Citation Nr: 18160435
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-47 378
DATE:	December 26, 2018
ORDER
As new and material evidence has been received, the claim for service connection for cause of the Veteran’s death is reopened.
REMANDED
Entitlement to service connection for cause of the Veteran's death is remanded.
FINDING OF FACT
New and material evidence has been received to reopen the claim of entitlement to service connection for cause of the Veteran’s death.
CONCLUSION OF LAW
New and material evidence has been received to reopen the claim of entitlement to service connection for a sinus condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a)
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served from September 1966 to December 1969. This matter comes before the Board on appeal from the Department of Veterans’ Affairs (VA) Regional Office (RO).
1. New and material evidence has been submitted and the case is reopened
New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The Appellant originally filed a claim for service connection for cause of the Veteran’s death in June 1999. The RO denied the claim on the basis that the Appellant did not provide sufficient evidence to demonstrate a nexus between the Veteran’s service and his death from esophagal cancer. The Appellant did not file an appeal within the one-year period following the decision, making it final.
Since the June 1999 rating decision, the Appellant has presented new and material evidence which warrants a re-opening of the case. Such new evidence includes in pertinent part, a December 2017 medical report from a private doctor citing the Veteran’s health history. The report notes that the service treatment records noted ulcers by history and indicated that without workup or definitive diagnosis, it is just as feasible that “ulcers” in service was actually gastro-esophageal reflux disease (GERD). The examiner noted that symptoms of GERD and ulcers can be similar.  The examiner indicated that it is plausible that the Veteran suffered from GERD rather than ulcers during service, which led to Barrett’s esophagus. The doctor notes that GERD and Barrett’s esophagus only lead to cancer in a small percentage of people. However, he further states while it is unknown whether the Veteran had Barrett’s esophagus, it is highly likely that the Veteran suffered from GERD, which led to Barrett’s esophagus, which ultimately led to esophageal cancer.
The doctor further cites the Zumwalt study which asserts that esophagal cancer is among the diseases that could have resulted from exposure to herbicide agents. The Veteran served in Vietnam and is presumed to have been exposed to herbicides.
The above opinion was not of record at the time of the June 1999 rating decision.  The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010).
REASONS FOR REMAND
1. Entitlement to service connection for cause of the Veteran's death is remanded.
The Veteran died in 1999. The death certificate lists the immediate cause of death as esophagal cancer. The Board notes that the Veteran was not service connected for any disabilities at the time of his death.
The Appellant asserts that the Veteran’s esophagal cancer was caused by his exposure to herbicide agents while serving in Vietnam. 
The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A (a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A (d), is applicable to claims for service connection for the cause of the Veteran’s death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A (a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348.
The private opinion in not adequate to establish a service connection as it does not definitively state whether it is more likely than not that the Veteran suffered from GERD, and if so whether it led to esophagal cancer, only that was a possibility. Moreover, the opinion contains contradictory statements as it notes that only a small percentage develop cancer as a result of GERD and Barrett’s esophagus, while at the same time asserting that is likely that if the Veteran had GERD and Barrett’s esophagus that it did lead to his esophageal cancer. The Board finds that an opinion is necessary.  The matter is REMANDED for the following action:
1. Arrange to obtain a medical opinion from an appropriate examiner regarding the cause of the Veteran’s death. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the medical professional.
2. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran suffered from GERD during service, and if so, was the Veteran’s esophagal cancer was caused by a disease in service, to include GERD?
3. Is it at least as likely as not that the Veteran’s esophagal cancer was caused by exposure to herbicide agents while serving in Vietnam?
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Luby, Associate Counsel 

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