Citation Nr: 1442754 Decision Date: 09/24/14 Archive Date: 09/30/14 DOCKET NO. 11-13 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran served on active military duty from September 1967 to September 1970, including service in the Republic of Vietnam from October 1968 to October 1969. The Veteran died in May 2009, and the Appellant is the surviving spouse. The appeal comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant perfected an appeal of the denial of service connection for the cause of the Veteran's death. The Board notes that, in addition to the paper claims file, the appellant also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA and VBMS reveals that, with the exception of a May 2014 Appellant's Brief, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In January 2013, the Appellant submitted additional medical evidence in support of her claim, for which waiver of review by the Agency of Original Jurisdiction was received in September 2014. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. The issue of entitlement to service connection for glioblastoma multiforme, for the purpose of accrued benefits, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). After the Veteran's death in May 2009, his widow submitted a September 2009 application for dependency and indemnity compensation (DIC), death pension, and accrued benefits. Under the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) which created 38 U.S.C.A. § 5121A (West Supp. 2013) (substitution in case of death of a claimant who dies on or after October 10, 2008), persons who would be eligible for accrued benefits may be substituted for a veteran who dies during the pendency of an appeal. Evidence associated with the claims file, including the Veteran's May 2009 death certificate and August 1975 marriage certificate, reflect that the Appellant is his surviving spouse. The Board's review of the claims file also reveals that the Veteran had a pending claim for service connection for glioblastoma multiforme at the time of his death. However, it is unclear from the record whether the Appellant has expressed an intent to continue to prosecute this claim, and the AOJ has made no determination as to substitution. Regardless, the claim has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include clarification. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in May 2009 of the immediate cause of death of glioblastoma multiforme. 2. The evidence reasonably shows that the Veteran's glioblastoma resulted from his exposure to herbicides, to include Agent Orange, during his service 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. § 1110, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant the Appellant's claim of entitlement to service connection for cause of death is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. The Appellant asserts that the Veteran's death is related to his military service. Specifically, she maintains that the Veteran was exposed to the herbicides such as Agent Orange during his military service in Vietnam and that such exposure caused him to develop glioblastoma multiforme, which caused his death. The Veteran died in May 2009. His certificate of death lists the immediate cause of death as glioblastoma. At the time of the Veteran's death, service connection was established only for epidermophytosis, bilateral with onychomycosis, active, rated as 10 percent disabling, effective February 22, 1974. VA has conceded herbicide exposure based the Veteran's service in the Republic of Vietnam. The death of a Veteran will be considered service-connected when the evidence establishes that a disability, for which service connection had been established at the time of death or for which service connection should have been established, caused or contributed substantially or materially to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The Appellant has submitted medical opinions that the Veteran's glioblastoma multiforme was related to his herbicide exposure in service. An August 2008 letter from Board Certified Advanced Practice Registered Nurse Ciampa and Dr. Drappatz noted the connection between Agent Orange and the development of different kinds of cancers and concluded that it is possible that the Veteran's brain tumor resulted from such exposure while in service. A July 2012 letter from Dr. Joseph, who treated the Veteran for glioblastoma multiforme, indicated his knowledge of the Veteran's service in Vietnam and exposure to herbicides such as Agent Orange. Dr. Joseph stated that although the pathogenesis of glioblastoma multiforme is not entirely fully understood at this time, it is generally thought that the pathogenesis of such malignant processes involves some degree of genetic predisposition and exposure to toxic agents. The physician further explained that the Veteran's exposure to toxic herbicide agents during his service in Vietnam is at least as likely as not a contributing factor in the pathogenesis of his malignant brain tumor. Accordingly, Dr. Joseph concluded that exposure to Agent Orange may have contributed to the development of the Veteran's glioblastoma multiforme. The Appellant has also submitted expert opinions suggesting a general connection between herbicide exposure and the development of glioblastoma multiforme, which the Board finds persuasive. See November 1998 Letter of Dr. S. Ryu (indicating that glioblastoma multiforme could be as likely as not due to exposure to Agent Orange), and November 1998 Letter of K. Gelberg, PhD, MPH (stating that it appears as likely as not that exposure to Agent Orange and other herbicides is associated with the devlepment of brain cancer). There are no other opinions of record concerning the Appellant's claim that the Veteran's glioblastoma multiforme was caused by exposure to Agent Orange in service. The Board finds all of the opinions discussed above, but particularly the July 2012 opinion of Dr. Joseph, to be probative. Resolving all reasonable doubt in the Appellant's favor, and in the absence of any negative opinions, the Board finds that a preponderance of the evidence shows that the Veteran''s cause of death, glioblastoma multiforme, was related to service. Service connection for the cause of death of the Veteran is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is granted ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs