Citation Nr: 1331321 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-28 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served with a National Guard/Reserve component between 1986 and 1995, with active duty from October 1987 to May 1988; September 1990 to July 1991; and October 1991 to February 1992. The Veteran died in October 2006 and the appellant is his widow. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In October 2012, the Board remanded the appeal for additional development. FINDINGS OF FACT 1. The Veteran died in October 2006; with the cause of his death shown as glioblastoma multiforme; he was not service connected for any disability during his lifetime. 2. The most probative evidence of record is against a finding that the diseases that caused or contributed materially or substantially to the Veteran's death is related to his military service or may be presumed to have been incurred in service. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1113, 1116, 1117, 1131, 1310, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, obtaining a medical opinion. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In claims of service connection for the cause of the Veteran's death, the Court in Hupp v. Nicholson, 21 Vet. App. 342 (2007) held that VA's 38 U.S.C.A. § 5103(a) notice requirements also includes (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The Board finds that written notice provided in December 2006 and February 2007, prior to the May 2007 rating decision, and December 2012 fulfills the provisions of 38 U.S.C.A. § 5103(a), with the claim re-adjudicated in the May 2013 supplemental statement of the case. VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that the RO has obtained and associated with the claims file all identified service and post-service medical records including the available active duty and reserve component treatment records and personnel records as well as his post-service records from Gary Levinson, M.D., Mercy Medical Center, and Neurological Surgery as well as letters from Sabrina M. Walski-Easton, M.D. In this regard, VA has been unable to locate any treatment records from the Veteran's October 1991 to February 1992 period of military service. In May 2009, the RO prepared a Memorandum of Unavailability outlining the steps it took to obtain these records. Later in May 2009, the RO notified the appellant that these records could not be located. Given the steps taken by the RO to obtain these records, as outlined in the May 2009 memorandum, as well as the fact that the appellant was provided notice of these records unavailability, the Board finds that adjudication of the appeal may go forward without these records. VA obtained medical opinions in January 2007 and January 2013, and the January 2013 opinion substantially complies with the Board's October 2012 remand directions because the opinion was based on a review of the entire record, and took into account both the positive private medical opinions obtained by the claimant supporting her theory of entitlement. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the claimant will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the paper and electronic VA claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the claimant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The appellant contends that the Veteran's death due to a glioblastoma multiforme/brain tumor was caused by his exposure to environmental hazards during his deployment to the Persian Gulf in support of the Gulf War. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or (generally) from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including a brain tumor, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that the October 2006 Certificate of Death reflects that the immediate and only cause of the Veteran's death was glioblastoma multiforme, a brain tumor. As the Veteran was not service connected for any disability during his lifetime, the evidence would need to show that the Veteran should have been service connected during his lifetime for that disability for the appellant to prevail on her claim. The evidence does not show, and the appellant does not contend that the Veteran's terminal brain tumor manifested itself during service, or within one year of the Veteran's discharge from service. The Veteran's available service treatment records, including examinations dated in April 1988, July 1988, and April 1991, are negative for symptoms of and/or a diagnosis of glioblastoma multiforme/brain tumor. The post-service record does not show the Veteran being treated for the glioblastoma multiforme/brain tumor until 2006. Accordingly, entitlement to presumptive service connection for the glioblastoma multiforme/brain tumor under 38 C.F.R. § 3.309(a) is not warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The appellant contends that the Veteran was exposed to some toxin during his service in southwest Asia, which caused him to develop the tumor. In support of her claim the appellant submitted her own lay statements as well as statements from men that served with the Veteran asserting that his brain tumor was caused by the toxins he was exposed too during his service in the Persian Gulf; medical articles about Gulf War service and brain tumors; and October 2006 and June 2008 statements from one of the Veteran's treating physician, Dr. Sabrina Walski-Easton. As to the October 2006 statement from Dr. Walski-Easton, its