Citation Nr: 21028612 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-18 895 DATE: May 11, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for multiple myeloma is granted. REMANDED Entitlement to service connection for multiple myeloma is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to service-connected burial benefits is remanded. FINDINGS OF FACT 1. In a July 2015 rating decision, the Regional Office (RO) denied service connection for multiple myeloma. 2. Since the final July 2015 rating decision, new evidence has been associated with the claims file which raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for multiple myeloma. CONCLUSIONS OF LAW 1. The July 2015 rating decision that denied the Veteran's claim for service connection for multiple myeloma is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2020). 2. Since the July 2015 rating decision, new and material evidence has been received to reopen the service connection claim for multiple myeloma. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to August 2007. He died in July 2018. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2017, September 2018, and October 2018 decisions of a Department of Veterans Affairs (VA) Regional Office. The Board acknowledges that in an October 2018 letter, the RO granted the Appellant's request for substitution. In November 2019, the Board denied claims to reopen service connection for multiple myeloma, service connection for the cause of the Veteran's death, and service-connected burial benefits. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, CAVC granted a joint motion for remand (JMR), vacated the Board's decision and remanded the claims for further proceedings consistent with the JMR. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the proscribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 or consideration of a new theory of entitlement. Id. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for multiple myeloma. In the August 2020 JMR, the parties agreed that the Board erred in failing to provide an adequate statement of reasons or bases that discussed whether the Appellant presented new and material evidence sufficient to reopen the service connection claim for multiple myeloma. The parties instructed the Board to reassess its competency determination of the June 2018 affidavit and to discuss whether the lay statements satisfy the low threshold of Shade to reopen the claim. The claim for service connection for multiple myeloma was initially denied in a July 2015 rating decision on the basis of no nexus to service. The Veteran timely submitted a NOD in November 2015. A statement of the case (SOC) was issued in November 2016; however, the Veteran did not submit a substantive appeal Although the following evidence was received after the July 2015 rating decision: April 2015 and November 2015 letters containing positive nexus opinions from a private physician, October 2016 VA examiner negative nexus opinion on the relationship between the Veteran's multiple myeloma and service, this evidence was considered in the November 2016 SOC. As the Veteran did not submit a substantive appeal, the July 2015 rating decision is final. Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In October 2017 the Veteran submitted an application requesting reopening of the previously denied claim of service connection for multiple myeloma. In a November 2017 rating decision, the RO denied the request to reopen the claim. The Veteran submitted a NOD in March 2018. Unfortunately, he died in July 2018. That same month, his surviving spouse submitted a request for substitution. In an October 2018 letter, the RO granted the request for substitution. A SOC was issued in May 2019 and a substantive appeal was timely filed in June 2019. The claim is now properly before the Board. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Evidence received since the November 2016 SOC consists of medical treatment records and the Veteran, and other layperson's, statements. The Veteran submitted private medical records documenting an initial diagnosis of multiple myeloma in December 2013 and subsequent treatment. In a March 2018 letter, the appellant's representative contended that the Veteran was entitled to presumptive service connection and requested additional development of the claim. In a June 2018 affidavit, the Veteran asserted that his multiple myeloma was due to service and reported exposure to burn pits and toxic fumes during service. The Veteran is competent to report his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In support of the claim, the Appellant submitted a March 2021 private medical opinion stating that the Veteran's multiple myeloma was at least as likely as not a direct result of his exposure to Benzene from burn pits during service. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely the existence of a relationship between the Veteran's multiple myeloma and active duty service. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Shade, 24 Vet. App. at 117. REASONS FOR REMAND 1. Entitlement to service connection for multiple myeloma is remanded. The Veteran alleged that his multiple myeloma was due to exposure of toxic fumes from burn pits while stationed at Balad Air Base (Iraq) from September 2005 to September 2006 during service. See June 2018 Affidavit. He reported that the pits were used to burn anything, including waste, producing heavy smoke across the camp causing him to cough. Id. The Veteran was most recently afforded a VA examination in October 2016. The Veteran contended that his exposure to environmental hazards while serving in Southwest Asia resulted in his diagnosis of multiple myeloma in 2013. In the alternative, he alleged that his low back pain during service and following 2007 discharge from service was a symptom of undiagnosed multiple myeloma. The examiner opined that the Veteran's multiple myeloma is less likely than not related to specific exposure events while serving in Southwest Asia. The examiner also opined that the Veteran's multiple myeloma is less likely than not due to complaints of joint pain during and after service. As rationale, the examiner acknowledged review of April 2015 private medical records noting the Veteran's report of exposure to "DEET, smoke from burning trash and feces, sand and dust and sometimes expos[ure] to pesticide-treated uniforms, smoke from oil fire, vehicle and truck exhaust fumes, JP8 or other fuels of pains." However, medical literature does not support an environmental exposure in Southwest Asia as the cause of multiple myeloma. The examiner referenced extensive medical literature including epidemiologic data suggesting a genetic predisposition as well as other potential risk factors, such as shared genes or environmental factors. The examiner acknowledged that exposure to radiation, Benzene, and other organic solvents may play a role in the development of multiple myeloma, but the number of cases reported for these risk factors is small. In comparison, radiologists have indicated that long-term radiation exposure, nuclear plant workers, farmers exposed to herbicides and insecticides, and those who employ Benzene and petroleum products have an increased risk of developing multiple myeloma. In a March 2021 opinion, a private physician opined that the Veteran's multiple myeloma, and his cause of death, were at least as likely as not a direct result of exposure to Benzene through burn pits during service because he did not have significant risk factors and was provided a diagnosis at a significantly younger age than the average age. The private physician referenced medical literature on known risk factors, human exposure to Benzene, and latency for multiple myeloma cancer. The private physician acknowledged review and disagreement with the October 2016 VA medical opinion because the examiner did not provide analysis of the medical literature reviewed nor indicate review of studies discussing the presence of Benzene in burn pits and the relationship between multiple myeloma. The Board finds the March 2021 private physician opinion inadequate to decide the claim on appeal because the physician inaccurately characterized the evidence of record. The private physician indicated disagreement with the October 2016 VA medical opinion because, in part, the examiner did not discuss the presence of Benzene in burn pits and relationship between multiple myeloma. However, the October 2016 VA examiner specifically referenced medical literature discussing the relationship between Benzene and multiple myeloma in formulating the requested opinion. As such, the March 2021 private physician opinion is inadequate. In light of the June 2018 Affidavit received since the October 2016 VA medical opinion that documents in detail the Veteran's assertions of chemical exposure due to burn pits, and March 2021 private medical opinion, the Board finds that an additional VA medical opinion is necessary. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 321 (2007). 2. Entitlement to service connection for the cause of the Veteran's death is remanded. 3. Entitlement to service-connected burial benefits is remanded. Finally, because a decision on the service connection for multiple myeloma claim could significantly impact a decision on cause of death and burial benefits claims, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). A remand of the claims for cause of death and burial benefits is required. The matters are REMANDED for the following action: 1. Obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's multiple myeloma. The record must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's multiple myeloma had its clinical onset during service or is otherwise related to the Veteran's active duty service, to include reported environmental hazards such as toxic fumes from burn pits. The examiner should specifically comment on relevant records, including the October 2016 VA opinion and March 2021 private opinion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion, including the June 2018 Affidavit. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Readjudicate the issues remaining on appeal. If any benefit sought is not granted, then the Appellant and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.