Citation Nr: 0923159 Decision Date: 06/19/09 Archive Date: 06/23/09 DOCKET NO. 05-36 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The Veteran had active service November 1965 to May 1969, and from June 1970 to June 1986, including service in Vietnam. He died in October 2004. The appellant is his surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Jackson, Mississippi, regional office (RO). FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam War; therefore, exposure to Agent Orange is presumed. 2. The Veteran died in October 2004, at the age of 58 years. 3. According to the Certificate of Death, his immediate cause of death was sepsis due to urinary tract infection due to or a consequence of anaplastic astrocytoma (end stage). Other conditions which were noted as a significant conditions contributing to death were sleep apnea, morbid obesity, hypertension, emphysema, hyperlipidemia, pulmonary embolism. 4. At the time of the Veteran's death, service connection had been established for tinnitus, degenerative joint disease of the lumbar spine, hearing loss, and a rash. 5. The medical evidence of record reflects that the Veteran was diagnosed in 2003 with a brain tumor, ultimately characterized as anaplastic astrocytoma. 6. The anaplastic astrocytoma is not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 7. Service medical records do not show the presence of a malignancy during service, nor was a malignancy demonstrated within one year following separation from service. 8. The disorder that resulted in the Veteran's death, anaplastic astrocytoma, had its onset long after service and is unrelated to the Veteran's military service or any incident thereof, including exposure to Agent Orange and/or asbestos. CONCLUSIONS OF LAW 1. The anaplastic astrocytoma cancer was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein, including as due to exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 1310, 5103(a), 5103A (West 2002 & Supp. 2007); 38 C.F.R. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2008). 2. A disability incurred in or aggravated by active service neither caused nor contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A (West 2002 & Supp. 2007); 38 C.F.R. 38 C.F.R. § 3.312 (2007). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died of anaplastic astrocytoma in October 2004 at the age of 58. The appellant contends, in essence, that the Veteran's cancer was caused by exposure to Agent Orange or asbestos in service. After a review of the claims file, the Board finds that the claim must be denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for certain cancers, such as Hodgkin's disease, and malignant tumors may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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). To be a contributory cause of death, the disability 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). When all the evidence is assembled, VA is 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition to the regulations governing entitlement to service connection outlined above, for purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection, a Veteran who, during active military, naval, or air 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 during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in 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.A. § 1116 (as amended). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). Chloracne, or other acneform disease, may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the Veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii). If the rebuttable presumptions of 38 C.F.R. § 3.307(d) are also not satisfied, then the Veteran's claim must fail. The Secretary of VA 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 any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 (1994). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Veterans Claims Court has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to grant service connection. See e.g., Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board notes that there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations for these types of cases. However, in 1988 the VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure, under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the United States Court of Veteran's Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the claim-development procedures). With these claims, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre- service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2005). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. However, in the case of Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Service medical records fail to show complaints of, treatment for, or diagnosis of cancer or symptoms reasonably associated therewith. The Board has noted that there is a Navy Asbestos Medical Surveillance Program form included in the service medical records which indicates exposure to asbestos during service, however, there is no indication that this resulted in disability. The report of a medical history given by the Veteran in February 1986 reflects that he denied having headaches or dizzy spells. Medical examination conducted at that time resulted in normal clinical evaluation of all relevant bodily systems. The report of a VA disability evaluation examination conducted in September 1986 is also negative for any relevant abnormalities. A private treatment record dated in January 2003 reflects that the Veteran reported symptoms of numbness in his hands and headaches. He was subsequently diagnosed in February 2003 with an astrocytoma. He died in October 2004 at the age of 58. According to the Certificate of Death, his immediate cause of death was sepsis due to urinary tract infection due to or a consequence of anaplastic astrocytoma (end stage). Other conditions which were noted as a significant conditions contributing to death were sleep apnea, morbid obesity, hypertension, emphysema, hyperlipidemia, pulmonary embolism. At the time of his death, the Veteran was service-connected for tinnitus, degenerative joint disease of the lumbar spine, hearing loss, and a rash. It has not been alleged, nor is there any evidence that any of those disabilities played a role in the death. In reviewing the foregoing evidence, the Board notes that the service medical records are negative for complaints of, treatment for, or diagnosis of cancer or symptoms reasonably associated therewith. The Veteran was first diagnosed with cancer in 2003, ultimately diagnosed as an anaplastic astrocytoma. Therefore, the evidence does not support a finding of cancer during military service. Even presuming that the Veteran was exposed to Agent Orange during military service, the types of cancers associated with Agent Orange include Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. The characterization of the Veteran's cancer identified as an astrocytoma in the medical evidence from during his lifetime are not included among those enumerated at 38 C.F.R. § 3.309 (e) for which service connection is presumed. The Board has considered the question of whether the condition which caused the Veteran's cancer was directly incurred in or aggravated by military service (other than as secondary to Agent Orange exposure). A review of the relevant clinical evidence of record, including the service medical records, does not contain any evidence which would lead to a conclusion that service connection for cancer on a direct basis is warranted. In this regard, the service medical records do not contain findings indicative of cancer of any kind. Further, there is no evidence of cancer for many years after service separation. The absence of a diagnosis related to the cause of the Veteran's death (cancer) for many years after military discharge weighs against a finding of continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in deciding a service connection claim). Moreover, no physician has ever established a direct medical nexus between military service and cancer. Therefore, the claim for service connection for the cause of death must be denied on a direct basis. There is only one competent medical opinion regarding the cause of the Veteran's death, and it weighs against the claim. A letter dated in January 2009 from a staff neurologist at a VA Medical Center contains the following comments: I have carefully reviewed the medical records of this patient, and have reviewed the relevant epidemiologic data regarding gliomas in general and environmental exposures among Vietnam Veterans in particular. The patient developed an anaplastic astrocytoma, considered a grade 3 (malignant) glioma in the World Health Organization classification. Anaplastic astrocytoma occurs more often in males than females, and has a peak incidence during the 5th and 6th decade of life. Numerous epidemiologic studies over the past 20 years have failed to demonstrate any definite environmental cause for anaplastic astrocytoma or any other subtype of glioma, except for an association with exposure to ionizing radiation. I am unaware of any study indicating a link between asbestos exposure and increased incidence of glioma. The Institute of Medicine's 2006 update "Veterans and Agent Orange" reviewed several published studies showing no increased risk of brain tumors among persons with non-military (mainly agricultural) exposure to herbicides or pesticides. The IOM also reviewed two studies suggesting a higher than expected incidence of brain tumors in Vietnam Veterans, i.e., among Air Force Ranch Hands (Akhtar et al 2004) and in the Army Chemical Corps (Dalager et al 1997). Given the preponderance of negative studies, the IOM concluded that at present there is "inadequate or insufficient" evidence to determine an association between brain tumors and Agent Orange or other herbicide exposure among Vietnam Veterans. In summary, it is my opinion that the patient's anaplastic astrocytoma was not caused by his exposure to asbestos, nor to any exposure to Agent Orange or other herbicide(s) during his military service. In a separate memorandum another VA physician who is the acting chief of staff reported that he concurred with the findings in the VA medical opinion. The Board finds that the preponderance of the evidence clearly weighs against the claim. As explained above, the pivotal evidence in this case consists of medical opinion, and the opinion obtained in January 2009 which weighs against the claim clearly outweighs the other lay opinions which have been presented. Therefore, there is no reasonable doubt to be resolved in favor of the appellant's claim. The anaplastic astrocytoma cancer was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein, including as due to exposure to Agent Orange. A disability incurred in or aggravated by active service neither caused nor contributed substantially or materially to the cause of the Veteran's death. Finally, the Board notes that on November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law. Regulations implementing the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. To that end, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. The appellant was notified of the VCAA as it applies to her present appeal by correspondence dated in November 2004. The letter advised her that she must provide evidence that showed a reasonable probability that the condition that contributed to the Veteran's death was caused by injury of disease that began during service. She was further advised in a separate enclosure that she should submit evidence that the Veteran died while on active duty or that he died from a service- connected injury or disease. The VCAA notice letter provided to the appellant generally informed her of the evidence not of record that was necessary to substantiate her claim and identified which parties were expected to provide such evidence. She was notified of the need to give VA any evidence pertaining to her claim. In addition, by virtue of the rating decision on appeal, the statement of the case (SOC), and the SSOC, she was provided with specific information as to why this particular claim was being denied, and of the evidence that was lacking. In essence, what the VCAA seeks to achieve is to give the appellant notice of the elements outlined above. Once that has been done - regardless of whether it has been done by way of a single notice letter, or via more than one communication - the essential purposes of the VCAA have been satisfied. Furthermore, her contentions reflect an awareness of the particular requirements to substantiate a claim for dependency and indemnity compensation (the benefit awarded when service connection for the cause of death is established) based on a nonservice-connected condition, as required by the holding in Hupp v. Nicholson, 21 Vet. App. 342 (2007). Here, the Board finds that, because each of the content requirements of a VCAA notice has been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, e.g., 38 C.F.R. § 20.1102. The appellant has not claimed that VA has failed to comply with the notice requirements of the VCAA and the Board finds that the provisions of the VCAA have been fully satisfied. Specifically, the revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. See 38 C.F.R. § 3.159. In this case, the Veteran's service medical records and all identified and authorized post-service medical records relevant to the issue on appeal have been requested or obtained, including private treatment records. Next, in claims for disability compensation, the VCAA duty to assist requires VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. The Board notes that opinions were obtained from a medical expert regarding the etiology of the Veteran's cancer. The available medical evidence is sufficient for an adequate determination. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs