Citation Nr: 22014305 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-08 715 DATE: March 12, 2022 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death is granted. Entitlement to accrued benefits is denied. REMANDED Entitlement to DIC benefits based on service connection for the Veteran's cause of death is remanded. Entitlement to survivor's pension benefits is remanded. FINDINGS OF FACT 1. In an October 2014 rating decision, VA denied service connection for the Veteran's cause of death. The Appellant did not file a notice of disagreement; thus, the October 2014 rating decision became final. Evidence received since the October 2014 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. 2. The Veteran did not have any pending claims at the time of his death in July 2004. CONCLUSIONS OF LAW 1. New and material evidence has been received and the criteria to reopen a claim of entitlement to DIC benefits based on service connection for the Veteran's cause of death have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 2. The criteria for accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1955 to September 1957, October 1957 to September 1966, August 1967 to July 1970, and July 1970 to June 1976, including combat service in the Republic of Vietnam. The Veteran served more than 20 years on active duty and his decorations include the Combat Infantryman Badge. The Veteran unfortunately died in July 2004. The Appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2017 decision which declined to reopen a claim of entitlement to DIC benefits based on service connection for the Veteran's cause of death as new and material evidence had not been received, denied entitlement survivor's pension benefits on the basis of excessive income, and denied entitlement to accrued benefits. In October 2021, the Appellant testified before the undersigned Veterans Law Judge at a Board videoconference hearing. Reopening Claims Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to DIC benefits based on service connection for the Veteran's cause of death before addressing the claim on its merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.201. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death. In a November 2004 rating decision, VA denied entitlement to service connection for the Veteran's cause of death on the basis that the evidence did not show that the Veteran's cause of death, listed as sepsis on his death certificate, was a presumptive condition or related to military service. The decision considered the Veteran's service treatment records and VA treatment records through July 6, 2004. The Appellant was notified of the decision by a December 2004 letter. In June 2005, and within one year of the December 2004 letter, the Appellant submitted additional evidence, including an autopsy report from an autopsy performed on July 7, 2004, which showed final diagnoses of abdominal carcinomatosis, pancreatic primary poorly differentiated adenocarcinoma, metastases to the liver, lung, and periportal lymph nodes, ascites, bilateral bronchoalveolar pneumonia, thyroid atrophy, and focal submucosal vascular hemorrhage and diffuse mucosal edema of the urinary bladder. The Board finds that this evidence was new and material; thus, the November 2004 rating decision did not become final. However, on August 2014, the Appellant sought to reopen this claim and in an October 2014 notification letter, VA continued to deny DIC benefits. The Appellant did not file a notice of disagreement; thus, the October 2014 decision became final. Since the October 2014 decision, evidence added to the claims file includes hearing testimony and duplicate VA treatment records. During the October 2021 Board hearing, the Appellant testified that the Veteran delayed seeking treatment for his stomach pain due to his service-connected posttraumatic stress disorder, and that this delay resulted in a more advanced cancer upon diagnosis and ultimately, caused his death. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final October 2014 rating decision. Specifically, the Appellant testified that the Veteran delayed seeking treatment due to a service-connected disability, evidence that was not previously of record. For the purpose of establishing whether new and material evidence has been received, the Appellant's statements are presumed credible. Thus, new evidence submitted since VA's October 2014 rating decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., nexus) necessary to substantiate the claim. Therefore, new and material evidence has been received since VA's October 2014 rating decision and reopening the claim of entitlement to DIC benefits based on service connection for the Veteran's cause of death is warranted. The Appellant's petition is granted only to this extent. 2. Entitlement to accrued benefits. The seeks entitlement to accrued benefits following the Veteran's death. Accrued benefits are monetary benefits, other than insurance or indemnity payments, to which an individual was entitled to at the time of his or her death under existing ratings or decisions or based on evidence in the file at the date of death. 38 U.S.C. § 5121. Entitlement to accrued benefits may be established only if the Veteran had a claim for benefits pending at the time of his or her death or was entitled to benefits under a current rating decision. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). The Veteran had not filed any claims for benefits that were pending with VA at the time of his death. Furthermore, the record shows that the Appellant was issued a payment in the amount of $1,014.00 for the month in which the Veteran died. See December 2004 notification letter. The Board acknowledges that at the October 2021 Board hearing, the Appellant testified that after the Veteran's death, VA sent her a letter stating the VA had granted an increase in benefits for a claim filed prior to the Veteran's death. She, however, was unable to remember the specific details of the letter at the hearing. Upon review, the evidence of record reflects that in February 2011, VA undertook a special review of the Veteran's claims folder in accordance with Nehmer v. U.S. Department of Veterans Affairs (VA), which required the payment of retroactive benefits to certain Nehmer class members. As a result of this review, in an August 2011 rating decision, VA granted an earlier effective date for service connection for diabetes mellitus, type II, for purposes of entitlement to retroactive benefits, evaluated at 20 percent, effective June 15, 2000 until July 6, 2004. VA continued to deny service connection for ischemic heart disease. VA found, however, in an August 2011 notification letter, that while VA had granted an earlier effective date for service connection for diabetes mellitus, no retroactive benefits were warranted. VA explained that the Veteran was not entitled to concurrent benefits for service-connected compensation and miliary retired pay, and that the Veteran's retired pay was the greater benefit. The Appellant did not appeal the initial rating assigned from June 15, 2000, for the Veteran's service-connected diabetes mellitus, type II, or the denial of service connection for ischemic heart disease. Thus, the August 2011 decision became final. As such, additional compensation benefits are not warranted, and the Veteran's retired military pay remained the greater benefit. In the absence of any open and pending claims at the time of the Veteran's death, and in the absence of any entitlement to benefits at the time of death, there is no possibility of entitlement to accrued benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to DIC benefits based on service connection for the Veteran's cause of death because no VA examiner has opined whether the Veteran's service-connected disabilities, including diabetes mellitus, type II, or posttraumatic stress disorder, caused, contributed substantially or materially to cause, or aided or lent assistance to cause, the Veteran's death, to include whether his diabetes increased his risk for pancreatic cancer, a diagnosis on the Veteran's July 2004 autopsy report, or whether any delay in seeking treatment for his abdominal pain due to his posttraumatic stress disorder cause or contributed to his death. A remand is required to obtain a VA medical opinion. 2. Entitlement to survivor's pension benefits is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to survivor's pension benefits at this time. On the Appellant's April 2017 VA Form 21-534 (Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable)), she did not report any unreimbursed medical expenses. However, an April 2017 Social Security Administration (SSA) inquiry reflects the Appellant paid $109 a month in Medicare premiums and on adjudication in July 2017, VA deducted these premiums from the Appellant's countable income. During the October 2021 Board hearing, the Appellant testified that her medical expenses included approximately $250 a month in prescription copayments and that she had previously paid $50 a month in transportation costs to her medical appointments. As the evidence reflects the Appellant's medical expenses may have changed or increased since her April 2017 application for benefits, the Board finds that a remand is warranted to obtain additional information on the Appellant's income and medical expenses throughout the appeal period. The matters are REMANDED for the following actions: 1. Obtain an opinion from an appropriate clinician as to the Veteran's cause of death. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the Veteran's sepsis, abdominal carcinomatosis, pancreatic adenocarcinoma, metastases to the liver, lung, and peripheral lymph nodes, ascites, or any other diagnosis noted on the July 2004 autopsy report, at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the disabilities are not on the list of diseases that are presumptively associated with exposure to herbicide agents. (b) If the Veteran's sepsis, abdominal carcinomatosis, pancreatic adenocarcinoma, metastases to the liver, lung, and peripheral lymph nodes, ascites, or any other diagnosis listed on the July 2004 autopsy report, are not related to in-service exposure to herbicide agents, is it at least as likely as not that the Veteran's service-connected diabetes mellitus, type II, caused, contributed substantially or materially to cause, or aided or lent assistance to cause, the Veteran's death from sepsis, to include increasing his risk for pancreatic adenocarcinoma? (c) If the Veteran's service-connected diabetes mellitus, type II, did not cause, contribute substantially or materially to cause, or aid or lend assistance to cause, the Veteran's death, is it at least as likely as not that any delay in seeking treatment for abdominal pain due to his service-connected posttraumatic stress disorder caused, contributed substantially or materially to cause, or aided or lent assistance to cause, the Veteran's death? In responding to this inquiry, the examiner must assume as true that the Veteran delayed seeking medical care due to his PTSD. Provide a rationale to support the opinions. 2. Request the Appellant provide updated information on her income, net worth, and unreimbursed medical expenses for each year since April 2017 to the present. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.