essence consisted of two sentences. [The Veteran] was diagnosed with a grade 4 glioma, primary brain tumor (glioblastoma multiforme). This tumor just as likely as not would be caused by toxic exposure to chemicals that he may have encountered while deployed in Iraq in 1990 and 1991. In her second June 2008 letter, she stated the following: [The Veteran] is a gentleman who suffered an extremely malignant form of brain tumor glioblastoma, multiforme that I do believe is likely related to the exposure to toxic chemicals, which would include diesel fuel, while deployed in 1990 and 1991 in Iraq and Kuwait. Particularly since other mechanic serving with him have disabilities due to their service in the war and the aggressive nature of his brain tumor in a young person, I believe that the chemicals would have contributed in a substantial way to the development of this tumor. In connection with the claim, VA medical opinions were obtained in January 2007 and January 2013, addressing the relationship between the glioblastoma multiforme/brain tumor that caused the Veteran's death and his military service. As to the January 2007 VA examination it was opined, after citation to controlling medical literature outlining the frequency of brain tumors in the general population, and the lack of consensus of any specific environmental factors associated with an increase of risk of brain tumors, that it was less likely than not that the Veteran's glioblastoma multiforme/brain tumor was related to active military service. In the subsequent January 2013 VA opinion, the provider noted that Dr. Walski-Easton did not offer any scientific evidence to support her opinion, such that it was purely speculative. It was also opined that the medical literature filed by the appellant regarding exposure to toxic chemicals causing cancer are not peer reviewed sources of information and cannot be validated. The examiner thereafter provided excerpts from peer reviewed sources regarding the frequency of brain tumors in the general population, concluding there was no association between the Veteran's military service and his development of glioblastoma multiforme. Initially, the Board finds that Dr. Walski-Easton's favorable opinions cannot be accorded sufficient probative value to grant the benefit sought. As observed by the VA opinion providers, they contain no valid support for the conclusion. The first only vaguely referenced toxic chemicals the Veteran might have been exposed to in Southwest Asia, without indicating what chemicals they might have been, or how they are different from any other chemicals to which the Veteran would have been exposed during any other period of his life. Moreover, although diesel fuel is singled out in the second letter as among whatever other unidentified chemicals were thought to be responsible for the Veteran's illness, the rationale for singling out that particular chemical is not set forth. Nor is the significance of exposure during service, as compared to any other lifetime exposure explained. Further, attempting to support the conclusion that chemicals/diesel caused the Veteran's tumor by the fact that others serving with the Veteran became disabled (but did not develop this form of brain tumor), is not logical. As to the lay assertion by the widow and others found in the record, they are not probative since they are not competent to offer medical opinions on this complex subject, and clearly, the cause of a brain tumor is a complex medical subject. While medical article and treatise evidence that discusses relationships with certainty may be used to meet the requirement for a medical nexus between service and current disability, generic information in a medical journal or treatise is too general and inclusive to serve that purposes in a claim for service connection. As noted by the VA opinion provider in this case, the articles here cannot be considered to have a valid application to this Veteran's circumstances, since they were not peer reviewed or otherwise confirmed. The VA opinions provided here essentially acknowledge that it is not known what causes the brain tumor this Veteran had, although they note it is the most common brain tumor occurring in adults. That the cause of this tumor is unknown, is similarly the logical inference of the letters from Dr. Walski-Easton, and is consistent with the information noted in the 2007 VA opinion that there is a lack of a consensus regarding increased risk of brain cancer associated with environmental factors. Considering the entirety of the record, and the current state of knowledge about this form of brain tumor, the VA opinion providers considered it unlikely that the Veteran's military service played a role in its development. Dr. Walski-Easton evidently thought otherwise, but the imprecision of her reasoning, and absence of logic, in the Board's view, renders that conclusion unconvincing. Given that, together with evidence from two separate physicians who concluded the Veteran's military service was not likely related to the cause of his brain tumor, the greater weight of the evidence is against the service connection claim. Having decided that the record does not show that the Veteran should have been service connected for a disability during his lifetime that caused or contributed substantially to cause his death, service connection for the cause of the Veteran's death must be denied. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs