Citation Nr: 1437613 Decision Date: 08/22/14 Archive Date: 08/27/14 DOCKET NO. 13-30 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for left temporal glioblastoma multiforme, to include as due to Agent Orange exposure. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2014, the Veteran and his sister testified before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issues on appeal. The Veteran's electronic folder in VBMS does not include any additional records. The electronic folder in Virtual VA includes a copy of the May 2014 hearing transcript. A December 2012 neuropsychological evaluation indicates that the Veteran is unable to sustain gainful employment as a result of his brain tumor. In light of this evidence and the Board's decision below granting service connection for glioblastoma multiforme, the Board finds that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) should be referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to Agent Orange. 2. The evidence is at least in relative equipoise on the question of whether the Veteran's left temporal glioblastoma multiforme is etiologically related to Agent Orange exposure during his active duty service. CONCLUSION OF LAW The criteria for establishing service connection for left temporal glioblastoma multiforme have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that his left temporal glioblastoma multiforme is related to Agent Orange exposure during active duty service. After careful consideration of the medical and lay evidence, and resolving reasonable doubt in his favor, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran has established that he has a current disability, the first element of service connection. Private treatment records from Duke University reflect that he was diagnosed with glioblastoma multiforme in April 2009. The Veteran has also established the incurrence of an in-service injury or event. The record reflects that the Veteran served in the Republic of Vietnam from May 1969 to April 1970; therefore, he is presumed to have been exposed to herbicides, including Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii) (2013). The second element of service connection is thus also met. Initially, the Board notes that glioblastoma multiforme is not among the diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e) (2013). VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam is not appropriate for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 79 Fed. Reg. 20,308 (April 11, 2014). The National Academy of Sciences (NAS) Veterans and Agent Orange: Update 2012, consistent with its findings in Update 2010, found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and cancers of the brain and nervous system. Id. at 20,312. Notwithstanding the foregoing, a Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Thus, the remaining question is whether the Veteran's current glioblastoma multiforme is etiologically related to herbicide exposure during active duty service. There is conflicting evidence regarding the question of nexus in this case. The August 2013 VA examiner provided a general opinion that glioblastoma multiforme was not linked to exposure to Agent Orange or other toxics in Vietnam at the present time; the examiner did not provide a medical opinion specifically addressing the Veteran's case. As noted above, even if a disease is not among the diseases presumed to be associated with herbicide exposure, a Veteran may still establish service connection with proof of direct causation. Therefore, the Board finds that the VA examiner's opinion has little, if any, probative value. On the other hand, the Veteran's private physician, Dr. KP, provided several letters in support of the claim. In February and July 2013, she opined that the Veteran's brain tumor "may have resulted from exposure to Agent Orange." She indicated that exposure to Agent Orange "was a significant factor in causing, contributing to, or aggravating brain tumors in Vietnam veterans." In a June 2014 addendum, she clarified that "given [the Veteran's] specific exposure to Agent Orange, the duration from exposure to tumor diagnosis, and his very rare diagnosis of glioblastoma multiforme, I believe that it is reasonable to conclude that in the specific case of [the Veteran], glioblastoma multiforme and Agent Orange are linked." Dr. KP is a neuro-oncologist at the Preston Robert Tisch Brain Tumor Center at Duke. She indicated that an important component of her research includes evaluations of long-term survivors of glioblastoma multiforme and their outcomes. Based on her level of expertise as a neuro-oncologist and her knowledge of the Veteran's medical diagnosis and treatment, the Board finds her opinion significantly probative. Under these circumstances, Dr. KP's opinion, along with the Veteran's conceded herbicide exposure, permit application of the reasonable doubt doctrine as the evidence for and against the claim is in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for left temporal glioblastoma multiforme are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for left temporal glioblastoma multiforme is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs