Citation Nr: 1204326	
Decision Date: 02/06/12    Archive Date: 02/16/12

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. Eligibility for educational assistance benefits under Chapter 35, Title 38, United States Code (Chapter 35).


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law



ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from July 1966 to April 1970. He died in 1994. The appellant is the Veteran's surviving spouse.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 1994 by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, of which the appellant was notified by an RO letter dated in August 1994.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In December 2000, the United States Court of Appeals for Veterans Claims (Court) issued an Order that vacated a December 1999 Board decision in this matter and remanded the appeal for additional development and adjudication  

The case was subsequently remanded to the RO for additional development and the Board addressed these issues in a November 2005 decision. The Board, on its own motion, vacated its November 2005 decision and in a June 2006 Order the Court dismissed an appeal from the November 2005 Board decision for lack of jurisdiction. The Board subsequently issued a decision in October 2006.



Subsequently, this appeal was addressed by an April 2009 decision of the Court, by which the Court vacated the Board's October 2006 decision in this matter and remanded the matter for further adjudication consistent with the Court's opinion. The below action is accomplished in view of the Court's opinion.

In November 2009, the appellant through her counsel submitted additional evidence along with a waiver of initial consideration by the RO. Thus, the Board will consider the additional evidence in conjunction with this appeal. See 38 C.F.R. § 20.1304(c).

In correspondence dated in September 2010, the appellant through counsel requested a videoconference hearing if the Board was to take any other action than grant the appellant's claim for service connection for the cause of the Veteran's death. Because the Board grants the claim in this decision, a videoconference hearing is not required and results in no prejudice to the appellant's claim. 
 

FINDINGS OF FACT

1. The Veteran is presumed to have been exposed to herbicides during active service in Vietnam.

2. The Veteran died of a brain tumor diagnosed as an oligodendroglioma.

3. The competent medical evidence is in equipoise as to whether the Veteran's in-service exposure to Agent Orange caused his fatal oligodendroglioma.

4. At the time of the Veteran's death a claim for service connection for his malignant glioma was pending.

5. At the time of the Veteran's death there was no competent medical evidence relating the Veteran's exposure to Agent Orange during service to his oligodendroglioma.

CONCLUSIONS OF LAW

1. The criteria for service connection for the cause of Veteran's death are approximated. 38 U.S.C.A. §§ 1110, 1116, 1310, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2011). 

2. The criteria for service connection for a malignant glioma for accrued benefits purposes are not met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2011).

3. The criteria for educational assistance benefits under Chapter 35, Title 38, United States Code, are met. 38 U.S.C.A. §§ 3500, 3501 (West 2002); 38 C.F.R. § 3.807 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board finds that the evidence is in equipoise as to whether the Veteran's fatal malignant glioma was caused by his in-service exposure to Agent Orange. Accordingly, the Board grants the appellant's claims for service connection for the cause of the Veteran's death and for eligibility for educational assistance pursuant to Chapter 35, Title 38, United States Code. In addition, the Board finds that because there was no competent medical evidence before VA at or before the Veterans' death relating the Veteran's malignant glioma to any incident of military service, the appellant's claim for accrued benefits must be denied.

The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 



First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). 

As discussed in detail below, sufficient evidence is of record to grant the appellant's claims for service connection for the cause of the Veteran's death and for eligibility for educational assistance benefits under Chapter 35. Therefore, no further notice or development is needed with respect to those claims. 

A July 2004 letter satisfied VA's duty to notify under the VCAA for the appellant's claim for accrued benefits. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). This letter advised the appellant what information and evidence was needed to substantiate her accrued benefits claims. This letter also informed the appellant of her and VA's roles in obtaining evidence in support her claim. Although the letter did not advise the appellant, in compliance with the later-issued case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as to how VA establishes disability ratings and effective dates for any awards of benefits, no disability rating is being set and no effective date is being assigned so the appellant is not prejudiced by lack of notice as to these issues.

The July 2004 VCAA notice was not mailed to the appellant prior to the initial adjudication of her claim. However, her claim has since been readjudicated in supplemental statements of the case, so that any defect as to timing of notice is harmless, non-prejudicial error. Dingess/Hartman, 19 Vet. App. at 473. 

There is no indication of any further available evidence or information to be associated with the record in regard to the claim for accrued benefits. In a claim for accrued benefits, the Board generally may not consider medical evidence received after the date of the Veteran's death, although there are exceptions for outstanding service treatment records and VA records, as they are considered to be in the constructive possession of VA at the time of death. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a),(d)(4). As the record does not reflect the existence of any outstanding relevant VA records, the record, as it stands, is sufficiently developed to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the appellant.

The claim for accrued benefits has been properly developed and no further development is required to comply with the provisions of the VCAA or the implementing regulations. There is no additional guidance VA could provide to the appellant regarding what further evidence she should submit to substantiate her claim. See Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Additionally, the appellant is represented by a private attorney who is knowledgeable as to the notice and development requirements of the VCAA; consistent with the Board's findings, he has opined that the record is now fully developed and has requested that the appellant's claims be adjudicated on the current record. See November 2011 letter from appellant's attorney. 


Merits of the Claims

The appellant contends that the Veteran's exposure to Agent Orange resulted in the development of the brain tumor that caused his death. She has also asserted that his exposure to radiation in service may have lead to the development of the brain tumor that lead to his death.

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). 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. 

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. 

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.

The Veteran had active service in Vietnam during the Vietnam era and is presumed to have been exposed to herbicides. However, there is no question or assertion that the Veteran's terminal disorder was one which may be presumptively linked to his presumed herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309. See letter from appellant's attorney dated in November 2011 noting that presumption service connection not applicable; 38 C.F.R. §§ 3.307, 3.309. The evidence shows the Veteran died as a result of a malignant glioma brain tumor, which is not an enumerated disease for presumptive service connection associated with herbicide exposure. 

An August 2010 letter from the Armed Forces Institute of Pathology (AFIP) states that based on extensive research, medical expertise as to pathology, and past study of the Veteran's brain cancer tissue that gliomas are not soft tissue tumors or soft tissue sarcomas - to be clear, this is contrary to a statement from Richard F. Fraser, M.D. in a November 2009 letter submitted in support of the claim.
 
The AFIP experts in pathology, citing to relevant medical treatises and studies, noted that while tumors of the peripheral and autonomic nervous system are considered soft tissue tumors, the embryological origin of central nervous system tumors (neuroectoderm) are different from that of soft tissue sarcomas (mesoderm). As the opinion of the AFIP is far more expert, well-researched,  and well-reasoned on this point than the opinion of Dr. Fraser as to the identity of a soft tissue sarcoma, the opinion of the AFIP that the Veteran's glioma was not a soft tissue sarcoma is of greater expertise and competence on this matter of pathology and as to the classification of the tumor is of a far higher probative value and probative weight. Also, 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. 

The brain tumor was first demonstrated many years after service separation; there is no evidence or contention that it existed to a compensable degree within one year after the Veteran's discharge from service. See 38 C.F.R. §§ 3.307, 3.309(a).

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). Thus, the critical question at issue in this case is whether there is sufficient competent evidence of a medical nexus between the Veteran's in-service exposure to herbicides and the brain tumor that caused the Veteran's death.

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 Board has 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.

The Veteran's service department records show he served in Vietnam from April 1969 to April 1970. His service treatment records are entirely silent or 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 late 1993. He died in mid-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 - consistent with both the onset of neurological symptoms and death. At the time of his death, the Veteran was not in receipt of service connection for any disorder. A claim was pending for service connection of 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, with the proviso that as a neurosurgeon he was not an expert in the causes of tumors. He further noted that the causes of a brain tumor were varied and were not certain. He elaborated 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 found 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.

In a May 2002 VA medical opinion, the reviewing physician noted that he 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 that it was "most unlikely as not" 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. 

The report noted that files containing 7,702 Agent Orange Registry cases (ending June 2005) had been reviewed, and 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. They noted that 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 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 providing a medical opinion concerning the Veteran's death. 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 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's opinion is probative as to the causality of the Veteran's cause of death. 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 that 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 the development of his Grade III tumor at a relatively young age.

Two other points are relevant as to Dr. Bash's opinion. First, while Dr. Bash stated that his opinion was "consistent with Dr. Dixon's opinion," he did not elaborate as to this consistency. As noted, beyond Dr. Dixon's August 1994 observation that "there may well" have been a connection between the Veteran's death and his exposure to herbicides, he observed that:  (1) as a neurosurgeon he was not qualified to comment on a nexus between the in-service event and the cause of death; (2) neurosurgeons dealt with results of tumors, but were not necessarily experts in their causes, and (3) he was "wise enough to realize that the causes must be varied and are not known for certain." However, as was noted by the Court in April 2009, Dr. Dixon's observation that there "may well be" a connection between the Veteran's presumed exposure to herbicides and his death was "speculative." 

Further, to the extent that Dr. Bash has in effect disputed the findings of the IOM as it has applied the law to its report, his opinion is not persuasive. Specifically, Dr. Bash's observation that in using the "the 95% confidence level to their insufficient evidence statement when the correct standard according to VA legislation is the 50% or greater likelihood concept because the veteran patient is supposed to be afforded the benefit of [the] doubt" is not supportable in law. 

Physicians may certainly express opinions to the degree of certainty they deem appropriate. However, the law provides that the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998);see also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). 

For all of the medical reasons stated above, to include his "meta-analysis" of the data cited, Dr. Bash's opinion is probative from a medical perspective. However, his legal argument as to the inadequacy of the IOM's findings is without merit, as the benefit of the doubt doctrine is "a legal construct to be applied by an adjudicatory body when the evidence is approximately balanced, not by a medical professional when rendering an opinion." D'Aries v. Peake, 22 Vet. App. 97 (2008).

In support of the claim the appellant through counsel 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  pediatric radiology).  Dr. Montemarano essentially endorsed the opinion of Dr. Bash, in his assessment that the IOM's findings were medically unreliable and she disputed the opinion of the AFIP.

Apart from her observations that Agent Orange was not "protective against the development of tumors" and that the compound was not "biologically benign" her observations were that the precise etiology of tumors such as anaplastic oligodendroglioma "were not well established;" toxins often cause many types of tumors through genetic transformations; and according to the IOM, there were several "biologically plausible pathways" through which Agent Orange induces cancer. She noted that tumors such as experienced by the Veteran were noted for very slow growth.


As to this specific matter, she opined that the time period between the Veteran's presumed herbicide exposure and his death was consistent with what she would expect for the amount of time required for both oligodendroglioma tumor induction and its indolent growth.

She also noted that "the analysis by Dr. Bash reveals that the preponderance of the medical data provided in [the] 2002 Agent Orange update favors a positive causative association between Agent Orange and brain tumors."  Dr. Montemarano reported that "[t]he more recent 2004 Agent Orange update also shows a similarly strong association consistent with the analysis of Dr. Bash."  

Dr. Montemarano dismissed the AFIP report and opined that it appeared to be limited only to in-house data on 12 cases - "consistent with their narrow perspective."  

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.

In November 2009 the Board received through the appellant's attorney, a written medical opinion from Richard Fraser, M.D., specializing in occupational medicine, Diplomat American Board of Internal Medicine, Diplomat of Geriatric Medicine, and Certified Independent Medical Examiner & Board Eligible Occupational Medicine. Significantly as it evidences a basis for his opinion, Dr. Fraser referenced 42 medical articles or treatises related to oligodendrogliomas in his report. 

Although he is not shown to be an expert in the field of brain tumors or related fields of medicine, Dr. Fraser discussed the Veterans and Agent Orange Update 2008 from the Committee to Review the Health Effects of Agent Orange in Vietnam Veterans or Exposure to Herbicides (Seventh Biennial Update) Board on Population and Public Health Practices, published by the IOM. Although Dr. Fraser erroneously cited to pages 297-304 of the report (pertaining to skin cancer, basal cell cancer and squamous cell cancer), his essential information is correctly found in the IOM's report pertaining to brain cancer on pages 345 to 354. 

Dr. Fraser noted that a panel reviewed prior Updates on Agent Orange and the association with brain cancers, along with a review of new studies available on the relationship of Agent Orange to the development of brain cancer. Dr. Fraser recounted that in 2006, the panel concluded that prior statements made about an association between brain cancers and exposure to Agent Orange were overly definitive. 

In this regard, the Board's separate examination of the 2008 report reflects that the panel changed the classification for brain cancer to "inadequate or insufficient information to determine an association between exposure to chemicals of interest and brain cancer" as opposed to earlier conclusions of "no association."  

Dr. Fraser concluded that, in his professional opinion, given the available scientific information available and having reviewed the VA claims file, it is at least as likely not that there was a medical nexus between the Veteran's malignant glioma and his exposure to Agent Orange. He noted that the chemical component of Agent Orange felt responsible for its health effects was TCDD, also known as dioxin. He recounted that TCDD is a potent immunotoxic agent and may be expected to have effects on the expression of immune function in the body. He described gliomas as soft-tissue tumors, and noted that Agent Orange had been established as causing soft-tissue sarcomas. As discussed above, however, the AFIP's October 2010 medical opinion that the tumor was not a soft tissue sarcoma (mesoderm) but rather was a CNS tumor (neuroectoderm) is far more persuasive and on the matter of pathology and is afforded a far greater probative value at to the proper classification of the Veteran's tumor. 

Dr. Fraser described oligodendrogliomas as extremely rare in an individual older than 35 years, and noted that the average age at diagnosis was 35 years; however, he noted, the Veteran was 47 at the time of his diagnosis. He asserted that environmental factors were known to play a significant role in the development of cancers, and that toxins such as Agent Orange can cause genetic transformation leading to cancers. He described Agent Orange as the only risk factor for brain tumor development to which the Veteran had been exposed. Dr. Fraser further asserted that the Veteran had no known exposures to chemical agents other than in Da Nang. Dr. Fraser opined that the Veteran did not have any risk factors for brain cancer and that the clinical course of his cancer did not fit with the known epidemiological data available. He further asserted that the time period between the Veteran's exposure to Agent Orange and the onset of his tumor was consistent with the time period experienced for a brain tumor induction and growth.

In August 2010 the Board received from the AFIP a second report as previously requested. With respect to the critical question of whether the Veteran's exposure to Agent Orange caused his glioma, the AFIP physicians asserted that their expertise did not extend to answering this question, as they were pathologists rather than epidemiologists. The relevant conclusion in their report was that "[w]e defer to the Institute of Medicine's opinion that there is 'inadequate or insufficient evidence to determine an association" between exposure to herbicides and the development of brain cancer... [W]e cannot accurately assess the probability that his cause of death was associated with other exposure[s] he may have experienced during his service, as there is inadequate evidence from scientific literature to link other environmental exposures to the development of gliomas." 

Having carefully considered the appellant's contentions in light of the procedural history of this case, the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). The evidence is in equipoise as to whether the Veteran's fatal malignant glioma was a result of in-service exposure to herbicides.

There is no disagreement among the medical opinions of record as to whether it is possible that the Veteran's exposure to Agent Orange caused his brain tumor, but rather there is a wide range of opinions as to the level of certainty that such a relationship may exist or did in fact exist. 

Over the course of this claim, no competent medical professional has opined that the Veteran's death was not caused by his presumed exposure to herbicides. The undersigned anticipates that eliciting further medical opinions in this matter, which has now been before VA in excess of 17 years, would only result in receiving further opinions and counter-opinions that similarly range as to matters of possibility and probability in an area where the known medical literature and the state of the medical art can be viewed as lending support to either side of the question. 

The Appellant's central contention, as voiced by Dr. Bash and essentially endorsed by Dr. Montemarano, is that the studies relied upon by the IOM as part of the National Academy of Sciences in its periodic recommendations to VA are unreliable because they are statistically flawed. See 38 U.S.C.A. § 1116(b) (in substance, authorizing the Secretary of Veterans Affairs to establish presumptions of service connection based on herbicide exposure based upon reports from the National Academy of Sciences, based on statistically significant results of studies). 

The AFIP has stated that it is not aware of any scientific literature that would associate development of exposure to herbicides and anaplastic oligodendroglioma of the brain; notably, however, the AFIP physicians have asserted that that risk factors for oligodendrogliomas are largely unknown, and that because they are experts in pathology rather than epidemiology, they cannot assign a probability to the chances that the Veteran's tumor was related to his exposure to Agent Orange.

The AFIP has provided probative and expert evidence, but has drawn limits of its area of expertise to matters of pathology and classification of the Veteran's tumor. and have declared themselves inexpert as to matters of etiology or epidemiology as opposed to pathology. The lack of known studies associating the Veteran's very specific type of tumor to exposure to herbicides is evidence against the claim.  However, on this record, the lack of any etiological opinions from the AFIP, other than those relying on what is stated in inconclusive medical studies, limits the probative value of its opinions and does not in whole serve to place the preponderance of the evidence against the claim. 

Given the state of the record, the Board will not further delay disposition of this matter. Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (observing that it was within the Board's discretion to obtain further evidence when such development is required to render a decision on a claim); see Shoffner v. Principi, 16 Vet. App. 208 (2002); Winsett v. West, 11 Vet. App. 420 (1998); compare Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA may not undertake development of a claim if such action is to obtain evidence "against the claim"); Mariano v. Principi, 17 Vet. App. 305 (2003) (holding that because it would not be permissible for VA to undertake additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose).

Thus, for the required element of medical nexus, under the specific facts of this case, the there is a reasonable doubt in favor of the appellant's claim - from a legal perspective. The facts of this case fit the doctrine of reasonable doubt as defined by VA regulation: When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102.

It is important to note that this decision does not establish a presumption of service connection for any type of brain cancer. The decisions of the Board are not precedential. 38 C.F.R. § 20.1303.  The competent medical evidence is in equipoise on the matter of a medical nexus between the Veteran's fatal malignant glioma and his exposure to Agent Orange during service. The criteria for service connection for the cause of the Veteran's death are therefore approximated. Accordingly, entitlement to service connection for the cause of the Veteran's death is warranted.


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. 

Under 38 U.S.C.A. § 5121(a) (West 2002), accrued benefits are defined as 'periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as 'accrued benefits') and due and unpaid for a period not to exceed two years.'

The law has been amended to remove a two-year limitation on accrued benefits so that a veteran's survivor may receive the full amount of an award for accrued benefits. See The Veterans Benefits Act of 2003, § 104, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). This amendment is applicable only with respect to deaths occurring on or after December 16, 2003; thus, it is not applicable in the present case. 

Accrued benefits include those the Veteran was entitled to at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). Thus, the appellant could not furnish additional evidence that could be used to substantiate her claim, and VA could not develop additional evidence that would substantiate the claims of entitlement to accrued benefits. 'Evidence in the file at date of death' means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. Hayes v. Brown, 4 Vet. App. 353 (1993); 38 C.F.R. § 3.1000(d)(4).

As was noted in a letter received from the appellant's attorney in November 2011, it is not disputed that the type of brain tumor from which the Veteran died is not a disease that may be presumptively service connected due to herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309(e). Thus, the critical question with respect the accrued benefits claim is whether at that time of the Veteran's death there was in the evidence of record a competent opinion of a medical nexus between the Veteran's exposure to herbicides during active service and the brain tumor that was the ultimate cause the Veteran's death. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

VA has concluded in reading 38 U.S.C.A. § 5101 and 5121 together that, in order for a surviving spouse to be entitled to accrued benefits, a veteran must have a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 

At the time of his death, the Veteran had a pending claim of entitlement to service connection for his malignant glioma, received on November 22, 1993. He claimed his malignant glioma was due to Agent Orange exposure during his active military service. As discussed above, for the purposes of the appellant's claim of service connection for the cause of the Veteran's death, the competent evidence of record is in equipoise as to whether the Veteran's malignant glioma is related to the Veteran's military service. However, for reasons discussed below, service connection for a malignant glioma for accrued benefits purposes is not warranted.

The RO sought to assist the Veteran in development of the claim up until the time of his death in May 1994; however, the claim remained unadjudicated as of the date of the Veteran's death. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Applications for accrued benefits must be filed within one year after the date of the Veteran's death. 38 U.S.C.A. § 5121(c) (West 2002). The appellant, who is the Veteran's surviving spouse, timely filed her accrued benefits claim in June 1994.

In a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death. However, there is an exception for outstanding service treatment records and VA records, as they are considered to be in the constructive possession of VA at the time of death. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a),(d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). Evidence in the file at date of death is to include 'evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death.'  38 C.F.R. § 3.1000(d)(4).

At the time of the Veteran's death, there was no competent medical evidence in the claims file, or in VA's possession or in a VA treatment record or service treatment record, that would relate the Veteran's exposure to Agent Orange during active service to his malignant glioma. In his November 1993 application, the Veteran asserted that his malignant glioma was a result of exposure to Agent Orange; however, the association of a brain glioma diagnosed many years after service with exposure to Agent Orange during service his is a matter requiring a substantial degree of medical expertise on the part of the person providing the medical opinion. As the Veteran had no medical expertise, his bare contention that that Agent Orange caused his glioma is of no probative value. 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); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (required elements to prove claim for service connection generally include competent evidence of nexus between in-service disease or injury and current disability).

Because at the time of the Veteran's death there was no competent medical evidence to relate the Veteran's malignant glioma to his period of active service, the criteria for service connection were not met in view of the evidence as it existed at the time of the Veteran's death. Further, as discussed above, the Veteran's malignant glioma is not (and was not) a condition for which a presumption of service connection is warranted based on exposure to Agent Orange. See 38 C.F.R. §§ 3.307, 3.309(e).


As the evidence in the claims file at the time of the Veteran's death, including that contained in service treatment records and VA treatment records existing at the time of the Veteran's death, contains no competent medical evidence to relate the Veteran's malignant glioma to his presumed exposure to Agent Orange during service, the preponderance of the evidence is against the claim for accrued benefits. 
The benefit of the doubt is therefore not for application in resolution of the essential medical nexus element of the Veteran's claim for service connection and, in turn, the appellant's claim for accrued benefits. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As a result, entitlement to accrued benefits based on the Veteran's claim pending at the time of his death for service connection for a malignant glioma is not warranted.

As the Veteran did not have any further claims pending at the time of his death, there is no other basis for entitlement to accrued benefits. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 90 (1998). 


Chapter 35 Benefits Claim

For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child, spouse, or surviving spouse of a veteran will have basic eligibility if the following conditions are met: the veteran was discharged from service under conditions other than dishonorable, or died in service; and (1) the veteran has a permanent total service-connected disability; or (2) a permanent total service-connected disability was in existence at the date of the veteran's death; or (3) the veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510; 38 C.F.R. §§ 3.807, 21.3021.


In light of the Board's decision granting entitlement to service connection for the cause of the Veteran's death, the appellant is eligible to receive educational benefits. 38 U.S.C.A. § 3501 (a)(1); 38 C.F.R. §§ 3.807, 21.3021(a).


ORDER

Service connection for the cause of the Veteran's death is granted.

Service connection for a malignant glioma for accrued benefits purposes is denied.

Eligibility for Chapter 35 educational assistance benefits is granted.





______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs