Citation Nr: 0631010 Decision Date: 10/02/06 Archive Date: 10/10/06 DOCKET NO. 95-12 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for a malignant glioma for accrued benefits purposes. 3. Entitlement to educational assistance benefits under Chapter 35, Title 38, United States Code (Chapter 35). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who served on active duty from July 1966 to April 1970. The veteran died in May 1994. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in December 2000, which vacated a December 1999 Board decision and remanded the case for additional development. The issues on appeal initially arose from a July 1994 rating decision by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was subsequently remanded to the RO for additional development and the Board addressed these issues in a November 2005 decision. The Board, sua sponte, vacated its November 2005 decision and in a June 8, 2006, order the Court dismissed an appeal from the November 2005 Board decision for lack of jurisdiction. The appellant submitted additional evidence pertinent to her claims in June 2006, but specifically waived initial consideration by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2006). Therefore, the Board finds the case has been adequately developed for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The veteran died in May 1994 as a result of malignant glioma; the approximate interval between onset and death was eight months. 3. At the time of the veteran's death service connection was not in effect for any disability. 4. The persuasive evidence of record demonstrates a disease or injury which caused or contributed to the veteran's death, to include as a result of exposure to herbicides or non- ionizing radiation, was not incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2006). 2. The criteria for service connection for a malignant glioma for accrued benefits purposes have not been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2006). 3. The criteria for educational assistance benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3500, 3501 (West 2002); 38 C.F.R. § 3.807 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In this case, the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in September 2001, August 2002, and July 2004. Adequate opportunities to submit evidence and request assistance have been provided. During the pendency of this appeal, the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Here, the notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. Because of the decisions in this case, any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations, and to move forward with these claims would not cause any prejudice to the appellant. Factual Background The appellant contends that the veteran's exposure to Agent Orange resulted in the development of a brain tumor which caused his death. She has also asserted that his exposure to radiation in service may have lead to the development of the brain tumor which lead to his death. The veteran's service records show he served in Vietnam from April 1969 to April 1970. His service medical records are entirely negative for any evidence pertaining to a brain tumor. On separation examination in March 1970 there were no pertinent complaints and all pertinent findings were normal. Post-service medical records show the veteran manifested various neurological symptoms in 1993 and was diagnosed with a brain tumor in October 1993. He died in May 1994. His death certificate indicates that the cause of death was brain tumor, malignant glioma, with the approximate interval between onset and death being eight months. At the time of his death, the veteran was not service- connected for any disorders. He did, however, have a pending claim for service connection for malignant glioma. In support of her assertion that the veteran's death was due to herbicide exposure in service the appellant submitted an August 1994 opinion from the veteran's neurosurgeon, A. Allan Dixon, M.D. Dr. Dixon stated "[t]here may well be a connection" between the veteran's exposure to Agent Orange and the malignant glioma; however, noting that as a neurosurgeon he was not an expert in the causes of tumors and was not qualified to comment on a possible relationship. He further noted that the causes of a brain tumor were varied and were not known for certain. He provided that a malignant tumor in a young man (the veteran was 46 years old at the time of death) could have been caused by a preceding exposure to any toxin. A search of official government sources was conducted to determine if the veteran was exposed to radiation during active duty service. In correspondence dated in October 1997 the Department of Energy reported it had no record of the veteran having been exposed to ionizing radiation. In an August 1998 letter, the Department of Air Force, Headquarters Air Force Safety Center, stated that the veteran had performed duties associated with radar, bombing systems, electronic equipment, and weapons control systems. It was noted his Air Force occupational specialty and assigned duties did not involve nuclear warhead maintenance operations. There was no evidence that he was exposed to other significant sources of ionizing radiation from his duties. A query of the Air Force Master Exposure Registry for ionizing radiation dosimetry records revealed no records pertaining to the veteran. It was further noted that the duties the veteran performed may have involved exposure to non-ionizing (radio frequency) radiation from radar systems and other devices, but that the primary biological effect from radio frequency radiation (RFR) was a thermal heating effect and scientific studies had been unable to establish hazardous effects of RFR from exposure within established federal standards. It was concluded that it was highly unlikely that any RFR exposure he may have received during his career in the Air Force was related to his disease. A May 2002 VA medical opinion noted that the physician rendering the opinion was not an expert, but that the most recent current conditions considered by VA as presumptive of Agent Orange exposure did not list any brain lesion like glioma as related to Agent Orange. The physician found it was unlikely that the veteran's glioma was related to Agent Orange exposure. The Board subsequently requested a medical opinion from the Armed Forces Institute of Pathology (AFIP) regarding the relationship between the veteran's cause of death and his active duty service. The appellant and her representative were provided adequate notice and sufficient time to provide additional argument or evidence. In correspondence dated in July 2005 two AFIP physicians (F.G. Mullick, M.D., Chair, Department of Environmental & Infectious Disease Sciences; L.A. Murakata, M.D., Staff Pathologist, Department of Environmental & Infectious Disease Sciences) found the biopsy tissue of the veteran's tumor showed anaplastic oligodendroglioma (Grade III, WHO 2000). The physicians noted that Table 1.1 of the Veterans and Agent Orange Update 2002, Institute of Medicine of the National Academies summarized the medical literature to categorization of health outcomes and exposure to herbicides and that brain tumors fell under the "Limited/Suggestive Evidence of No Association" category. With regard to the question of whether it was at least as likely as not that exposure to herbicides in Vietnam was the principal or contributory cause of the veteran's death, the physicians stated that it was unlikely. It was noted that a search of the literature for recent published studies covering exposure to herbicides such as those used in Vietnam and the development of brain cancer did not reveal data different than that published by Veterans and Agent Orange Update 2002. With regard to the question of whether it was at least as likely as not that exposure to non-ionizing radiation from radar systems and other devices during service lead to the veteran's cause of death, the physicians indicated that it was unknown but unlikely. The physicians further stated that, although the Veterans and Agent Orange Update 2002 stated that exposure to ionizing radiation was an established risk factor for brain cancer, the American Cancer Society had noted that most brain cancers were not associated with any known risk factors. With regard to the question of whether it was at least as likely as not that the veteran's cause of death had its onset in service or within one year after separation from service, the physicians indicated that it was unknown. It was noted that files containing 7,702 Agent Orange Registry cases (ending June 2005) had been reviewed which included a total of 12 patients diagnosed with primary glial brain tumors. There were no cases with the diagnosis of anaplastic oligodendroglioma. The physicians noted that in their experience oligodendroglial tumors had not been causally associated with any environmental agents. Grade III oligodendrogliomas may arise de novo or from a Grade II oligodendroglioma and the mean survival time for Grade II oligodendrogliomas was approximately five years post diagnosis, for Grade III tumors it was usually one year or less. In summary, the AFIP physicians noted they were not aware of scientific literature that currently existed that supported an association between exposure to herbicides and/or non-ionizing radiation (radio frequency) and the development of anaplastic oligodendroglioma of the brain. In response to the AFIP medical opinion, the appellant submitted a medical opinion from Craig N. Bash, M.D., a neuroradiologist and associate professor of radiology at the Uniformed Services University of the Health Sciences. In correspondence dated in August 2005, Dr. Bash noted that upon request of the appellant's attorney he reviewed the veteran's claims folder and medical records for the purpose of making a medical opinion concerning the veteran's demise. It was noted he reviewed the veteran's claims folder, post-service medical records, lay statements, other physician statements, and medical literature. With regard to his qualifications, Dr. Bash indicated that he was a board certified specialist and had additional certifications in neuroradiology and had performed and/or interpreted thousands of CT, MRI, and PET scans, as well as angiograms, on patients with brain tumors, and had correlated his findings with the clinical record. Dr. Bash opined that it was more likely than not that the veteran's brain tumor was induced by his exposure to Agent Orange. The reasons provided for this conclusion included that the time lag between the veteran's exposure and the tumor development was "not inconsistent with the magnitude of time lags associated with an evolution of WHO grade for this time [sic.] of tumor over time" and that the literature (Agent Orange Updates) supported an association between Agent Orange exposure and the development of brain tumors at the more likely than not level. It was noted that the 2002 Agent Orange Update by the Institute of Medicine (IOM) published a series list of studies, all of which listed their Relative Risks (RRs). Dr. Bash stated that he had conducted a meta-analysis of these studies and found that for tumors, 39 studies showed a relative risk greater than one or equal to one and only 21 studies showed a relative risk less than one. The largest study of 477 had a relative risk of 1.2. These RRs were asserted to have supported his contention that the risk association between Agent Orange and the development of brain tumors was greater than 50 percent. He noted that IOM usually stated that this type of RRs was in the insufficient evidence category, but that he disagreed with the IOM as they applied the 95 percent confidence level to their "insufficient" evidence statement when the correct standard according to VA legislation was a 50 percent or greater likelihood concept. Other factors which Dr. Bash indicated had lead him to conclude that there was an association between service and the veteran's cause of death were that the veteran did not appear to have any other risk factor or confounding factor to medically explain his development of his Grade III tumor at a relatively young age and that this opinion was consistent with Dr. Dixon's opinion. In support of the claim the appellant's attorney submitted correspondence dated in June 2006 from H. Montemarano, M.D., identified as a board certified radiologist with additional subspecialty training and certification (apparently in the field of pediatric radiology). Dr. Montemarano noted she had been asked to comment on the veteran's brain tumor, a World Health Organization anaplastic oligodendroglioma, and stated that "[t]he precise etiology of these tumors is not well established but we do know in general that toxins often cause many types of tumors through genetic transformations." It was noted that according to the IOM there are several biologically plausible pathways through which Agent Orange induces cancer and that "the analysis by Dr. Bash reveals that the preponderance of the medical data provided in [the] 2002 Agent Orange [U]pdate favors a positive causative association between Agent Orange and brain tumors." Dr. Montemarano reported that "[t]he more recent 2004 Agent Orange [U]pdate also shows a similarly strong association consistent with the analysis of Dr. Bash." It was further noted that the opinion of Dr. Dixon was consistent with the medical data and that "[t]here is no data that states that Agent Orange is protective against the development of tumors or that this compound is biologically benign." Dr. Montemarano also stated that these type of tumors were noted for very slow growth and that the interval between the veteran's exposure to Agent Orange and his demise was consistent which what would be expected. She further noted that the AFIP reports had been reviewed and that they appeared to be limited only to in-house data on 12 cases and their opinions were "consistent with their narrow perspective." It was implied that the AFIP physicians had not considered pertinent literature and that they may not have had access to the full record in this case. Additional comments were also provided concerning the reputation and medical expertise of Dr. Bash. In conclusion, Dr. Montemarano found the veteran's medical record did not document any other risk factors for the development of brain tumors or oligodendrogliomas and that the literature and opinions of other physicians in this case revealed a positive association between Agent Orange exposure and the development of brain tumors. It was, therefore, her opinion that it was likely that the etiology of the veteran's brain tumor was his exposure to toxins (Agent Orange) in Vietnam. Cause of Death Claim In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2006). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection can be granted for certain diseases, including malignant tumors, if manifest to a degree of 10 percent or more within one year of separation from active service. Where a veteran served 90 days or more of continuous, active military service during a period of war and certain chronic diseases (including malignant tumors) become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). Certain disorders associated with herbicide agent exposure in service may be presumed service connected. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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 C.F.R. § 3.307. VA, under the authority of the Agent Orange Act of 1991, has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for disorders which are not enumerated by regulation. See 61 Fed. Reg. 41442 (1996). In a May 2003 public notice VA reported that National Academy of Sciences (NAS) studies had concluded there was no new evidence to support changing the "limited or suggestive evidence of no association" categorization and found that the credible evidence against an association between herbicide exposure and brain tumors outweighed the credible evidence for such an association. See 68 Fed. Reg. 27630, 27639 (May 20, 2003). It was noted that ionizing radiation was an established risk factor for brain cancer and that several other potential factors have been examined, but that most brain cancers were not associated with any known risk factors and occurred relatively infrequently. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. In this case, the appellant contends that the veteran's death due to a brain tumor was due to exposure to Agent Orange and/or radiation during service. Records show the veteran was not service connected for any disability during his lifetime and there is nothing in his records to indicate that his brain tumor was a pre-existing condition or that any disorder in service could have conceivably aggravated this disease or otherwise contributed to the onset of death. Therefore, no issue of service connection for the cause of the veteran's death on the basis of contribution to death or aggravation of the brain tumor causative of death by a service-connected disability is shown by the evidence of record. Further, it is noted that the brain tumor was first demonstrated many years after service separation. The appellant is not entitled to service connection for the cause of the veteran's death on a presumptive basis under 38 C.F.R. § 3.309. The evidence clearly shows the veteran died as a result of a brain tumor which is not an enumerated disease for presumptive service connection associated with herbicide exposure. There is no probative evidence demonstrating a brain tumor was manifest within the veteran's first post-service year or that the disorder developed as a result of ionizing radiation exposure during service. As to the issue of entitlement to service connection on a direct