Citation Nr: 1201988 Decision Date: 01/19/12 Archive Date: 01/30/12 DOCKET NO. 08-31 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for glioblastoma multiforme for accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service from May 1969 to July 1971. The Veteran died in March 2008. The appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from August 2008 rating decisions of the Boise, Idaho Regional Office (RO). FINDINGS OF FACT 1. It is presumed that the Veteran was exposed to herbicides during his active service in Vietnam. 2. Private medical records reflect the Veteran was diagnosed with glioblastoma multiforme in February 2006. 3. In March 2006, the Veteran filed a claim for entitlement to service connection for glioblastoma multiforme due to Agent Orange exposure. 4. In a June 2006 rating decision, the RO denied the Veteran's claim for entitlement to service connection for glioblastoma multiforme; the Veteran perfected an appeal with regard to the issue in October 2007. 5. The Veteran's death certificate shows that he died in March 2008 and that the cause of death was congestive heart failure due to or as a consequence of vascular overload. The underlying cause of death was glioblastoma multiforme that he had had more than one year. 6. The appellant timely filed her claim for accrued benefits in April 2008. 7. Glioblastoma multiforme cannot be diassociated from the Veteran's herbicide exposure in Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.102, 3.307, 3.309, 3.312, 3.313 (2011). 2. The criteria for entitlement to service connection for glioblastoma multiforme, for the purpose of accrued benefits, have been met. 38 U.S.C.A. § 1110, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent that the actions taken herein below are favorable to the Appellant, further discussion of VCAA is not required at this time. II. Legal Criteria and Analysis A. Cause of Death Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that 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) (2011). Disability which is proximately due to, or aggravated by, a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2011). To establish 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. For the service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal relationship. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(a)(3)(West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). Pursuant to Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also Notice, 61 Fed. Reg. 41,442 -449, and 61 Fed. Reg. 57,586 -589 (1996); Notice, 64 Fed. Reg. 59,232 -243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600 - 08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395 -407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258 -260 (May 7, 2009) (adding AL amyloidosis to the list of presumptive disabilities in the regulation). The most recent issuance by the Secretary has added hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of presumptive disabilities in the regulation. Q See Final Rule, 75 Fed. Reg. 53,202 -16 (Aug. 31, 2010). In order to establish service connection by presumption, based on herbicide exposure, a disease listed above (see 38 C.F.R. § 3.309(e)) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). In this case, the appellant contends that the Veteran's death from glioblastoma multiforme was due to his in-service Agent Orange exposure. Private treatment records show that the Veteran was diagnosed with, and treated for glioblastoma multiforme between 2006 and 2008. His March 2008 death certificate indicates that the cause of his death was congestive heart failure (from which he suffered for hours), due to or as a consequence of vascular overload (from which he had suffered for weeks), and that the underlying cause was glioblastoma multiforme (from which he had suffered more than one year). In order for a veteran to establish service connection on a presumptive basis for a disability that results from exposure to (herbicides) Agent Orange while serving in Vietnam, the disability must be one that is statutorily listed as a presumptive condition. In this case, it is not disputed that the Veteran served in Vietnam during the Vietnam Era. As such, he is presumed to have been exposed to Agent Orange. However, the Board notes that the disabilities that have been positively associated with Agent Orange do not include brain tumors, to include glioblastoma multiforme. See 38 C.F.R. §§ 3.307, 3.309 (2011). Therefore, entitlement to service connection of a presumptive basis is not warranted. However, even if the presumptive service connection statutory provisions are not applicable the appellant may still establish service connection for the veteran's cause of death by competent and probative evidence showing that such disease is somehow related to service (including to Agent Orange exposure therein). See Combee v. Brown. With respect to the etiology of the Veteran's brain tumor, the appellant submitted medical literature and internet articles pertaining to exposure to dioxins (including Agent Orange) and the development of cancer (including brain cancer). The appellant also submitted Board decisions that granted service connection for the cause of the Veteran's death from brain tumors based on exposure to Agent Orange. The appellant also submitted favorable opinions regarding the etiology of the Veteran's glioblastoma multiforme. In this regard, a letter dated on June 20, 2006, shows that Dr. R. D., one of the Veteran's treating oncologists, opined: It is at least as likely as not, that his exposure to Agent Orange and other chemicals while on active duty in Vietnam and Laos are the cause of his multifocal glioblastoma. This opinion is based on the lack of family history in this patient, the lack of any significant other history of cancer, the fact that [the Veteran] was the only member of his family to have served in Vietnam and was exposed to Agent Orange, as well as the other herbicides and pesticides during his service from July 1970 to July 1971. This service is documented on DD from 214. As the enclosed references state, dioxin is a known carcinogen and may be a causative carcinogen at any anatomical site. References are attached. Additionally, in a letter dated on September 19, 2006, Dr. M. E. R., the Veteran's neurologist, stated: I first met [the Veteran] when he presented with seizures on February 3, 2006. The [Veteran] has been under my care as his neurologist since his diagnosis. It is impossible to identify with certainty the cause of [the Veteran's] brain tumors. He has a negative family history of brain tumors specifically, and for cancer of any type. However, he served in Vietnam from July1970 to July 1971, significant exposure to high concentrations of Agent Orange. It is as likely as not that these tumors developed as a result of his exposure to herbicides while on active duty in Vietnam. His military record (DD 214) documents his military service in Vietnam. Research (enclosed) supports the known carcinogenic effects of dioxin (Agent Orange) at any anatomical site. Finally, in a letter dated on October 2, 2006, Dr. W. H. K., one of the Veteran's treating oncologists, noted that the Veteran had been referred to him from a neurosurgeon after he was diagnosed with glioblastoma multiforme of the brain, he had undergone a surgical resection, and under his direction, he was receiving radiation and chemotherapy treatment. Dr. K. opined: It is impossible to identify with certainty the cause of [the Veteran's] brain tumor. He has a negative family history of brain tumor specifically, and for cancer of any type. However, he served in Vietnam from July 1970 to July 1971, and my understanding is that he had significant exposure to high-concentrations of Agent Orange. It is as likely as not that this tumor developed as a result of his exposure to herbicides while on active duty in Vietnam. His military record (DD214) documents his military service in Vietnam. Research supports the known carcinogenic effects of dioxin (Agent Orange) at any anatomical site. Also of record is an August 20, 2007 Memorandum in which VA's Chief Public Health and Environmental Hazards Officer, in response to an undated memorandum from the Director of Compensation and Pension Service, provided an opinion regarding the etiology of the Veteran's glioblastoma multiforme due to exposure to herbicides. According to L. R. D.: The recently-released Institute of Medicine (IOM), National Academy of Sciences (NAS), report on herbicides used in Vietnam, Veterans and Agent Orange, Update 2006 (available on line at www.nas.edu) concluded that there was inadequate or insufficient evidence to determine whether an association exists between exposure to herbicides and cancers of brain and nervous system (IOM report, prepublication copy, page 10). This assessment was based on information obtained from extensive review of the scientific and medical literature. The VA by law and precedent gives a lot of weight to the IOM findings on health effects from exposure to herbicides used in Vietnam. Therefore, at this time, in our opinion it is possible that the Veteran's glioblastoma multiforme was due to exposure to herbicides used in Vietnam but we cannot state that it is likely or as likely as not that the disease resulted from such exposure. Further, in an August 28, 2007 Advisory opinion, the Director of Compensation and Pension Service, based on the August 20, 2007 opinion provided by the Under Secretary for Health, and review of the evidence in its entirety found that "there is no reasonable possibility that the Veteran's glioblastoma multiforme was the result of his exposure to herbicides in Vietnam." In weighing the evidence of record, the Board finds that the three favorable opinions with respect to etiology of the Veteran's brain cancer to be highly probative and will be given much evidentiary weight because they were provided by his treating oncologists and neurologists, who were familiar with his medical history and who also provided well-supported rationales for their stated conclusions. Further, the Board observes that in his August 2007 opinion, VA's Chief Public Health and Environmental Hazards Officer for did not specifically rule out the possibility that the Veteran's glioblastoma was due to Agent Orange exposure or dissociate it from his Agent Orange exposure. Rather, he opined that it was "possible" that the Veteran's brain tumor resulted from Agent Orange exposure but could not state "that it is likely or as likely as not." Therefore, the Board finds that the evidence is in equiopoise as to the etiological relationship between the Veteran's fatal gliosbastoma multiforme and his Agent Orange exposure in Vietnam. Accordingly, resolving all reasonable doubt in the appellant's favor, the Board concludes that service connection for the cause of the Veteran's death is warranted. 2. Accrued Benefits Although a veteran's claims terminate with his death, certain survivors of a deceased veteran are eligible to receive payments from VA of accrued benefits based upon the deceased veteran's statutory entitlement to such benefits. Accrued benefits are defined as periodic monetary benefits payable under laws administered by VA 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. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). There are various threshold requirements that an appellant must meet in order to pursue an accrued benefits claim. One such requirement is that applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121 (c); 38 C.F.R. § 3.1000 (c). A claim for DIC is deemed to include a claim for accrued benefits. 38 C.F.R. § 3.1000. Another requirement is that a veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236, 1241-1242 (Fed. Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at the time of death, the surviving spouse has no claim upon which to derive his or her own application). The provisions of 38 C.F.R. § 3.1000(d)(5) define a claim for VA benefits pending on the date of death as a claim "filed" with VA that had not been finally adjudicated by VA on or before the date of death. In addition, as noted, accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). In this case, the record shows that in March 2006, the Veteran filed a claim of entitlement to service connection for brain cancer due to herbicide exposure. Such claim was denied by the RO in a June 2006 decision. The Veteran submitted a VA Form 9 in October 2007, thus perfecting an appeal with regard to the matter. The Veteran died in March 2008. Thus, at the time of the Veteran's death, he had a pending appeal of entitlement to service connection for glioblastoma multiforme, to include as due to Agent Orange exposure. A review of the evidence deemed to be of record at the time of the Veteran's March 2008 death reflects an approximate balance of positive and negative evidence. In this regard, the Chief Public Health and Environmental Hazards Officer August 2007 opinion did not specifically rule out the possibility that the Veteran's glioblastoma multiform was due to Agent Orange exposure. Further, in 2006, the Veteran's private treating oncologists and neurologists opined that it was at least as likely as not that the Veteran's exposure to Agent Orange caused his multifocal glioblastoma. As previously noted, these opinions are accorded considerable weight in light of the fact that they were provided by the Veteran's treating oncologists and neurologists who was familiar with the Veteran's medical history and provided well-supported rationales for their stated conclusions. Therefore, resolving all reasonable doubt in the appellant's favor, the Board concludes that service connection for glioblastoma multiform should be granted for the purpose of payment of accrued benefits. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to service connection for glioblastoma multiforme for accrued benefits is granted. ____________________________________________ H. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs