Citation Nr: 22014037 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-17 097 DATE: March 11, 2022 ORDER The application to reopen the previously denied claim of entitlement to service connection for cause of death is granted. REMANDED Entitlement to service connection for glioblastoma brain tumor, for accrued benefits purposes, is remanded. Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. In a June 2016 rating decision, the Regional Office (RO) denied the appellant's claim for entitlement to service connection for cause of death; the appellant did not timely perfect an appeal of that decision or submit new and material evidence within a year of the decision. 2. Evidence added to the record since the June 2016 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2016 RO decision that denied service connection for cause of death is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b), 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for cause of death have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1971. The Veteran died in May 2015. The appellant is his surviving spouse and has been substituted for the Veteran for purposes of the current appeal before the Board. As the appellant has been substituted, she is proceeding in the place of the deceased Veteran to the completion of the original claim. 38 U.S.C. § 5121A. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) RO, which denied service connection for cause of death. In October 2021, the appellant testified at a virtual hearing with the undersigned Veterans Law Judge. A transcript of the hearing is of record. The application to reopen the previously denied claim of entitlement to service connection for cause of death is granted. Although the RO adjudicated the claim for service connection for cause of death on the merits, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In a June 2016 rating decision, the RO denied the claim of entitlement to service connection for cause of death finding no evidence that the Veteran's death was related to service. The appellant did not timely appeal this decision or submit new and material evidence within a year of the decision, thus, the June 2016 rating decision became final. Generally, a claim which has been denied in an unappealed Agency of Original Jurisdiction decision is final and may not thereafter be reopened and allowed. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1100. One exception to this rule is that a previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156. New and material evidence cannot be cumulative or 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See 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, either by triggering the Secretary's duty to assist, or through consideration of an alternative theory of entitlement. Id. at 118. At the time of the June 2016 rating decision, evidence relevant to the claim included service treatment records (STRs), military personnel records, VA and private treatment records, to include an October 2014 private medical opinion, photographs, and lay statements. Evidence received since the June 2016 rating decision includes additional lay statements by the appellant, to include those made during the October 2021 Board hearing testimony, and photographs of Camp Snow and the Veteran on active duty in Korea. The evidence regarding the claim for service connection for cause of death is not redundant of the record and raises a reasonable possibility of substantiating the claim as the October 2021 Board hearing testimony, in particular, provides evidence regarding the nature of the Veteran's death. The evidence is thus new and material, and reopening of the claim for service connection for cause of death is warranted. Moreover, as the RO addressed the merits of the claim, there is no prejudice in the Board doing so as well. Cf. Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). REASONS FOR REMAND Entitlement to service connection for glioblastoma brain tumor, for accrued benefits purposes, is remanded. Entitlement to service connection for cause of death is remanded. The appellant asserts that the Veteran's death was due to his glioblastoma brain tumor, and that his glioblastoma brain tumor was related to service because it resulted from the Veteran's exposure to Agent Orange (AO) or ionizing radiation while in Korea at the DMZ. Prior to his death, the Veteran sought service connection for glioblastoma brain tumor. He asserted that this disability was due to radiation exposure while stationed in Korea at the DMZ near an area where they tested nuclear warheads. See April 2015 Notice of Disagreement. The Veteran's death certificate reflects that his cause of death was glioblastoma multiforme. The Veteran's service records show that he served in Korea in and around September 1969 to February 1970. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310. Notably, herbicide agent exposure has been recognized by VA for veterans who visited stipulated areas of certain countries, including in or near the Korean Demilitarized Zone (DMZ), during qualifying time periods. Certain diseases may be presumed to have been incurred in service where a veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Here, although glioblastoma multiforme is not on the enumerated list of presumptive conditions associated with herbicide agent exposure, the appellant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Agency of Original Jurisdiction (AOJ), however, has not conducted sufficient development to establish the Veteran's claimed in-service exposure to herbicides. The appellant has repeatedly referenced her submission of an October 2014 private medical opinion by Dr. M. W. who stated, The patient has been diagnosed with Glioblastoma Multiforme from November 2014. The patient states he served in the Demilitarized Zone of Korea where his detachment performed nuclear testing. The DMZ of Korea known contaminated with herbicides (Agent Orange). He states he was stationed there from 1970 to 1971. With this knowledge, I believe his Glioblastoma Multiforme is directly related to his exposure while assigned in the DMZ in Korea. The appellant has also submitted two emails (dated in July 2015) from a fellow service member attesting to Agent Orange exposure while serving in Korea at Camp Snow and who stated he registered with the AO registry associated with his diabetes mellitus, type II disability. In a January 13, 2016 correspondence from the appellant, she stated that "the Veteran was stationed in Korea at Camp Snow from 1969 to 1970. He would drive his mess truck out into the field into the DMZ. Attached [were] pictures that the Veteran took showing their location at Camp Snow and the rocket that was fired." She was not sure whether his glioblastoma brain tumor was due to radiation exposure or from Agent Orange exposure. See January 2016 VA Form 21-4138. A January 26, 2016 letter from the U.S. Army Dosimetry Center indicates that files were researched for records of exposure to ionizing radiation for the Veteran, and they were unable to locate any records for the Veteran. Yet, there has been no attempt made to verify the Veteran's exposure to herbicide agents. The appellant has also provided additional statements during the October 2021 Board hearing before the undersigned. Thus, as the record does not reflect that appropriate action has been undertaken to verify the Veteran's asserts herbicide agent exposure on or near the Korean DMZ while stationed at Camp Snow, remand is necessary so this development can be undertaken. Additionally, if the AOJ is able to verify the Veteran's exposure to herbicide agents, any additional development should be completed, to include obtaining any necessary medical opinions. Consideration should also be given to the private opinion provided by Dr. M. W. in October 2014. Although Dr. M. W. provided a positive etiological opinion that the Veteran's claimed disability was related to herbicide agent exposure, herbicide agent exposure in this case has not yet been recognized by VA. The matters are REMANDED for the following actions: 1. Ask the appellant to identify any outstanding treatment records relevant to her claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the appellant. If any records are not available, or the appellant identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the appellant of their unavailability. 2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents in Korea. If more details are needed, contact the appellant to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding outlining the steps taken and notify the appellant of VA's inability to verify the in-service exposure. (Continued on the next page) 3. If the Veteran's herbicide agent exposure is verified, conduct any other development deemed necessary, to include obtaining medical opinions from a VA examiner to determine the nature and etiology of the disability for which he was seeking service connection prior to his death (glioblastoma brain tumor). Consideration should be given to the private opinion provided in October 2014 by Dr. M. W. 4. After completing the above development, and any other development deemed necessary, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the appellant, and return the appeal to the Board for appellate review, after the appellant and her representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffith, Shari 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.