Citation Nr: 1340941 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-16 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran had active service from December 1946 to May 1967. The Veteran died in January 2006. The appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Houston, Texas Regional Office (RO). The appellant testified at a July 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In September 2013, the appellant, through her representative, submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) review. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides during active service in Vietnam. 2. The Veteran died of brain cancer diagnosed as glioblastoma multiforme. 2. The Veteran did not have any disability of service origin that contributed substantially and materially to his death, or hastened it, or otherwise aided or lent assistance to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additional notice requirements apply in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of a veteran's death. In such a case, VA must provide a claimant: (1) a statement of the conditions, if any, for which the 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 (2007). 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). VA provided the appellant with a Hupp-compliant VCAA letter in July 2006. VA notified the appellant of the evidence needed to substantiate the claim, whether based on a service-connected or non-service-connected disability, identified the type of evidence that would best do so, notified her of VA's duty to assist, and indicated that it was developing her claim pursuant to that duty. VA also identified all of the conditions for which the Veteran was in receipt of service connection at the time of his death. VA noted that it would make reasonable efforts to assist the appellant in obtaining all other outstanding evidence provided she identified its source(s). VA also noted that it was the appellant's ultimate responsibility to ensure VA's receipt of all pertinent evidence. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, and VA and private medical opinions regarding the nature and etiology of the Veteran's fatal cancer. Pursuant to 38 C.F.R. § 3.655 (2012), all relevant evidence necessary for an equitable disposition of the appeal has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Analysis of the Claim Cause of Death The appellant contends that the Veteran's exposure to herbicides in service resulted in the development of the brain tumor that caused his death. She has also asserted that his exposure to herbicides caused his diabetes, which may have aggravated his brain tumor and/or contributed to his death. In order to establish service connection for the cause of death of a veteran, the evidence must establish that a disability of service origin caused, hastened, or substantially and materially contributed to the veteran's death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service-connected disability when the evidence establishes that such disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). The principal cause of death is one which singularly or jointly with some other condition was the immediate cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Accordingly, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Presumptive Service Connection A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6) (2012). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e) (2012), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Under 38 U.S.C.A. § 1116(b) and 38 C.F.R. § 1.17 (2012), the Secretary of VA is required by law to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to herbicides. The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as diabetes mellitus type II), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's death certificate lists the immediate cause of death as glioblastoma multiforme ("brain cancer"). The Veteran's service personnel records (STRs) indicate that he served in the Republic of Vietnam during the Vietnam War and, therefore, the Veteran is presumed to have been exposed to herbicides during service. However, brain cancer is not included as a disability entitled to the herbicide exposure presumption for purposes of establishing service connection. 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. Direct Service Connection In order to prevail on the issue of service connection in the context of this claim, once the death of the veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999) (both discussing the factors of service connection). 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 layperson. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (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). Competent medical evidence means 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 mean 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). 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. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for the cause of the Veteran's death. The appellant initially asserted that the Veteran's diabetes was a contributing factor to the Veteran's death, as his brain cancer was aggravated by his diabetes incurred due to his exposure to herbicides in service. In the alternative, the appellant contends that the Veteran developed brain cancer directly due to exposure to claimed carcinogens, such as radiation and herbicides, during service. Having considered the entire record of evidence, both lay and medical, the Board finds that the preponderance of evidence is against the appellant's claim for service connection for the cause of the Veteran's death. The Veteran's 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). The Veteran's service personnel records (STRs) are entirely silent or negative for any evidence pertaining to a brain tumor. His separation examination in February 1967 noted a history of back strain but no other no complaints or medical complications during service. Post-service medical records show the Veteran presented increasing speech and mental status changes in 2004 and was diagnosed with a brain tumor in August 2004. He died in January 2006. 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 for several disabilities including brain cancer due to radiation exposure. In April 2006 the appellant filed her cause of death claim stating the Veteran's diabetes contributed to the Veteran's death. In support of her assertion that the Veteran's death was due to diabetes (incurred as a result of herbicide exposure) the appellant submitted an April 2006 opinion from the Veteran's internist. Dr. M.W. stated, "I have been the Veteran's internist since September 1997...It is my medical opinion that his diabetes was a contributing factor to his death. It would be proper to include diabetes in Part 2 of the cause of death on his death certificate." In November 2006, the RO granted service connection for a number of disabilities including diabetes as due to herbicide exposure. The RO denied service connection for brain cancer secondary to radiation exposure. In December 2008, the appellant submitted a statement maintaining her assertion that the Veteran's diabetes limited the treatment options for his brain cancer and decreased the effectiveness of the treatment the Veteran received. In a December 2009 VA medical opinion, the reviewing allopathic and osteopathic physician noted "A large number of studies have been conducted in cohorts of workers presumed to share common exposures. Standardized incidence or mortality ratios are compared to expected rates in the general population...In general, the data are inconsistent and limited by small numbers of cases, imprecise methods of exposure assessment, and potential bias. Moderate risks cannot be excluded by these studies and well-designed case-control studies would be necessary to properly address these issues...A second problem is that failure to detect a significant association with the risk of brain tumors may be methodological. In one review of 17 studies, for example, few were of sufficient size and design to completely ascertain EMF exposure." The examiner provided a list of sources for further review and concluded, "[m]y medical opinion is diabetes mellitus did not result to the death of this Veteran. Diabetes mellitus is less likely as not (less than 50/50 probability) to be a contributing factor in the Veteran's death due there is no evidence that caused any progression beyond the natural progression of the glioblastoma multiforme. This brain tumor is not associated to diabetes mellitus or Agent Orange either. Diabetes is not a risk factor to cause brain tumor either." The appellant also submitted two additional private medical opinions. In September 2013 Dr. D.S. an oncologist stated, "Exposure to herbicides has been associated with increased incidences of malignant tumors (including glioblastoma) in experimental animals. There has been an increased incidence of malignant tumors, (including glioblastoma) in Vietnam Veterans. Based on the above, Mr. [redacted]' glioblastoma is least as likely as not a (50/50 probability) caused by or as a result of exposure to Agent Orange." In October 2013, Dr. P.N. a neurosurgeon provided an opinion stating, "Glioblastoma is a highly aggressive form of brain cancer, with survival of 12 to 18 months with standard care. There are a significant number of Vietnam veterans who have been diagnosed with this form of cancer. There is increasing evidence linking the incident of these tumors to exposure to toxins including herbicides. Laboratory studies of Dioxin TCDD, the main dioxin in Agent Orange, have shown this agent to cause cancer in a number of organs in animals. Malignant brain tumors, including gliobastoma, are one of the tumors seen in laboratory animals after exposure to TCDD. There have been many reports of the diagnosis of glioblastoma in Vietnam veterans. It is possible that exposure to Agent Orange may cause the same cancers in humans as in animals. There is, therefore, an equal chance that the incidence of glioblastoma in Vietnam veterans may have been caused by Agent Orange verses random occurrence. After reviewing the Veteran's records, his diagnosis of glioblastoma has a 50/50 probability of having been caused by exposure to Agent Orange." In addition to the private medical opinions referenced above, the appellant submitted a Board decision granting service connection for glioblastoma multiforma due to herbicide exposure based on the benefit of the doubt rule. Weighing the evidence the Board first considered the appellant's own statements. The appellant contends that the Veteran developed brain cancer because of his exposure to herbicides in service. The appellant also asserts that the Veteran's service-connected diabetes contributed to the Veteran's death. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of the Veteran's brain cancer falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In analysis of cases involving multiple medical opinions, each medical opinion should be examined, analyzed, and discussed for corroborative value with other evidence of record. Wray v. Brown, 7 Vet.App. 488 (1995). The December 2009 VA examiner's opinion is competent medical evidence as it was provided by a qualified medical examiner. 38 C.F.R. § 3.159(a)(1). Moreover, the Board finds no reason to doubt the credibility of the clinician's findings, as they were based on a review of the evidence in the claims file and information obtained from extensive review of the scientific and medical literature. See Madden, 125 F.3d at 1481 (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board has carefully considered the private medical opinions provided but finds them to be of little probative value when evaluated with the other medical evidence. While Dr. M.W. the Veteran' internist is competent, his medical opinion that diabetes contributed to the Veteran's death was not supported by any specific reported history of complications of the brain tumor attributable to diabetes or any other well-supported rationale. Dr. D.S. and Dr. P.N. are also competent medical professionals; however, their opinions are also of little probative value. As opposed to the December 2009 VA medical opinion, which was generated towards resolution of the Board's specific inquiry, the generic nature of these two medical opinions do not address the facts in this particular Veteran's case with any medical certainty. See generally Mattern v. West, 12 Vet. App. 222 (1999) ("Generally, an attempt to establish a medical nexus . . . solely by generic information in a medical journal or treatise is too general and inconclusive..."); see also Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). These physicians did not treat the Veteran during his lifetime and their opinion that his brain tumor was caused by herbicide exposure were based on probabilities. Furthermore, these physicians failed to provide any specific references to the studies or laboratory reports used to support their conclusions. The Board decision submitted by the appellant is not precedential. 38 C.F.R. § 20.1303. Thus, the does not establish a presumption of service connection for any type of brain cancer. Nonetheless, the Board has reviewed the decision and finds stark differences between the evidence submitted in the cited opinion and that presented in this case. The appellant in the cited opinion submitted three favorable opinions with respect to the etiology of the Veteran's brain cancer. In that case, the Veteran's treating oncologists and neurologists who were familiar with his medical history, provided well-supported rationales for their stated and medical opinions. In the instant matter, the only medical opinion accompanied by a clearly reasoned rationale is the negative etiology opinion from the VA examiner. A review of the evidence, to include the service and post-service treatment records, VA and private medical opinions, lay evidence, and the death certificate indicates that the Veteran's cause of death (brain cancer) was not due to his exposure to herbicides during service nor did his service-connected diabetes mellitus contribute to his death. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs