Citation Nr: 21032572 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-45 941A DATE: May 27, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death was denied in an unappealed December 2015 rating decision. 2. Evidence received since the December 2015 rating decision is new and material. 3. Resolving reasonable doubt in the appellant's favor, the Veteran's cause of death was etiologically related to service. CONCLUSIONS OF LAW 1. The December 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the December 2015 rating decision is new and material, and the claim of entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C. § § 5108; 38 C.F.R. § 3.156. 3. The criteria to entitlement for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.03, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1956 until September 1965. The Veteran died in November 2014; the appellant is the Veteran's surviving spouse. In December 2015, a Department of Veterans Affairs (VA) regional office (RO) denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. This claim went unappealed and became final. In April 2018, the RO again denied the claim. The appellant timely appealed and the matter is now before the Board of Veterans' Appeals (Board) for adjudication. The appellant participated in a May 2021 hearing before the undersigned. Although a transcript is not yet associated with the claims file, the Board sees no prejudice to the appellant in issuing a decision as it is granting the claim in full. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death The Board finds that new and material evidence regarding the Veteran's claim for entitlement to service connection for the cause of the Veteran's death has been received since the December 2015 rating decision, to include the appellant's May 2021 testimony and an August 2019 private medical opinion. This new evidence relates to an unestablished factnamely, a nexus between the Veteran's cause of death and servicenecessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for the cause of the Veteran's death is reopened. Service Connection for the Cause of the Veteran's Death The appellant contends that the Veteran's death is related to service. Specifically, she contends that his death was caused by sepsis related to his service-connected left tibia-fibula and ankle. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). The Board finds that service connection is warranted for the cause of the Veteran's death. The Veteran's death certificate indicates that his manner of death was natural and was due to severe chronic obstructive pulmonary disorder (COPD). However, an August 2019 private medical opinion opines that the Veteran's cause of death was not COPD but instead sepsis to his service-connected left tibia-fibula and ankle. The August 2019 opinion stated that the Veteran was examined in the emergency room in October 2014 for "acute blisters of left ankle with probable chronic infection of old hardware with surgical screws." After reviewing the emergency treatment notes, the private examiner opined that the Veteran's COPD did not appear to be a serious problem at this time; he was prescribed Keflex antibiotic and was discharged. The private opinion explained that the emergency treating physician did not even mention the Veteran's respiratory issues as he felt that the left ankle infection was the "main issue." The private examiner also described that in November 2014, the Veteran returned to the hospital and was admitted for IV antibiotics because of cellulitis with drainage and erythema of the left lower extremity; again, his COPD was not noted to be severe at this time. Indeed, the Veteran denied increased shortness of breath at time of admission and the emergency physician stated that his acute exacerbation of COPD was "clinically better." Given how the Veteran's most severe condition at the time of his death was the sepsis from the infection to his service-connected left lower extremity disability, the examiner concluded that this contributed to his ultimate cause of death. The Board finds that service connection for the cause of the Veteran's death is warranted. The Board affords great probative value to the August 2019 private medical opinion as it is based upon years of personalized treatment of the Veteran and a thorough review of the Veteran's medical history. See Black v. Brown, 10 Vet. App. 279 (1997). Furthermore, there is no contradicting medical evidence regarding a nexus. While the Veteran's death certificate lists COPD as the primary cause of his death, this is significantly outweighed by the thorough August 2019 private opinion. Indeed, the August 2019 opinion stated that the Veteran's COPD was not a severe issue at the time of his hospitalization in November 2014. The Board finds that this private opinion provides persuasive evidence of a nexus between the Veteran's cause of death from sepsis to his service-connected left lower extremity disabilities. Thus, all the elements necessary for establishing service connection for the cause of the Veteran's death are present. Accordingly, the appellant's claim is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.