Citation Nr: 18123930
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-36 276
DATE:	August 3, 2018
ORDER
New and material evidence having been submitted, the claim of service connection for the cause of the Veterans death, is reopened.  To this extent and to this extent only, the appeal is granted.
REMANDED
Entitlement to service connection for the cause of the Veteran’s death is remanded.
FINDINGS OF FACT
1. In a final rating decision issued in December 2002, the RO denied the Veteran’s service connection claim for the cause of the Veteran’s death.  The Appellant was notified of that decision, but did not file a Substantive Appeal or submit new and material evidence within a year of the rating decision.
2.  More than one year since the issuance of this prior final decision, new evidence associated with the record relates to a previous unestablished fact necessary to substantiate the claim of service connection for the cause of the Veterans death and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The December 2002 rating decision in which the RO denied the claim of entitlement to service connection for the cause of the Veteran’s death is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  
2. Evidence received since the final December 2002 determination wherein the RO denied the Appellant’s claim of service connection for the cause of the Veterans death, is new and material, and the Appellant’s claim for that benefit is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1963 to June 1984, which included service in the Republic of Vietnam.  He died in September 1994, and the appellant is his surviving spouse.  The appellant is appealing the May 2014 rating decision that denied her claim seeking to reopen her previously-denied service connection claim for the cause of the Veteran’s death.  
New and material evidence having been submitted, the claim of service connection for the cause of the Veterans death, is reopened.
The Regional Office (RO) denied the Veteran’s initial service connection claim for cause of the Veteran’s death in a December 2002 rating decision, and this rating decision was accompanied by a contemporaneous notification to the Appellant of her right to appeal the decision.  As the Appellant did not appeal this rating decision, but rather submitted a statement in which she expressly stated she would not appeal this decision, but rather refile her claim after the passage of laws expanding the diseases for which Agent Orange-related incurrence will be presumed, and as no new and material evidence relevant to the claim was associated with the claims file within the year thereafter, the December 2002 rating decision became final.  38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.  
Nevertheless, a final denial of a service connection claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  New evidence is defined as 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision-makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 
As reflected in the December 2002 rating decision, the RO denied the Appellant’s claim after concluding that the evidence of record failed to establish a nexus between the Veteran’s terminal renal cancer (which metastasized to his lungs) and service, and because such a nexus could not be presumed based on VA regulations then-in effect.  Evidence associated with the record more than one year after the issuance of this decision includes the Appellant’s assertion (not previously of record) that the Veteran’s terminal cancer was not renal cancer, but rather a primary respiratory cancer, and therefore subject to the provisions that establish a presumption between such cancers and in-service Agent Orange exposure.  See 38 U.S.C. §§ 3.307, 3.309.  While the Appellant, a lay person with no known or reported medical training, lacks the requisite expertise to diagnose the nature of the Veteran’s primary cancer, she is competent to recount the medical diagnoses rendered by others, including by those who treated the Veteran’s terminal illness.  Accordingly, the Board finds that the Appellant’s assertion, which is presumed credible for the purpose of determining whether a claim should be reopened, is sufficient to trigger VA’s duty to obtain a medical opinion regarding the nature of the Veteran’s primary cancer and its potential etiology to the Veteran’s presumed in-service Agent Orange exposure.  Shade, 24 Vet. App. 118.  Thus, the evidence is both new and material, sufficient to reopen the previously-denied claim.  The reopened service connection claim is further addressed below.  
REASONS FOR REMAND
Entitlement to service connection for the cause of the Veteran's death is remanded.
The Appellant asserts that the Veteran’s fatal cancer was a primary respiratory, and not a renal cancer.  The Veteran’s death certificate notes that the causes of death were respiratory failure, pulmonary metastasis, and renal cell carcinoma.  The Board notes that with regard to cancer, “[p]resumptive service connection may not be established under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a) for a cancer listed in 38 C.F.R. § 3.309 (e) as being associated with herbicide exposure, if the cancer developed as the result of metastasis of a cancer which is not associated with herbicide exposure.” VAOPGCPREC 18-97 (May 2, 1997); See Darby v. Brown, 10 Vet. App. at 246 (presumption of service connection for lung cancer was rebutted by medical evidence showing that the stomach was the primary site of the cancer, which metastasized to the lungs); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub nom. Ramey v. Gober, 120 F. 3d. 1239 (Fed. Cir. 1997); cert den., 522 U.S. 1151 (1998) (presumptive service connection refers to the primary cancer site and not a metastatic site).
However, a remand is necessary to obtain an opinion regarding the likelihood that the Veteran’s renal cell carcinoma was due to his service, to include his presumed Agent Orange exposure therein.  
The matter is REMANDED for the following action:
Request that a clinician with appropriate expertise review the Veteran’s claims file and state whether the renal cell carcinoma is it as least as likely as not was related to service, to include his presumed in-service Agent Orange exposure during his two tours of duty in the Republic of Vietnam?  
The clinician is notified that simply because a condition is not listed under 38 C.F.R. § 3.309 (e) does not preclude the opinion provider from finding that it is etiologically related to the Veteran’s Agent Orange exposure.
(Continued on the next page)
 
A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why.
 
A.J. Spector
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Nicole L. Northcutt, Counsel 

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