Citation Nr: 1337861 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-00 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967, including service in the Republic of Vietnam. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death. In April 2007, the appellant testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with the claims folder. In her December 2007 substantive appeal, the appellant requested a Board hearing at the RO. She withdrew her hearing request in November 2008. This claim was remanded by the Board in November. FINDINGS OF FACT 1. The Veteran died in March 2005; the cause of death was progressive mass effect from glioblastoma multiforme (GBM). 2. At the time of death, the Veteran had no service-connected disabilities. 3. The Veteran's death was not caused, or contributed to, by any disease or disability that was incurred in service or was otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to dependency, indemnity and compensation (DIC) benefits under § 1310 based upon service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, the appellant was sent a letter in December 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal; it satisfied the notice requirements under Hupp. The letter also explained what type of information and evidence was needed to establish an effective date. No further development is required with respect to the duty to notify. Complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in December 2011, and the claim was thereafter readjudicated in January 2013. Any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. 5103A (West 2002). In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the duty to obtain a medical opinion under 38 U.S.C.A. § 5103(d) was inapplicable to DIC claims because the provision specifically states it is only for "disability compensation." Another case, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), clarified DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims the provision of § 5103A (a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. The VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A (a)(2) (West 2002). Here, all reasonably identified and available medical records have been secured; including VA and private records. The claims file contains the Veteran's service treatment records, as well as post-service reports of private treatment, private opinions and a VA opinion. Moreover, the statements in support of the claim are of record, including testimony provided at an April 2007 DRO hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the April 2007 DRO hearing shows the appellant gave information regarding her claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. The appellant has not raised complaints regarding the conduct of the hearing, nor has her representative who was present at the hearing. In November 2011, the Board remanded this claim for Hupp notice, SSA records and an opinion. There has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). While the VA opinion writer did not specifically mention Dr. E.H.'s May 2007 letter to the appellant, the writer did review the entire file, discuss the substantive opinions submitted by Dr. E.H. in October 2008 and August 2009 and provided specific rationale for the conclusions reached in the opinion. As noted, SSA records are in the file and Hupp notice was provided. In January 2013, the Board received a response statement from the appellant and a waiver for review of agency of original jurisdiction (AOJ) consideration of additional evidence and the 30 day waiting period. The Board has reviewed the statement but finds it duplicative of the appellant's last statement. The Board concludes that there is no prejudice in proceeding with consideration of this case without affording the AOJ an opportunity to issue another supplemental statement of the case (SSOC); proceeding with the claim without a remand to the AOJ is not prejudicial to the appellant. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection for the Cause of the Veteran's Death Service connection will be established for disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002). 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) (2013). Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse upon the service connected death of a veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. § 3.5(a) (2013). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2013). A service connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related. 38 C.F.R. § 3.312(b) (2013). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1) (2013). In determining whether the 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. Id. 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. Id. Further, where the veteran served continuously for ninety (90) or more days during a period of war, and if a malignant tumor became manifest to a degree of 10 percent or more within one year from the date of his or her termination of such 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. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 C.F.R. § 1154(a) the Board must do more than look for a medical nexus in adjudicating claims with lay evidence; it must also discuss competence and credibility. The Court noted that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Id; See also 38 C.F.R. § 3.159(a)(2) (2013) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). When the claim is in equipoise, reasonable doubt will be resolved in favor of the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Herbicide Presumption Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, such as Agent Orange. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). Certain diseases have been associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service; however, brain cancer or GBM is not listed. 38 C.F.R. § 3.309(e) (2013). In December 2010, VA explained the most recent research done by the National Academy of Science (NAS) regarding brain cancer in the Federal Register: NAS discussed four new studies regarding cancers of the brain and nervous system (including the eye). It found that the new studies were consistent in finding no association between herbicide exposure and the development of gliomas (the most common type of brain cancer). NAS noted that one of the new studies provided evidence of a possible relationship between herbicide exposure and meningiomas (a type of nervous system cancer) in women, but that the lack of identification of specific chemicals of interest makes interpretation of that result uncertain. NAS concluded that the overall evidence remained inadequate or insufficient to determine whether and association exists. 75 Fed. Reg. 81332, 81334 (Dec. 27, 2010). More recently, in the Federal Register, VA announced there was no change in its prior conclusion regarding cancer of the brain and nervous system. 77 Fed. Reg. 47924, 47927 (Aug. 10, 2012). As noted in the October 2011 informal hearing presentation, in addition to the presumptive criteria, the appellant may establish service connection based on exposure to herbicide with proof of actual direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Background The Veteran's DD 214 and service personnel records confirm his service in the Republic of Vietnam. Service treatment records do not show symptoms, treatment or diagnoses regarding any cancer or brain tumor. In her May 2006, claim the appellant contended that the Veteran's death from progressive mass effect of GBM was caused by exposure to herbicides in Vietnam. In February 2007 letters to her congressional representatives she acknowledged that GBM was not a presumptive disability and that his records did not show any pertinent findings in service. In an April 2007 statement, she reported that the Veteran first became symptomatic in December 2004 and died the following March. She asserted that GBM was a tumor caused by chemicals. She asserted that the Veteran did not work around chemicals in any of his jobs as a barber, school teacher, and manufacturing plant worker. She stated that Agent Orange was a dioxin and that it caused cancer. She questioned the validity of some diseases being presumptive while brain cancer was not. In November 2008, the appellant sent a detailed letter regarding her own research. She stated her husband was very healthy before being admitted to the hospital, save for high blood pressure. She noted her opinion and those of other sources that a brain tumor should be a presumptive disease, inasmuch as there was a presumption applicable to other cancers. She reported that she had spent several days at a university library and reviewed many studies. (See November 2008 letter, pp 39, 50.) She felt that NAS had not done enough studies or research on brain cancer. (November 2008 letter, p 54.) She stated that by reading obituaries in the local paper (some of which she submitted), she noticed many Vietnam veterans died of cancer. She expressed her deep grief over the death of her husband. As noted above, the appellant also submitted abstracts for studies from her own research, some of which supported her position and some which did not. One abstract, published in August 2007, described a case-control study in southwestern France on brain tumors and pesticide exposure; the conclusion was that a high level of occupational exposure to pesticides might be associated with an excess risk of brain tumors (to include gliomas). Many of the provided summaries of the studies noted their limitations. For example, a May 1994 Institute of Medicine report showed the committee concluded that the available evidence was insufficient to determine an association between neurologic disorders (including the risk of brain tumors) and exposure to herbicides used in Vietnam. A 1990 study on mortality and morbidity among Army Chemical Corps Vietnam veterans was too small to be valid. Some summaries were not relevant or were so unrelated as to be not helpful. One showed brain cancer was not the subject of the study (see 2006 Army Chemical Corps Vietnam veteran abstract). Another was an ongoing study and referenced the calculation of exposure measures for current residents of Vietnam only (see 1998 abstract on occurrence of soft-tissue sarcomas). Another was regarding trends in brain cancer incidence and survival in the United States generally (April 2006 abstract on brain cancer trends). Another focused on Air Force veterans (the Veteran served in the Army) and the authors found no significant increase in the risk of death due to cancer at all sites (October 1998 abstract). Private treatment records confirm the appellant's statements regarding the Veteran's health history. In October 2004, he received a physical and he was totally normal, except for hypertension. December 2004 to January 2005 records describe his initial diagnosis and an operation to remove the tumor. A January 2005 record from Dr. L.E. related that he had Agent Orange exposure in Vietnam and a family history of melanoma only. The March 2005 death certificate shows the immediate cause of death was the progressive mass effect from GBM. His occupation was listed as machinist. The appellant submitted three statements from Dr. H., a treating physician of the Veteran, each of which show increasing support for a nexus. In May 2007, Dr. H. wrote a letter to the appellant in which he stated that it was reasonable to assert that dioxin exposure (to include Agent Orange) puts one at higher risk of developing a brain tumor. He explained: According the article in the American Journal of Epidemiology in 1989 there can be a fourfold higher rate of the occurrence of brain cancer than would be ordinarily expected. Therefore, I do think we have considerable reason to ponder cause and effect. He included a synopsis of the cited article. The summary mentioned that 1989 a study of Vietnam Chemical Corps veterans showed they reported a rate of brain cancer that was about four fold higher than expected and concluded: "So this link deserves further exploration." In October 2008, Dr. H. wrote a letter to VA and stated: 1I am concerned that his exposure to dioxin placed him at a higher risk of developing a brain tumor. It is my opinion that his brain tumor, as described, was, as likely as not, related to his exposure to Agent Orange, herbicides or dioxin. Please note that he had no health problems except for some hypertension. Finally, in August 2009 Dr. H. wrote another letter. He noted that he was a practicing neurologist. He observed that the Veteran was exposed to Agent Orange that was a known carcinogen and dioxin. Agent Orange caused genetic damage that resulted in the development of cancers. Humans exposed to this type of pesticide had an increased rate of cancer development. He explained that there was "a linear correlation to the exposure and instance of tumors. Because these pesticides are fat soluble, they have a tendency to concentrate in the central nervous system, including particularly the brain." He opined that occupations at risk for pesticide exposure included airline crews, military personal, forestry employees, farmers and horticulture workers. Dr. H. cited to several journal articles published in 1989, 1993, and 1998. He stated: "It is known that Vietnam veterans exposed to dioxin, or "Agent Orange," have a 5.6 relative risk of developing astrocytomas such as glioblastoma multiforme." As a result of his research, he concluded that it was as likely as not that the cause of the brain tumor was due to pesticide exposure while in Vietnam. In December 2012, a VA physician was asked to provide an opinion. The physician reviewed the file, noted the Veteran's service in Vietnam, the appellant's statements (including submitted literature) and cited to the NAS report that concluded the overall evidence remained inadequate or insufficient to determine whether an association existed between Agent Orange and cancers of the brain and nervous system. The physician also summarized Dr. H.'s letters, and his point specifically that being exposed carcinogens and dioxin placed the Veteran at higher risk for developing a brain tumor. Also, the physician noted Dr. H.'s citation to journal articles that support pesticide causation of the brain tumors astrocytomas and high-grade astrocytomas (GBM) and his conclusion that the Veteran's tumor was due to Agent Orange exposure while he was in Vietnam. The physician opined that the Veteran's death from GBM was less likely than not connected to active duty service, including his presumptive exposure to the herbicide Agent Orange. The recent literature, which was attached to the opinion, was consistent in finding no positive association between herbicide or pesticide exposure and gliomas, including GBM, in men or women. The literature also showed GBM to be the most common primary brain neoplasm, comprising approximately half of all primary brain tumors. The literature cited in the December 2012 VA opinion was from 2008 and 2012; more recent than anything cited or submitted by Dr. H. and the appellant. One 2012 summary of GBM from a neurology clinical practice treatise stated that GBM is the most common neuroepithelial tumor and second most common primary nervous system tumor. It is also the most common primary brain neoplasm. A 2008 abstract from the American Journal for Epidemiology described a study with the outcome showing there was no association between glioma and exposure to insecticides or herbicides in men or women. Another 2012 study supported this conclusion; it found no significant positive associations with glioma "observed with cumulative years or estimated lifetime cumulative exposure of farm pesticide use." Analysis It is not in dispute that the Veteran died of GBM and that he was exposed to herbicides while serving in Vietnam. There are conflicting opinions as to whether the GBM was related to the in-service herbicide exposure. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Here, the Board assigns the December 2012 VA opinion greater weight. While both Dr. H., the Veteran's treating physician, and the VA physician who wrote the opinion were informed of the pertinent facts of the Veteran's case, the VA physician was able to review the entire file, including the research submitted by the appellant. The VA physician's opinion was more fully informed than those of Dr. H. Dr. H. did not note or acknowledge the extensive NAS research on the subject of herbicide and Vietnam veterans. Dr. H. cited to medical research that was over ten years old. See, Jones v. Shinseki, 26 Vet. App. 56, 64 (2012) (treatise evidence should generally be weighed by the Board rather than considered indisputable fact, "given that accepted medical knowledge changes over time"). Also, Dr. H. never explained why initially in 2007 he felt the cause and effect of herbicide exposure and cancer was something to "ponder" while in 2008 and 2009 he became more certain that his it was as likely as not that the disease was due to herbicide exposure. While Dr. H. provided some reasoning for his opinion, the VA physician provided clear reasoning with citation to more recent medical literature on the subject of brain cancer and herbicide exposure. The VA physician also had the additional benefit of reviewing the entire file, including all of the abstracts submitted by the appellant. Comparatively, the Board assigns the VA December 2012 opinion more weight. Nieves-Rodriguez, 22 Vet. App. at 304. The Board finds the appellant is competent to report what she observed regarding what she personally observed regarding the Veteran and his illness during his lifetime. 38 C.F.R. § 3.159(a)(2). The Board finds her account of the Veteran's illness to be fully credible and supported by the private treatment records. However, as she seems to acknowledge, an expert opinion is needed to provide a nexus between the Veteran's presumed exposure to herbicide in service and his diagnosis of GBM. See, Jandreau v. Nicholson, 492 F.3d 1372, 1377, Footnote 4 (Fed. Cir. 2007) (explaining that a lay person is not competent to even identify a condition like cancer). As the etiology of the disability is at the heart of this case, her statements are assigned limited weight. The Board finds service connection for the cause of death of the Veteran is not warranted based on all of the evidence. The Veteran died of GBM and the evidence does not support direct service connection; while the Veteran died from this disease, it was not incurred in service. 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. § 3.303(d). Also, this disability does not fall under the herbicide presumption and the evidence does not show that it manifest to 10 percent or more within one year from the date of the Veteran's termination of such service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116(f); 38 C.F.R. §§ 3.307, 3.309. See also 77 Fed. Reg. at 47927. Further, the Board finds that the evidence does not show that herbicide exposure caused GBM. Combee, 34 F.3d 1039. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs