Citation Nr: 1035166 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 08-32 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and F.E. ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to December 1969. The Veteran passed away in April 1990, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). At a July 2010 Board hearing and separately in August 2010, the appellant submitted additional evidence with a waiver of her right to have the RO readjudicate her claim with the additional evidence. See 38 C.F.R. § 20.1304(c) (2009). FINDINGS OF FACT 1. In a June 1994 rating decision, the RO denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. Although provided notice of that decision that same month, the appellant did not perfect an appeal thereof. 2. Evidence associated with the claims file since the June 1994 rating decision is new and material and raises a reasonable possibility of substantiating the claim for entitlement to service connection for the cause of the Veteran's death. 3. An April 1990 certificate of death indicates that the Veteran died in April 1990 at the age of 43. The certificate of death lists the immediate cause of death as malignant glioma of the brain. 2. At the time of the Veteran's death, service connection was not in effect for any disorders. 3. The evidence of record shows that the Veteran's malignant glioma of the brain which caused his death was related to his inservice herbicide exposure. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the RO's June 1994 rating decision, and the appellant's claim for service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 2. A disability incurred in or aggravated by active military service contributed substantially and materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Without deciding whether the notice and development requirements have been satisfied in this case, the Board is not precluded from adjudicating the issues of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for the cause of the Veteran's death and entitlement to service connection for the cause of the Veteran's death. This is so because the Board is taking action favorable to the appellant by reopening and granting the claim for entitlement to service connection for the cause of the Veteran's death. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). I. New and Material Evidence The appellant contends that she has submitted new and material evidence sufficient to reopen her claim of entitlement to service connection for the cause of the Veteran's death. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the June 1994 rating decision is the last final disallowance with regard to the appellant's claim, the Board must review all of the evidence submitted since that action to determine whether the appellant's claim for service connection should be reopened and readjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The appellant's initial claim seeking service connection for the cause of the Veteran's death was denied by the RO in June 1994 because brain cancer was not a condition for which presumptive service connection could be granted based on exposure to Agent Orange and because there was no evidence linking the Veteran's malignant glioma which caused his death to his active duty service or exposure to herbicide agents. Although provided notice of that decision the same month, the appellant did not perfect an appeal thereof. Thus, the June 1994 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2009). In September 2007, the appellant filed the present claim seeking to reopen her claim of entitlement to service connection for the cause of the Veteran's death. In this case, the RO found in a March 2008 rating decision that the appellant submitted new and material evidence sufficient to reopen her claim of entitlement to service connection for the cause of the Veteran's death. However, the RO's determinations are not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Because the June 1994 RO decision is the last final disallowance for the appellant's claim of entitlement to service connection for the cause of the Veteran's death, the Board must review all of the evidence submitted since that action to determine whether the appellant's claim should be reopened and readjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. Comparing the evidence received since the RO's June 1994 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for the cause of the Veteran's death. Specifically, the newly submitted evidence includes three medical opinions dated in September 2007, July 2010, and August 2010 linking the Veteran's malignant glioma of the brain which caused his death to his inservice exposure to herbicide agents. The medical nexus evidence is new evidence, as it was not of record at the time of the June 1994 rating decision. In addition, the evidence is material, as it raises a reasonable possibility of substantiating the appellant's claim for service connection for the cause of the Veteran's death. Accordingly, the Board concludes that the appellant has submitted new and material evidence sufficient to reopen her claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The claim for entitlement to service connection for the cause of the Veteran's death is reopened. II. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including malignant tumors of the brain, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may 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 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1336- 37 (Fed. Cir. 2006). VA death benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312 (2009). 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 C.F.R. § 3.312. 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. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b), (c). The Veteran died in April 1990 at the age of 43. The certificate of death indicates that the immediate cause of death was malignant glioma of the brain. An autopsy was not performed. At the time of the Veteran's death, service connection was not in effect for any disorder. The appellant contends that service connection for the cause of the Veteran's death is warranted. Specifically, in a July 2010 hearing before the Board and in various lay statements, she argued that a study performed by the Army Chemical Corps noted a relationship between some brain cancers and Agent Orange exposure. She also cited to a September 2007 private medical opinion that she submitted in support of a finding that the Veteran's brain cancer was related to his inservice herbicide exposure. The Veteran's service treatment records are negative for any complaints or findings of brain cancer. A January 1969 treatment record reflects that the Veteran was in the Republic of Vietnam. The Veteran's service personnel records reveal that he had service in the Republic of Vietnam from May 1968 to January 1969. He was awarded the National Defense Service Medal, the Vietnam Service Medal with three bronze stars, and the Vietnam Campaign Medal. In support of her claim, the appellant submitted numerous photographs of the Veteran which are signed and dated by the Veteran and note the locations in Vietnam where they were taken. Private medical treatment records from October 1982 reveal that the Veteran was admitted to the hospital with new onset seizures, and a discharge diagnosis of avascular mass in the left frontal lobe of the left brain. In October 1982, the Veteran underwent a computed tomography scan (CT) of the head, which showed a low density lesion in the left frontal lobe, most likely neoplasm with a low grade glioma being the diagnosis of choice, but that metastatic neoplasm would be another consideration. That same month, he underwent a cerebral angiogram which showed an avascular mass effect in the left frontal lobe which was consistent with findings of a low density lesion in the left frontal lobe on a recent CT scan study. The diagnosis was neoplasm with primary neoplasm considered the most likely. In November 1982, the Veteran underwent a left partial frontal lobectomy for removal of a tumor. A November 1982 treatment record notes a diagnosis of left frontal mass lesion, biopsy most compatible with a Grade I astrocytoma, status post craniotomy. A December 1982 electroencephalogram was abnormal and revealed left frontal sharp activity suggestive of irritable focus with no ongoing seizure activity. A December 1982 record reveals that the Veteran was again admitted to the hospital with discharge diagnoses including left frontal glioma, probably grade 1 or grade 2; status post craniotomy and subtotal resection of the glioma in November 1982; and status post whole brain radiation therapy times 10. A January 1983 treatment letter notes that the Veteran completed his course of radiation therapy and was doing well with no evidence of seizures. The diagnoses included status post craniotomy for left frontal glioma, grade I or grade II, with possible minimal residual; and status post radiation therapy for the minimal residual glioma not directly removed surgically. Private treatment records reveal ongoing follow-up treatment through July 1984. In a letter dated in September 2007, W.N., M.D. reported that he was the Veteran's family physician and saw him for his initial seizure in October 1982. Dr. W.N. explained that the Veteran was found to have a frontal brain mass and underwent a craniotomy for removal of the glioma in November 1982. Thereafter, he underwent 35 radiation treatments to his head for control of the brain tumor, but that the course of treatment was complicated by his recurrent seizures and bilateral lower leg thrombosis. Dr. W.N. stated that the Veteran was totally disabled from the time of his brain cancer induced seizure in October 1982 until his death, and that he died from complications of brain cancer in April 1990. Dr. W.N. also noted that the Veteran had active duty service in Vietnam, and opined that it was "very possible that his exposure to Agent Orange during those tours of duty in Vietnam was the etiology for the development of the brain cancer, which was the cause of his demise on 29 April 90." In support of her claim, the appellant submitted various letters from The Agent Orange Veteran Payment Program which indicate that the Veteran was found to meet the criteria established for eligibility for survivor payments. The Agent Orange Veteran Payment Program was a settlement fund created out of the resolution of Agent Orange product liability litigation, a private class action lawsuit brought by Vietnam veterans against major manufacturers of herbicide agents. VA was not a party to the lawsuit. The appellant also submitted websites relating to the link between Agent Orange exposure and certain cancers. In addition, she provided a copy of an August 2005 Agent Orange Brief prepared by the Environmental Agents Service of VA. The brief notes that a study performed by the Army Chemical Corps examined the health effects of chemical exposures during military service in Vietnam among men assigned to Army chemical units, and found that out of 1,000 men who served in Army chemical units in Vietnam between 1965 and 1971, two deaths were observed from brain cancer when 0.4 were expected. In a July 2010 statement, Dr. J.F. opined that the Veteran's "illness at least as likely as not was related to Agent Orange exposure." In an August 2010 statement, W.N., M.D. also stated that the Veteran's "illness at least as likely as not was related to Agent Orange exposure." After a thorough review of the evidence of record, the Board concludes that service connection for the cause of the Veteran's death is warranted. VA regulations provide that 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). 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: 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 that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 - 27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed. Reg. 59232 (November 2, 1999). 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 . . . 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); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records reflect that he served in Vietnam during the pertinent time period. Accordingly, the Veteran is presumed to have been exposed to Agent Orange. Although the Veteran is presumed exposed to Agent Orange, the medical evidence of record does not support presumptive service connection for malignant glioma because brain cancer is not among the diseases or disorders eligible for presumptive service connection based on exposure to herbicide agents. 38 C.F.R. § 3.309. In addition, while certain chronic disorders including malignant tumors of the brain will be presumed service-connected if they are manifest to a compensable degree within the year after active duty service, the first objective evidence of brain cancer in the Veteran's claims file is in 1982, over 12 years after the Veteran's discharge from service. 38 C.F.R. §§ 3.307, 3.309. Accordingly, presumptive service connection for the cause of the Veteran's death is not warranted. 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 claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In that regard, the evidence of record shows that the Veteran's malignant glioma was related to his inservice exposure to herbicide agents; thus, the evidence shows that a service-connected disorder caused or contributed to his death. Specifically, there are three medical opinions of record which address the etiology of the Veteran's malignant glioma. In a September 2007 statement, W.N., M.D. reported that it was "very possible that [the Veteran's] exposure to Agent Orange during [his service in Vietnam] was the etiology for the development of the brain cancer, which was the cause of his demise on 29 April 90." In addition, in a July 2010 statement, Dr. J.F. stated that the Veteran's "illness at least as likely as not was related to Agent Orange exposure." Similarly, in an August 2010 statement, W.N., M.D., the same physician who provided the September 2007 statement, opined that the Veteran's "illness at least as likely as not was related to Agent Orange exposure." Aside from the September 2007 and August 2010 opinions from W.N., M.D. and the July 2010 letter from Dr. J.F., there is no other medical evidence of record which addresses the etiology of the Veteran's malignant glioma which caused his death. Thus, the only medical evidence of record which speaks to the relationship between the Veteran's malignant glioma and his inservice exposure to herbicide agents are the opinions of W.N., M.D. and Dr. J.F., who both concluded that the Veteran's malignant glioma which caused his death was related to his inservice herbicide exposure. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not free to substitute its own judgment for that of such an expert). As the competent medical evidence of record reflects that the Veteran's inservice herbicide exposure caused or substantially contributed to the malignant glioma which was the cause of his death, service connection for the cause of the Veteran's death is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim for entitlement to service connection for the cause of the Veteran's death is reopened. Service connection for the cause of the Veteran's death is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs