Citation Nr: 1419794 Decision Date: 05/02/14 Archive Date: 05/16/14 DOCKET NO. 10-36 358A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for oligodendroglia (OG), also claimed as brain cancer. REPRESENTATION Appellant represented by: Calvin Hansen, Esquire ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from April 1969 to February 1973. He died in August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Lincoln, Nebraska, regional office (RO) of the Department of Veterans Affairs (VA) which denied service connection for oligodendroglia (OG) ( also referred to in this decision as brain cancer). During the course of this appeal but prior to certification to the Board, the Veteran passed away in August 2011. In September 2011, after receiving notice of the Veteran's death, the RO withdrew the Veteran's pending appeals and provided the Veteran's surviving spouse with an Application for Accrued Benefits Due a Deceased Beneficiary (VA Form 21-601), advising her that she should use this form to file for entitlement to accrued benefits. In October 2011, the Veteran's surviving spouse submitted an application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits by a Surviving Spouse, (VA Form 21-534), as well as a completed VA Form 21-601 to the RO. In a June 2012 letter, the RO, now located at the VA RO and Pension Management Center in St. Paul, Minnesota, advised the Veteran's surviving spouse that it had received the VA Form 21-534 (DIC) claim, and advised that it was accepting this claim as a request to be substituted as the appellant for purposes of processing the Veteran's appealed claims on appeal to completion. The RO advised the appellant of the provisions in Section 212 of the Veterans' Benefits Improvement Act of 2008, Public Law 110-389 (VBIA 2008), providing for substitution of an eligible person who files a timely request for substitution (within one year of the claimant's date of death), and also advised that an eligible survivor may submit a substitution request by filing a VA Form 21-601 or VA Form 21-534 (such as was filed by the surviving spouse in this instance) or through any other communication indicating a desire to substitute for a deceased claimant. Thus, having granted this request, the appeal was continued with the surviving spouse as the appellant. See 38 U.S.C.A. § 5121A. The Board in a February 2013 decision disposed of additional issues on appeal and remanded the issue of entitlement to service connection for oligodendroglia (brain cancer), for further development. Such has been completed and this matter is returned to the Board for further adjudication. The Board's February 2013 decision is noted to have referred pending issues of entitlement to service connection for prostate cancer and service connection for cause of the Veteran's death to the RO for further adjudication. In a July 2013 rating the Ro resolved these issues by granting service connection for prostate cancer and for cause of the Veteran's death. FINDINGS OF FACT 1. The Veteran died in August 2011. The appellant filed a proper claim for substitution in October 2011. 2. A preponderance of the evidence shows that brain cancer did not have its clinical onset in service or within the first post service year, and it is not otherwise related to active service. CONCLUSION OF LAW Brain cancer was not incurred in or aggravated by active service, and neither may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2010 letter, sent prior to the initial May 2010 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim for brain cancer, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Further, VCAA notice error is not presumed to be prejudicial. See Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009). Neither the appellant nor the appellant's representative has asserted any specific prejudice in any of the VCAA notice given. The rating decision and the statement of the case (SOC) set forth detailed reasons and bases as to why the Veteran's claims was denied as well as the evidence that is needed to prove the claims. Thus any error in the VCAA notice is shown to be harmless. Relevant to the duty to assist, the Veteran's service treatment and personnel records, VA treatment records, and private treatment records have been obtained and considered. The Board has reviewed the Veteran's Virtual VA claims file. The appellant has not identified any additional, outstanding records necessary to decide this pending appeal. Additionally, the Board remanded this matter to afford a VA claims file review and opinion in March 2013 in order to adjudicate this claim. In this regard, the Board finds that the proffered opinions regarding the etiology of the brain cancer was based on a review of the records in the claims file of the deceased Veteran. As such, the Board finds that the opinion proffered by the VA examiner is sufficient to decide the claim. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2013). 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). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, to include cancer becomes manifest to a degree of 10 percent within one year from date of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, 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 service. 38 U.S.C.A. § 1116(f). It is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2010); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for cancers of brain and nervous system. See 75 Fed. Reg. 32540 (June 8, 2010), 75 Fed. Reg. 81332 -81335 (December 27, 2010). Thus, despite the Veteran's presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is not for application for the Veteran's brain cancer, diagnosed as OG. For these reasons, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable with regard to this disability. See 38 C.F.R. §§ 3.307(a)(6)(iii) , 3.309(e). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); 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). The evidence neither shows, nor has it been alleged that the Veteran's brain cancer, diagnosed as oligodendroglia (OG), began in service. The service treatment records reflect no evidence of such a cancer being manifested in service and examination of the head in the separation examination of February 1973 was normal. Nor does the evidence show that the brain cancer was diagnosed within a year of his February 1973 discharge from service, thus consideration of service connection under the one year presumption of certain chronic diseases is not warranted under; 38 C.F.R. §§ 3.307, 3.309(a). Instead service connection for the Veteran's brain cancer was alleged to be based on exposure to various toxins during active service, namely exposure to lead, asbestos and Agent Orange. In regards to such claimed exposures, the Board notes that the Veteran's military occupational specialty (MOS) was BT-000 with his education including that of fireman, engineman and boiler technician. His lay statement in September 2010 alleged exposure to asbestos and lead paint in the boiler room, with the paint usually applied with a roller, although it was sometimes sprayed. His lay history and duties are consistent with exposure to asbestos and lead. Regarding the Veteran's claimed exposure to Agent Orange, his service treatment records and service personnel records reflect that he served aboard the U.S.S. Horne from September 1969 to February 1973, and was aboard the U.S.S. Samuel Gompers in February 1973 at the time he was discharged from service. He was also briefly transferred to the U.S.S. America while being treated for an infectious condition diagnosed as tonsillitis in May 1970. The consultation sheet shows that the request for the transfer to the U.S.S. America is May 30, 1970, during which time such ship was operating in the Gulf of Tonkin. See U.S.S. America CV 66 History, http: www.uscarriers.net/cv66history.htm. The Veteran is not shown to have been aboard the U.S.S. Samuel Gompers during a time it was shown to have had multiple dockings to piers at Danang, Vietnam in April 1972, and the U.S.S. Horne and U.S.S. America ships are neither shown to have gone ashore nor were on inland waters in Vietnam, but are shown to be "Blue Water" ships. See VA memorandum titled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents." (From Compensation Service Intranet Home Page: Rating Job Aids--Vietnam Era Navy Ship Agent Orange Exposure Development Site). The Veteran alleged that while aboard the U.S.S. Horne, he was about 15 miles from shore. He indicated that the windows were open for fresh air, and believed that Agent Orange exposure could have taken place from breathing this air. A lay statement from a fellow service member alleged that laundry was washed in ocean water believed to be contaminated with Agent Orange. The Veteran indicated that he came home on emergency leave, wherein he left the Horne by helicopter to the U.S.S. America and from there was flown via a mail plane to the airport in Danang, Vietnam and then went home via a cargo plane. He thought this took place in 1972 in a March 2010 statement, although this was during a time of treatment for brain cancer and he indicated having problems giving specifics. Although there is no official documentation to confirm that the Veteran went ashore in Vietnam, for emergency leave purposes or for any other reason, JSRRC did confirm that both ships were in the Gulf of Tonkin at the same time in December 1972, and confirmed that there were many helicopter launches and landings from ship to ship without official itineraries, and that only names of senior officers were recorded for such trips. Among such trips was one dated December 23, 1972 from the U.S.S. Horne to the U.S.S. America during such time both ships were in the Gulf of Tonkin. No passengers were listed and the official records did not document further transit or docking inland into Vietnam. However, such documentation of helicopter landings from ship to ship does support the Veteran's lay history of such transit to an airport in Vietnam via the U.S.S. America for emergency leave. The Board shall afford reasonable doubt in this instance and find that it is as likely as not that the Veteran entered Vietnam briefly while on transit for emergency leave for the purposes of presuming exposure to Agent Orange. The evidence, as described in a treatment record of December 2009, reveals that the Veteran's brain cancer was initially diagnosed in late November 2009. He was diagnosed with Grade III OG after presenting for medical treatment with worsening symptoms of headaches, pain, nausea and vomiting. CT examination confirmed the presence of a brain mass and bleeding, necessitating surgical exploration and resection of the tumor. Following the surgery and diagnosis of the OG, he underwent radiation treatment, finishing such treatment in March 2010. He later died as a result of the brain cancer in August 2011. Among the pertinent evidence regarding the etiology of the brain cancer, a January 2010 letter from a Dr. B, PhD, MD, from the St. Francis Medical Center included a discussion about the Veteran's current treatment for his brain cancer diagnosed as OG, Grade III. It noted that the initial onset of this diagnosis was in November 2009. The doctor gave an opinion that it was at least as likely as not that the Veteran's diagnosis and condition may be the result of Agent Orange exposure (defoliant spray), asbestos or lead while serving in the military. A May 2010 VA examination that addressed the Veteran's brain cancer involved review of the records of the claims file. This examination noted that the Veteran was claiming service connection for the OG due to asbestos exposure in service and pointed out the lack of evidence of a brain tumor or cancer while on active duty. Review of the medical literature was noted to be totally negative for any definitive cause of OG. Therefore this cancer, OG, was less likely as not caused by or there result of his exposure to asbestos, Agent Orange or lead on active duty. An addendum medical opinion was obtained in March 2013. This included review of the evidence in the claims folder. The Veteran was noted to have served from April 1969 to February 1973, with Grade III OG diagnosed in November 2009 and death in August 2011. The examiner noted the history of exposure to asbestos, lead and Agent Orange in service. Regarding the etiology of the Veteran's brain cancer, diagnosed as OG, it was pointed out that such cancers are a type of glioma, believed to originate from the oligodendrocytes of the brain or from a glial precursor cell. These primarily occur in adults but are also found in children, with the average age at diagnosis of 35 years. The etiology of this diagnosis was unknown. Some studies were noted to have linked it to a viral cause. A 2009 Oxford Neurosymposium study illustrated a 69 percent correlation between a gene mutation and the tumor initialization. A single case report has linked the OG to irradiation and pituitary adenoma. Review of the available literature did not show any scientifically provided evidence and statistical data confirming the association of OG with exposure to asbestos, lead or AG. Regarding the presented information of the Veteran's exposure to asbestos, lead or Agent Orange, there was noted to be no data regarding the length of exposure, concentration of suspicious material in the air during exposure, any immediate reactions or necessity of medical care after that exposure. Again the examiner noted that review of available medical literature does not show any specific etiological causal factors associated with the development of OG. Presently the etiology of OG is unknown. The examiner also discussed the question of whether the Veteran's brain cancer was at least as likely caused or aggravated by service, including by such exposure to lead, asbestos or Agent Orange, again citing that the medical evidence reviewed does not show any specific factors which may be determined to have caused or aggravated the Veteran's brain tumors, particularly OG. The examiner agreed with the opinion from the May 2010 VA examiner that the medical literature was totally negative for any definite cause of OG. Therefore the Veteran's brain cancer was less likely than not caused by or the result of his exposure to asbestos, lead or Agent Orange in service. Where a medical expert has fairly considered all the evidence, his or her opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the VA examiner's March 2013 opinion on which it bases its determination that service connection for brain cancer not warranted. Since the VA physician's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the appellant's claim. The Board emphasizes that the VA medical examiner provided a valid medical analysis to the significant facts of this case in reaching a conclusion. The VA examiner did not only provide data and conclusions, but also provided a clear and reasoned analysis, that the United States Court of Appeals for Veterans Claims (Court) has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); see also Wray, 7 Vet. App. at 493. In providing the opinion, the examiner pointed to the lack of documented medical evidence in known medical literature and studies to support any definite etiological cause for the Veteran's brain cancer, to include the claimed causes from his conceded exposures to lead, asbestos and Agent Orange. See Prejean, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board notes that there is a January 2010 letter from St. Francis Medical Center that appears to provide a favorable etiological opinion stating that it is as likely as not the brain cancer may have been caused by or the result of Agent Orange exposure (defoliant spray), asbestos or lead while serving in the military. However no rationale for this opinion is provided, in contrast to the very detailed rationale provided by the March 2013 examiner. The Board therefore places greater weight on the VA opinion that finds that brain cancer was neither caused by nor aggravated by any exposure to lead, asbestos or Agent Orange. See Owens v. Brown 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches"). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans, 12 Vet. App. 22, 30 (1998); see also Rucker v Brown, 10 Vet. App. 67, 74 (1997), citing Colvin, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the VA physician who provided the written opinion in March 2013, for the reasons discussed above. Thus, a clear preponderance of the evidence is against a finding that the Veteran's brain cancer was caused by or related to any event in active service, including the exposure to lead, asbestos or Agent Orange. The probative evidence is also against finding that the Veteran's brain cancer began within the presumptive one year period following service and as noted above, it is not shown to be a presumptive disease to Agent Orange exposure. A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a current disability has been incurred in active service or caused or aggravated by another disability. While the Veteran was competent to report what came to him through his senses, he was not shown have medical expertise. See Layno, 6 Vet. App. 465 (1994). And although a lay witness competent in certain situations to provide a diagnosis of a simple condition such as shortness of breath or varicose veins, neither the Veteran nor the appellant is shown to be competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert, 21 Vet. App. 456 (2007). The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence of record is against the claim for service connection for hypertension. ORDER Service connection for OG, also claimed as brain cancer, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs