Citation Nr: 18123952
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-27 037A
DATE:	August 6, 2018
ORDER
As new and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for cause of death has been received, the application to reopen is granted.
Entitlement to service connection for the cause of the Veteran’s death is granted.
FINDINGS OF FACT
1. An unappealed March 2009 rating decision denied reopening of the appellant’s claim for service connection the cause of the Veteran’s death.
2. Evidence submitted subsequent to the March 2009 rating decision bears directly and substantially upon the specific matters under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran’s cause of death.
3. The Veteran’s death in January 2006 from pancreatic cancer was as likely as not caused or aggravated by his service connected hiatal hernia, gastroesophageal reflux disease (GERD) gastric ulcer, duodenitis, and pyloric channel ulcer.
CONCLUSIONS OF LAW
1. The March 2009 RO decision denying reopening of the appellant’s claim is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017).
2. New and material evidence has been received to reopen the claims for service connection for cause of death.  38 U.S.C. § 5108; 38 C.F.R. § 3.156, 4.85 (2017).
3. A disability caused by or aggravated by a service-connected conditions, caused or contributed substantially or materially to cause the Veteran’s death.  38 U.S.C. §§ 1110, 1131, 1112, 1116, 1310, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 1963 to August 1971 and May 1978 to May 1989.  He died in 2006.  The Appellant is the Veteran’s surviving spouse. 
New and Material Evidence
1. Whether new and material evidence was submitted sufficient to reopen the Veteran's claims for service connection for a cause of death
A.  Finality
By way of history, a January 2007 final decision had denied the Appellant’s original dependency and indemnity compensation (DIC) claim for service connection for cause of death. The RO determined that there was no evidence linking the Veteran’s death from pancreatic cancer to his active service.  She did not perfect an appeal.  She also failed to appeal decision dated February 2009 that denied reopening that claim.  The March 2009 decision determined that the Appellant had not submitted new and material evidence to reopen the DIC claim.  The Appellant was notified of the decision, but did not appeal, and there is no indication that new and material evidence was received within a year of this decision.  The decision, therefore, became final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
B.  New and Material Evidence
The Appellant filed a claim to reopen the DIC claim in October 2012.  A January 2013 rating decision denied reopening the claims because no new and material evidence was received.  The Appellant has submitted subsequent evidence and the Board has now determined that new and material evidence has been submitted sufficient to reopen the DIC claim for service connection of cause of death.
VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  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 U.S.C.§ 5108; 38 C.F.R. § 3.156(a).
In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998).  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).  When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).
The Appellant filed a new DIC claim for service connection for cause of death in October 2012.  The evidence received since the March 2009 rating decision includes a February 2014 statement from a private radiation oncologist, Dr. N.T.  This evidence was not of record at the time of prior decision, and relates to unestablished facts necessary to substantiate the claim.  
The new evidence submitted subsequent to the March 2009 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the DIC claim of entitlement to service connection for cause of death.
2. Entitlement to service connection for the cause of the Veteran’s death
A veteran’s surviving spouse is eligible for dependency and indemnity (DIC) benefits when a qualifying veteran dies from a service-connected disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.5(a) (2017).  The service-connected disability may be either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a) (2017).  It is the principal cause if it was “the immediate or underlying cause of death or was etiologically related” to the death.  38 C.F.R. § 3.312(b).  It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1).
For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related.  For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131.  Generally, the evidence must show: (1) the existence of a present disability; (2) 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.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  

The Veteran’s death certificate indicates that the primary cause of death was pancreatic cancer. At the time of the Veteran’s death, he was service connected for hiatal hernia, gastroesophageal reflux disease (GERD) gastric ulcer, duodenitis, and pyloric channel ulcer at 30 percent.  He was also service connected for hypertension at 10 percent, arthritis of the thoracic spine at 10 percent and had non-compensable ratings for bilateral hearing loss and sutured laceration scar of the right wrist.  
The Appellant contends that the Veteran’s service-connected gastric conditions caused or aggravated the Veteran’s pancreatic cancer that ultimately led to the Veteran’s demise.  The Board finds the evidence is in relative equipoise as to a finding that the Veteran’s service connected disabilities caused pancreatic cancer, or otherwise contributed to his death.
A VA examiner’s report from October 2006 concluded that the Veteran’s death from pancreatic cancer is not related to his service connected hiatal hernia, GERD, gastritis, gastric ulcer, duodenitis, or pyloric channel ulcer.
The Appellant’s brief received in December 2016 included an attached February 2014 letter from a radiation oncologist, Dr. N.T.  The letter stated that the Veteran’s service-connected GERD, gastritis, gastric ulcers, duodenitis, and pyloric channel ulcers created an increased risk of developing pancreatic cancer. He added that pancreatic cancer was a relatively rare cancer, and with the exception of race/genetics the Veteran did not have any of the known risk factors. He emphasized that the Veteran’s long history of excess exposure to stomach acids and H Pylori contributed to the development of the pancreatic cancer. Numerous studies were cited to demonstrate a relationship between the two disease processes, to include one that indicated that there was a 20 percent greater chance of developing pancreatic cancer in patients that had ulcers. Based on these studies, he stated that the pancreatic cancer that caused the Veteran’s death was due, at least in part, to his service connected hiatal hernia, GERD, gastric ulcer, duodenitis, and pyloric channel ulcer.
In light of Dr. N.T.’s opinion that the Veteran’s pancreatic cancer was due to the risk factors of his service-connected hiatal hernia, GERD, gastric ulcer, duodenitis, and pyloric channel ulcer, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran’s pancreatic cancer, which ultimately caused his death, was caused or aggravated by his service connected conditions.  See 38 C.F.R. § 3.303.  The benefit-of-the-doubt will be conferred in the Appellant’s favor and her claim for service connection for cause of death is granted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Service connection for the Veteran’s cause of death is warranted.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M.E. Lee, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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