basis as a result of herbicide exposure in service, the Board notes that a VA notice that a presumption of service connection was not warranted for brain tumors does not preclude direct service connection if the evidence establishes that the disease was incurred during service. See Combee, 34 F.3d 1039. After review of the evidence of record, however, the Board finds that entitlement to service connection for the veteran's cause of death is not warranted. The July 2005 AFIP opinion is considered to be persuasive in this case. This opinion is shown to have been based upon a thorough review of the pertinent evidence, is consistent with the published and peer reviewed medical and scientific literature, and is consistent with VA's own published findings as to any possible positive association Agent Orange and brain tumors. The competent evidence of record also includes opinions in support of the appellant's claim of an association between the veteran's brain tumor and his presumed exposure to Agent Orange during service in Vietnam. The Board finds, however, that the private medical opinions of Drs. Dixon, Bash, and Montemarano warrant a lesser degree of probative weight than the AFIP opinion. Dr. Bash stated that he conducted "meta analysis" on the information of record. He did not provide any copies of his work product used in arriving at his conclusions. Ill conducted meta-analyses may be biased owing to exclusion of relevant studies or inclusion of inadequate studies. The Board has no information on how his analysis was performed, or to the extent in which he included or excluded data. The Board finds that these opinions either require resort to speculation, albeit based upon some degree of medical knowledge, in that there is admittedly no demonstrated direct and immediate causal relationship between herbicide exposure and the development of this brain tumor, or require that a greater degree of evidentiary weight be applied to the statistical conclusions of Dr. Bash over the published findings of the IOM, NAS, and VA. As to Dr. Bash's opinion that the literature supported an association between herbicide exposure and brain tumors on a more likely than not basis of evidentiary proof, the Board has considered his argument but finds his opinion as to statistical significance warrants a lesser degree of probative weight than the published and peer reviewed medical and scientific findings of record. One of the bases for his opinion is that the 2002 Agent Orange Update by IOM used a different standard (95 percent confidence level) for determining a connection between various diseases and herbicide exposure than the standard VA uses for determining whether service connection for a disability is warranted. The Board notes that VA law does not require that scientific data be evaluated under VA legal standards, rather it evaluates all the data, to include the scientific and medical findings, and applies the legal standard and probative value of each item of evidence in determining if a specific benefit is warranted. The Board also notes that in her June 2006 correspondence Dr. Montemarano referred to the 2004 Agent Orange Update as showing "a similarly strong association consistent with the analysis of Dr. Bash." Although no copies of that document were provided and no specific reference was identified, this publication has been reviewed by the Board solely for the purpose of assessing the probative value of Dr. Montemarano's statements as to deficiencies in the AFIP report. It is significant to note that the 2004 Agent Orange Update report shows the additional information available to the committees responsible for the Update 2002 did not change the conclusion that there was limited or suggestive evidence of no association between Agent Orange exposure and brain cancer. See Veterans and Agent Orange Update 2004, The National Academies Press, pp. 296-302 (2005). Therefore, the Board finds additional development is not required, to include for reconciliation of the AFIP of record with any studies published since July 2005. The claims of Dr. Montemarano as to deficiencies in the AFIP report are not substantiated by the evidence of record. Based upon review of all the evidence of record, the Board finds the persuasive medical opinion in this case shows the veteran died as a result of a brain tumor that was not incurred as a result of military service. The opinions of the July 2005 AFIP physicians are considered to be persuasive and of greater probative weight than the opinions of Drs. Dixon, Bash, and Montemarano. Therefore, entitlement to service connection for the cause of the veteran's death must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against this claim. Accrued Benefits Claim The law and regulations governing claims for accrued benefits, as applicable to this case, state that upon the death of a veteran, his or her lawful surviving spouse may be paid periodic monetary benefits to which he or she was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2006). As the Board has determined that service connection for the veteran's cause of death is not warranted, for similar reasons entitlement to accrued benefits on the basis of the veteran's pending claim for service connection for malignant glioma (the cause of his death) must also be denied. The preponderance of the evidence is against the claim. Chapter 35 Benefits Claim Educational assistance is available to a child or surviving spouse of a veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C.A. §§ 3500, 3501 (West 2002); 38 C.F.R. § 3.807 (2006). Neither of these criteria are met in this case. The preponderance of the evidence is against the claim. ORDER Service connection for the cause of the veteran's death is denied Service connection for a malignant glioma for accrued benefits purposes is denied. Entitlement to Chapter 35 educational assistance benefits is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs