2. In an August 2014 rating decision, the Regional Office (RO) continued the denial service connection for the Veteran’s cause of death based on a finding that the Veteran’s cause of death was not incurred in or otherwise related to service. The appellant was notified of the decision and did not appeal it. 3. Evidence received subsequent to the August 2014 rating decision denying service connection for cause of death is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. The death certificate shows the immediate cause of the Veteran’s death was cardiopulmonary arrest. Other significant conditions contributing to death were hypertension and hypercholesterolemia. 5. At the time of the Veteran’s death, he was not service connected for any disability. 6. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred approximately 32 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The December 2010 and August 2014 rating decisions denying service connection for the Veteran’s cause of death is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for cause of death on the basis of new and material evidence has been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to DIC under the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from July 1971 to July 1975. The appellant testified in support of these claims during a videoconference hearing held before the undersigned Veterans Law Judge in October 2020. A copy of the transcript is in the claims file. New and Material Evidence 1. New and material evidence to reopen the claim of entitlement to service connection for the Veteran's cause of death If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Only evidence presented since the last final denial on any basis will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. The Board finds that new and material evidence to reopen the claim for service connection for the Veteran’s cause of death has been received. The reasons follow. The claim for service connection for the Veteran’s cause of death was initially denied in a December 2010 rating decision based on a finding that the Veteran’s cause of death was not incurred in or otherwise related to service, to include as due to herbicide agent exposure. The appellant was notified of this determination in a December 2010 letter, which included information about the appellant’s appeal rights. The appellant did not appeal this decision. Thus, the December 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the December 2010 rating decision included the Veteran’s DD Form 214, the Veteran’s service treatment records, and his death certificate. The appellant sought to reopen the claim in December 2013. The appellant submitted statements in support of her claim and private medical treatment records from Monroe County Hospital in close proximity to the Veteran’s death. In an April 2014 rating decision, the Regional Office (RO) reopened the appellant’s claim but continued the denial of service connection for the cause of death. The appellant was notified of the determination in April 2014, and she submitted a Notice of Disagreement in June 2014. However, the appellant requested to reopen her claim in September 2016. She also withdrew her appeal in November 2016 and wished to have her claim reconsidered by the adjudication team. Thus, the April 2014 rating decision is final. As part of the application to reopen the claim, the appellant submitted a letter from Mark Koch, D.O., in September 2016. Dr. Koch stated that the Veteran was treated by him at Monroe County Hospital on December 25, 2007 for sudden cardiopulmonary arrest. Dr. Koch stated that the emergency team was unable to successfully resuscitate the Veteran. Furthermore, Dr. Koch stated that his impression was the Veteran’s cardiopulmonary arrest was due to cardiac ischemia caused by coronary artery disease. Additionally, VA sought a nexus medical opinion related to the Veteran’s cause of death in January 2017, and the examiner provided a negative opinion. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in April 2014. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The September 2016 letter by Dr. Koch and the January 2017 VA examination are new and material to the appellant’s claim that the Veteran’s cause of death was incurred in or related to service. The additional evidence relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. Furthermore, the evidence received since the last final denial is not duplicative or cumulative of the prior evidence of record. Thus, the Board finds that the new evidence raises a possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the additional evidence received since the August 2014 decision is new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the claim of service connection for cause of death is reopened. The Board finds that the reopened claim warrants additional development and is addressed in the remand section. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 The appellant believes she is entitled to DIC under 38 U.S.C. § 1318. A surviving spouse may establish entitlement to DIC in the same manner as if a veteran’s death were service connected where it is shown that a veteran’s death was not the result of willful misconduct, and a veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) a veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The claims file documents that the Veteran died in December 2007. At the time of the Veteran’s death, he was not service connected for any disability. In light of the foregoing, the record does not show that he was in receipt of a total service-connected disability rating for 10 years at the time of his death. Moreover, the Veteran’s death occurred approximately 32 years after his separation from active duty service in June 1975. Lastly, the Veteran’s service treatment and personnel records do not suggest that he was a former POW. Therefore, there is no legal basis for entitlement to DIC under the provisions of 38 U.S.C. § 1318. This issue is not impacted by the claim for service connection for cause of the Veteran’s death. Thus, the appellant’s claim must be denied as a matter of law. The Board is sympathetic to the appellant’s loss and recognizes the Veteran’s honorable service to his country, however it is bound by the law and regulations governing the payment of VA benefits. REASONS FOR REMAND 3. Entitlement to service connection for cause of the Veteran’s death The appellant asserts that service connection is warranted for the cause of the Veteran’s death. In a December 2013 statement, the appellant stated that the Veteran’s death was due to ischemic heart disease (IHD). In a January 2014 statement, the appellant wrote that the Veteran had high blood pressure while in the military, as his job was moved several times because of the stress, which caused his blood pressure to skyrocket. In the September 2017 VA Form 9, Appeal to the Board, the appellant stated that she feels the Veteran’s service and exposure to Agent Orange exposure contributed to his death. She stated that he had problems with his breathing and lungs. The finds that further development is needed to obtain an addendum opinion as to whether the Veteran’s hypertension is related to in-service herbicide exposure. The National Academy of Science (NAS) Institute of Medicine found hypertension with “sufficient” evidence of an association with exposure to Agent Orange in its Update 11 (2018). According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The Board finds that a remand is necessary in order to obtain an addendum opinion as to whether the Veteran’s hypertension is related to his acknowledged in-service exposure to herbicide agents in light of such determination. The matter is REMANDED for the following action: Return the record to the VA examiner who offered the January 2017 opinion addressing the etiology of the Veteran’s cause of death. The record and a copy of the below facts must be made available to, and reviewed by, the examiner. If the January 2017 VA examiner is not available, the record should be provided to an appropriate examiner to render the requested opinion. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty from July 1971 to July 1975 with approximately five months in Vietnam. • The Veteran is presumed to have been exposed to herbicide agents while in Vietnam. • The Veteran died in December 2007 with an immediate cause of death of cardiopulmonary arrest and hypertension and hypercholesterolemia were listed as other significant conditions contributing to death but not resulting in the underlying cause. See VBMS entry with document type, “Death Certificate,” receipt date 11/12/2009. • The Veteran’s wife has alleged that the Veteran had hypertension during service and/or that his death is the result of herbicide exposure. • The Veteran’s service treatment records show the following blood pressure readings: 1. November 1971: 108/70 (p. 33, item 57); 2. January 1973: 112/82 (p. 32, item 57); 3. January 1974: 130/70 (sitting) & 134/74 (standing) (p. 30, item 57); 4. December 1974: 130/68 (sitting) & 134/72 (standing) (p. 52, item 57). See VBMS entry with document type, “STR – Medical,” receipt date 5/6/2010. • December 2007 private medical records show the Veteran was brought to the hospital at that time in an unresponsive state. The past medical history was documented to be positive for hypertension and elevated cholesterol. Heart disease was not circled. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 06/09/2014, p. 3. • The ambulance service record shows that the Veteran’s wife reported the Veteran had expressed he was not feeling well and went to bed. She went to check on him and described him as blue in appearance. An assessment of cardiopulmonary arrest was documented. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 06/09/2014, p. 7. • The December 2007 hospital records document that the Veteran’s wife was told that the Veteran was not a candidate for organ donation secondary to unknown cause of death. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 06/09/2014, p. 5. • In a September 2016 letter, Mark Koch, D.O., wrote that he treated the Veteran on the day he arrived at the hospital for sudden cardiopulmonary arrest where the ER team was unable to successfully resuscitate the Veteran. He wrote that his impression was that the Veteran’s cardiopulmonary arrest was due to cardiac ischemia caused by coronary artery disease. See VBMS entry with document type, “VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child,” receipt date 09/29/2016, p. 9. • In a January 2017 medical opinion, a VA examiner wrote that “cardiopulmonary arrest” was a term that essentially means that the heart and/or lungs stop. She stated this was not a cause of death but only a mechanism by which most people die. She added that it gave no information about what caused the death. She wrote that the cause of death needed to be an anatomic cause of death and that the most informative way to determine cause of death is via autopsy, which is a surgical procedure whereby an external examination and then internal examination is performed. The examiner noted this was declined by the family, according to ER records. She added that in this case, such information would be necessary, especially in light of there being no other medical records submitted, other than a couple of lab reports from years before. She also wrote that the other necessary item would be a full toxicology report, in order to determine cause of death, to a reasonable degree of medical certainty. The examiner addressed why she found it was less likely than not that the Veteran’s death was due to coronary artery disease. See VBMS entry with document type, “C&P Exam,” receipt date 01/27/2017. • While VA obtained an opinion on whether the Veteran died of coronary artery disease, it did not obtain an opinion on whether the Veteran’s hypertension, which was listed on the death certificate, may be related to service, to include herbicide exposure. • In a 2018 update, the National Academy of Science (NAS) Institute of Medicine found “limited or suggestive” evidence of a relationship between exposure to herbicide agents and the development of hypertension. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. • Link to NAS study: https://www.nap.edu/read/25137/chapter/1. Hypertension is discussed beginning on page 487, which page number may be entered where it says, “Page # of 716” at the top where it says, “Contents.” (Enter page number where “#” is shown.) • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The VA examiner is requested to provide the following opinions: 1. Is it at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran’s hypertension had its onset in service from July 1971 to July 1975? Please state upon what facts and medical principles you base the opinion. 2. If the answer to (1) is negative, is it at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran’s hypertension is related to his presumed exposure to herbicide agents during active duty? In offering such opinion, the examiner should address the NAS Institute of Medicine’s Veterans and Agent Orange: Update 11 (2018) that upgraded hypertension from the category of “limited or suggestive” evidence of an association with herbicide exposure the category of “sufficient” evidence. The examiner is advised that the sole basis of a negative opinion cannot be that hypertension is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.