Citation Nr: 1103413 Decision Date: 01/26/11 Archive Date: 02/01/11 DOCKET NO. 05-00 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from July 1968 to January 1970. The Veteran died on March [redacted], 2003. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant appeared and testified at a hearing held at the RO before a member of the Board in September 2005. A copy of the transcript of this hearing has been associated with the claims file. By letter dated in April 2010, the appellant was advised that the member of the Board who conducted that hearing is no longer employed by the Board and she offered the opportunity to have another hearing. By letter from her attorney received in May 2010, the appellant declined another hearing. Consequently, the Board may proceed to adjudicate the appellant's claim at this time. By a decision issued in June 2006, the Board denied the appellant's claim. The appellant appealed to the Court of Appeals for Veterans Claims (Court). In January 2008, the Court vacated the Board's June 2006 decision and remanded the appellant's appeal to the Board for further development pursuant to a Joint Motion for Remand. In November 2008, the Board obtained a VHA medical opinion from an oncologist. By decision issued in February 2009, the Board again denied the appellant's claim. The appellant again appealed to the Court. Pursuant to a Joint Motion for Remand, in November 2009, the Court vacated the February 2009 Board decision and remanded the appellant's appeal to the Board. FINDINGS OF FACT 1. The Veteran died on March [redacted], 2003, as the result of a glioblastoma multiforme. 2. The Veteran served eight months in the Republic of Vietnam and is, therefore, presumed to have been exposed to herbicides in service. 3. The evidence is in equipoise whether the cause of the Veteran's death, in other words the glioblastoma multiforme, is related to his exposure to herbicides while serving in the Republic of Vietnam. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for the cause of the Veteran's death, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Dependency and indemnity compensation is payable to a surviving spouse, child, or parent either because of a service-connected death occurring after December 31, 1956, or pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. 38 C.F.R. § 3.5. Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The determination as to whether these Hickson requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran served on active duty from July 1968 to January 1970, including eight months of service in the Republic of Vietnam. See DD214. He died in March 2003. The Veteran's death certificate shows that the immediate cause of death was glioblastoma. It also shows that "Testicular carcinoma" and "Agent Orange exposure" were "[o]ther significant conditions contributing to death but not resulting in the underlying cause." No autopsy was performed. At the time of the Veteran's death, he was service-connected for posttraumatic stress disorder, a shell fragment wound of the abdomen area with damage to muscle group XIX, scarring of the duodenal cap, a scar of the left cheek due to residuals of a shell fragment wound with retained foreign body, and an ingrown toenail on the right great toe. The appellant has not contended that any of these service-connected disabilities either caused or contributed to the Veteran's death. Rather, she argues that the Veteran's death was caused or contributed to by his exposure to Agent Orange while serving in the Republic of Vietnam. She submits two theories: (1) the glioblastoma was caused by exposure to Agent Orange; and (2) the glioblastoma is a metastasized cancer from the Veteran's previous testicular cancer, which she claims was due to exposure to Agent Orange. The appellant also argues that the Veteran's cancers may have been the result of him taking Dapsone in service to "combat malaria", which she claims was found to be a carcinogen and has submitted evidence to that effect. She has also alleged exposure to DDT as a cause of the Veteran's cancers. Finally, the appellant has argued that the cancerous tumor in the Veteran's brain was not glioblastoma multiforme, but another type of cancer for which VA has recognized an association with exposure to herbicides. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) Note 1; 75 Fed. Reg. 53,202 (August 31, 2010). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 75 Fed. Reg. 53,202 (August 31, 2010) (to be codified as Note 3 in 38 C.F.R. § 3.309(e)). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996). A list of specific conditions not having a positive association was recently published by the Secretary. See Notice, 75 Fed. Reg. 81,332 (December 27, 2010). For presumptive service connection to be warranted, the herbicide-related disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA General Counsel has determined that the regulatory definition of "service in the Republic of Vietnam" in 38 C.F.R. § 3.307(a)(6)(iii), requires that an individual actually have been present within the boundaries of the Republic of Vietnam to be considered to have served there, through inclusion of the requirement for duty or visitation in the Republic of Vietnam. VAOPGCPREC 27-97. In the present case, although the Veteran served in Vietnam and is entitled to the presumption of exposure to herbicides pursuant to 38 C.F.R. § 3.307(a)(6)(ii), the Board finds that presumptive service connection is not warranted for the cause of the Veteran's death because VA has not recognized cancers of the brain and nervous system (such as the Veteran's glioblastoma) as having a positive association with exposure to herbicides. Service connection may still be granted, however, if there is adequate evidence to establish that the etiology of the Veteran's glioblastoma was herbicide exposure in the Republic of Vietnam. Of record are VA and private medical records from December 2002 through March 2003, which show how the diagnosis of glioblastoma was arrived at and includes the terminal records from the Community Hospice of Northeast Florida. These treatment records do not provide any opinion as to the possible etiology of the Veteran's glioblastoma. The appellant has tried to establish an etiology by her own statements and with internet articles. As a lay person, however, she is not competent to establish a medical etiology merely by her own assertions because such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Because the appellant is not professionally qualified to suggest a possible medical etiology, her statements are afforded little weight as to whether a nexus exists between the Veteran's glioblastoma and his presumed exposure to herbicides while serving in the Republic of Vietnam. As to the internet articles the appellant submitted, a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999).; see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The articles submitted by the appellant were not accompanied by the opinion of any medical expert linking the Veteran's glioblastoma to his in-service exposure to herbicides. Thus, the medical articles submitted are insufficient to establish the required medical nexus. However, several medical opinions are of record relating to this question. A VHA medical opinion was obtained in November 2008 in which a VA physician stated that "[a]s glioblastoma multiforme is not on the VA's Agent Orange List of presumptive disabilities ... then the answer is: [n]o I cannot with any acceptable degree of medical certainty and without resort to speculation - that (sic) there is any basis for the inclusion of 'Agent orange exposure' as either a principle or a contributory cause of death." Based upon this medical opinion, the Board issued a decision in February 2009 denying the appellant's claim. The appellant appealed that denial to the Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in November 2009 the Court vacated the February 2009 Board decision and remanded the appellant's appeal. In the Joint Motion for Remand, the parties agreed that the Board had erred in relying on the November 2008 VHA medical opinion as it was inadequate because the sole basis for the VHA examiner's opinion that there was no relationship between Agent Orange exposure and glioblastoma multiforme was that it was not on the presumptive list of cancers. As a consequence of the Joint Motion for Remand, therefore, this VHA medical opinion is inadequate and cannot be utilized in deciding the appellant's case at this time. The appellant's appeal was returned to the Board and, in June 2010, another VHA opinion was requested. In making the request, the Board noted that the appellant has also claimed that the Veteran's glioblastoma may also have been caused by exposure to DDT and/or Dapsone, that the Veteran's glioblastoma was a metastasized cancer from the Veteran's previous testicular cancer, and that the Veteran's cancer was not glioblastoma but another form of cancer for which VA has recognized an association with exposure to herbicides. Consequently, the Board requested that the VHA medical expert (an oncologist preferably with knowledge on diseases associated with herbicide and other chemical exposure) to answer the following questions after reviewing the claims file: 1. Is glioblastoma multiforme the appropriate diagnosis of the brain tumor that is listed on the death certificate as the primary cause of the Veteran's death? Please answer yes or no and explain your answer referring to all supporting evidence. 2. Is it at least as likely as not (i.e., at least a 50 percent probability) that the primary cause of the Veteran's death (i.e. glioblastoma multiforme) is proximately due to or the result of one of the following: (1) exposure to herbicides (e.g., Agent Orange) in the Republic of Vietnam; (2) the Veteran's intake of Dapsone tablets in service; or (3) exposure to DDT in the Republic of Vietnam? 3. Was the glioblastoma multiforme a primary cancer or a metastasized cancer from the Veteran's prior testicular cancer? If it was a metastasized cancer, is it at least as likely as not that the testicular cancer the Veteran had in 1995 was proximately due to or the result of one of the following: (1) exposure to herbicides (e.g., Agent Orange) in the Republic of Vietnam; (2) the Veteran's intake of Dapsone tablets in service; or (3) exposure to DDT in the Republic of Vietnam? 4. Is it at least as likely as not that the Veteran's testicular cancer contributed materially and significantly to his death, that it combined to cause death; or that it aided or lent assistance to the production of death? The requested VHA medical opinion was received in September 2010. The following were the medical expert's responses to the above questions: 1. Yes, the patient was diagnosed with glioblastoma multiforme which is a pathological diagnosis made by a biopsy. This diagnosis carries a poor prognosis and led to the patient's placement in hospice care and ultimate demise. 2. No, I do not find any current scientific evidence in the medical literature of an association between glioblastoma multiforme and any of the above mentioned circumstances. 3. The glioblastoma multiforme was a primary cancer. 4. No. The patient's testicular cancer does not appear to have contributed to his death. Essentially, the VHA medical expert's opinion was that the Veteran's death was caused by the glioblastoma and it was not as likely as not that the glioblastoma was proximately due to or the result of exposure to herbicides (e.g., Agent Orange) in the Republic of Vietnam; the Veteran's intake of Dapsone tablets in service; or exposure to DDT in the Republic of Vietnam; moreover, the Veteran's prior testicular cancer was not a contributory cause of the Veteran's death. The appellant was provided a copy of this medical opinion in October 2010. In response, the appellant via her attorney submitted a medical statement from a private physician dated in November 2010. This physician stated that he reviewed the medical records made available to him and that it is clear the Veteran died as a result of glioblastoma multiforme (GBM). He stated that "GBM is a highly aggressive form of brain cancer which, when left untreated, unusually results in death in less than three months. Established brain tumor risk factors (exposure to ionizing radiation, rare mutations of penetrant genes, and familial history) explain only a small proportion of brain tumors. Genetic and environmental characteristics likely play a role in familial aggregation of GBM." (Footnote omitted.) The physician notes that the Veteran's history is notable for active service in Vietnam and presumed exposure to Agent Orange and 2, 3, 7, 8-tetrachlorodibenzo-?-dioxin (TCDD) a common contaminant. Citing to multiple sources, the physician stated that "[m]uch research has been done to find a link between the increasing prevalence of brain cancers and environmental exposures. In 2001, Zhen, et. al. concluded that subjects who worked in plumbing, heating, and air conditioning; electrical services; gasoline service stations; and military occupations experienced a significantly increased risk. Many other studies have found similar relationships between brain cancers and herbicide exposure through farming or the agricultural industry. TCDD has also been shown to cause cancer in laboratory animals at a variety of sites. If TCDD has similar effects on cell regulation in humans, it is plausible that it could have an effect on human cancer incidence as well. More recent research is focusing on the role of dioxin specific receptor activation and subsequent signal transduction pathways which lead to carcinogenesis and glioblastoma formation. To be fair, much of this medical evidence is very recent, but it appears neither the 2008 nor the 2010 VA opinions reviewed or cited any of this growing body of evidence for a nexus between Agent Orange exposure and GBM tumorigenesis." (Footnotes omitted.) This physician further stated that he reviewed the Veteran's treatment history and also carefully reviewed the VA medical opinions in this case. He stated that "[c]urrent research suggests that there is a causal relationship between herbicide exposure and the development of GBM. Particularly given that [the Veteran] experienced no other major risk factors for the development of GBM, aside from the environmental exposure to Agent Orange, it is my medical opinion that it is more likely than not that the glioblastoma of the brain that caused [the Veteran's] death was a result of his in-service Agent Orange exposure. I base this opinion on my review of [the Veteran's] military and medical history as well as my review of the current medical literature on the topic. I concur with the Medical Examiner and agree that Agent Orange exposure was a contributing factor in [the Veteran's] death." It is noted that this physician cited to 11 sources in support of his medical opinion. After considering both of the medical opinions obtained, on their face, the Board cannot conclude that either medical opinion is not factually accurate, fully articulated, and with sound reasoning for the conclusion arrived at. Consequently, both medical opinions are equally probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the evidence as to an etiologic relationship between the Veteran's glioblastoma and his presumed exposure to herbicides while serving in the Republic of Vietnam appears to be in equipoise. The Board also notes that, in June 2010, the VA published the May 2008 Update from the National Academy of Science (NAS). See 75 Fed. Reg. 32,540-53 (June 8, 2010). In the May 2008 Update, with regard to brain cancer, the NAS concluded that the categorization in prior updates (limited or suggestive evidence of no association) should be revised to inadequate or insufficient to determine whether there is an association between herbicide exposure and brain cancer and other nervous system cancers on the basis of detailed evaluation of the epidemiologic evidence from new and previously reported studies of populations with potential herbicide exposure. Id. at p. 32,546. Essentially the NAS upgraded the categorization of brain cancer causing the question of whether there is a link between brain cancer and herbicide exposure to be more uncertain and opening the door for medical opinions on the issue of etiology. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The medical opinions being of equal probative value, the Board finds that the evidence is in equipoise as to whether the etiology of the Veteran's glioblastoma that caused his death was his presumed exposure to herbicides while serving in the Republic of Vietnam. The evidence being in equipoise, the benefit of the doubt is given to the appellant. Consequently, the Board concludes that service connection for the cause of the Veteran's death (i.e., glioblastoma) is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs