Citation Nr: 1118138	
Decision Date: 05/11/11    Archive Date: 05/17/11

DOCKET NO.  07-29 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant and K.E.




ATTORNEY FOR THE BOARD

K. Millikan, Counsel


INTRODUCTION

The Veteran served on active military duty from May 1966 to December 1969, to include service in Vietnam.  The Veteran died in March 2005 and the appellant is the Veteran's surviving spouse.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA).  

This case was initially before the Board in February 2009 and the Board issued a denial of the benefit sought.  A Joint Motion to Vacate was filed with the United States Court of Appeals for Veterans Claims (Court) in September 2010.  The Joint Motion asked the Court to vacate and remand the Board's decision.  The Court granted the motion by an Order dated October 2010.  The case was returned to the Board.  On October 20, 2010, a letter was sent to the appellant and her representative in which she was given 90 days from the date of the letter to submit additional argument or evidence in support of her appeal prior to the Board's readjudication.  In April 2011, the appellant's representative submitted additional argument and a private medical opinion.


FINDING OF FACT

The Veteran died of glioblastoma multiforme which was caused by Agent Orange exposure while serving in Vietnam.


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have been met.  38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the appellant's claim, because it is being granted in full, VA's statutory and regulatory duties to notify and assist are deemed fully satisfied.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).

The appellant alleges that the Veteran's death was due to Agent Orange exposure during service.

If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified diseases.  38 C.F.R. §§ 3.307, 3.309 (2010).  A veteran is presumed exposed to an herbicide agent if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2010); 38 C.F.R. § 3.307(a)(6)(iii).  "[S]ervice 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). 

If a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders:  chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).

A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for:  hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia, other than chronic lymphocytic leukemia (CLL); abnormal sperm parameters and infertility; Parkinson's Disease and Parkinsonism; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; AL amyloidosis (also referred to as primary amyloidosis); endometriosis; adverse effects on thyroid homeostasis; and, any other condition for which VA has not specifically determined a presumption of service connection is warranted.  See 68 Fed. Reg. 27630 - 27641 (May 20, 2003); see also 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (November 2, 1999).

Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999).  

To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death.  For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related.  For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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.A. § 1310; 38 C.F.R. § 3.312.

The Veteran died on March [redacted], 2005 and his death certificate lists the immediate cause of death as glioblastoma multiforme. At the time of his death he was not service-connected for any condition.  The appellant asserts that the Veteran's death was the result of his in-service Agent Orange exposure.  The Veteran's service in Vietnam, and thus his exposure to Agent Orange, is conceded.

There are three medical opinions regarding the etiology of the Veteran's death.  First, a VA medical opinion was obtained in September 2005 by Dr. W.A., who indicated he reviewed the claims file.  Dr. W.A. noted the Veteran's Agent Orange exposure, diabetes diagnosis, and the cause of death as glioblastoma multiforme.  Dr. W.A. stated that he knew of no scientific evidence relating gliobastoma multiforme to diabetes or Agent Orange, noting that VA did not include this condition as presumptive disorder.  Dr. W.A. concluded that he did not find any relationship between death due to glioblastoma multiforme and Agent Orange exposure or diabetes.  

Second, a July 2006 private medical opinion was provided by Dr. R.D.  Dr. R.D. noted that he reviewed Agent Orange study group data and discussed the Veteran's death with the appellant.  Dr. R.D. opined that it was at least as likely as not that Agent Orange could have caused the condition that was the cause of the Veteran's death.  Dr. R.D. stated that there were interesting similarities between the chemical components and other suspected agents associated with the risk of brain cancer related to petrochemical exposure.  

Last, a February 2011 private medical opinion was submitted by Dr. W.G., a fellow of the American College of Surgeons.  Dr. W.G. reviewed the Veteran's service treatment records, the September 2005 VA medical opinion, VA-issued Agent Orange literature, and other relevant medical studies and literature.  Dr. W.G. noted that the TCDD form of dioxin was present in the Agent Orange used in Vietnam, that TCDD is the most toxic form of dioxin, that TCDD can cause an aberration in gene expression, and that contrary to the September 2005 VA opinion, medical literature suggests that there is a relationship between Agent Orange exposure and glioblastoma multiforme, or brain cancer.  Dr. W.G. stated that evidence of the effects of TCDD on human cells is causing an evolution in the thinking of its role in carcinogenesis which was acknowledged in recent VA reports and in the most recent Institute of Medicine report which moved brain cancer to the category of "inadequate or insufficient evidence to determine association."  Dr. W.G. noted that this move was significant as it recognizes evidence of biologic plausibility, but indicates the studies were not yet robust enough to demonstrate the effect.  Dr. W.G. then related these conclusions to the Veteran, noting that glioblastoma multiforme is a rare rumor, that the Veteran had no other risk factors for brain cancer, to include other toxic exposures, malaria, chronic viral conditions, or a family history of brain cancer.  He related that glioblastoma multiforme is caused by DNA mutations leading to uncontrolled cell division.  These are genetic abnormalities resulting from environmental factors causing damage to DNA in the cells, which TCDD has been shown to do.  Dr. W.G. concluded that it was thus more likely than not that the Veteran's brain cancer was caused by exposure to TCDD.  The opinion cited to a number of publications in support of the opinion.

The Board finds that service connection for the cause of death is warranted, based on the February 2011 medical opinion.  See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (noting that the Board may appropriately favor the opinion of one competent medical authority over another); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992) (finding that the Board may discount the credibility of a physician's statement).  The July 2006 private medical opinion is not highly probative because it provided a speculative opinion that the Agent Orange exposure "could have" caused the brain cancer.  See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence favorable to the claim that merely suggests a possibility that the disorder might have been caused by service is insufficient to establish service connection).  The September 2005 VA medical opinion also is not accorded significant weight because the provided rationale, that medical literature does not suggest a causal relationship between brain cancer and Agent Orange exposure, has been shown to be factually incorrect.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by a VA examiner, without more, does not automatically render the opinion persuasive, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion).

The Board finds, however, the February 2011 private medical opinion by Dr. W.G., highly probative.  It was conducted upon a thorough review of the relevant medical records, provided significant discussion and analysis of medical literature, and addressed the September 2005 VA medical opinion.  Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  Dr. W.G.'s opinion also included an analysis of the Veteran's specific medical history.  See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships).  Accordingly, considering the doctrine of reasonable doubt, the preponderance of the evidence supports service connection for the cause of the Veteran's death.  See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).



ORDER

Service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs