Citation Nr: 1512499 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 13-07 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD P. Wirth, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1976. He died in August 2006. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In February 2013, the Appellant filed a timely Substantive Appeal (VA Form 9) and did not request a hearing before the Board. In an October 2013 submission, the Appellant requested a hearing before the Board at the RO in Asheville, North Carolina. The Appellant, however, did not clarify whether she desired a video conference or an in-person hearing. Accordingly, in November 2013, the Board remanded this appeal with instructions to contact the Appellant and determine the type of hearing she would like and to afford her the requested hearing. The Appellant was contacted by VA in January 2014. After discussing the claim, the Appellant opted to withdraw her hearing request. See October 2014 Report of General Information (VA Form 27-0820). As such, the Board finds compliance with its November 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As there have been no further requests for a hearing, the Board deems the hearing request to be withdrawn. See 38 C.F.R. § 20.702 (2014). The Board notes that the Appellant submitted additional evidence after the RO certified the appeal to the Board. While some of the evidence was submitted with a waiver of initial agency of original jurisdiction (AOJ) consideration, not all of the evidence was accompanied by such a waiver. However, Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, amends 38 U.S.C. § 7105 by adding new paragraph (e). Under 38 U.S.C. § 7105(e), if the claimant or the claimant's representative submits new evidence with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board, unless the Veteran explicitly requests AOJ consideration. In the present case, the Appellant's Substantive Appeal was received February 15, 2013; therefore, the new 38 U.S.C. § 7105(e) is applicable to the present appeal. As the Appellant did not explicitly request that the AOJ review the additional evidence, the evidence is properly before the Board for initial review. The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record; however, the Veteran's VBMS file does not contain any documents at this time. FINDINGS OF FACT 1. The Veteran died in August 2006. His death certificate lists the immediate cause of death as glioblastoma multiforme. 2. At the time of his death, the Veteran was service connected for hypertension, anxiety, hemorrhoids, and diabetes. 3. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 4. Resolving all reasonable doubt in the Appellant's favor, the evidence is in at least equipoise as to whether the Veteran's glioblastoma multiforme was related to Agent Orange exposure in service. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Inasmuch as the determination below constitutes a full grant of the benefits sought on appeal, no discussion of VA's duties to notify or assist is necessary. To the extent that there may be any deficiency of notice or assistance, it is harmless and there is no prejudice to the Appellant in proceeding with adjudication of the claim. The Veteran died in August 2006. His certificate of death lists the immediate cause of death as glioblastoma multiforme, a form of brain cancer. At the time of the Veteran's death, service connection was established for hypertension, rated as 10 percent disabling; anxiety, rated as 10 percent disabling; hemorrhoids, rated as 0 percent disabling; and diabetes, rated as 10 percent disabling. 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) (2014). The Board finds there is no record evidence that supports a finding that hypertension, anxiety, hemorrhoids, or diabetes caused the Veteran's death. In the present case, the Appellant contends that the Veteran's cause of death, glioblastoma multiforme, was caused by his exposure to Agent Orange in Vietnam. Moreover, the Appellant contends that the Veteran was not just exposed to Agent Orange, but was heavily exposed to it while performing electrical maintenance and repairs for a full year on aircraft that carried Agent Orange. The Veteran's personnel records verify that he was an aircraft electrical repairman. They also verify that the Veteran served in Vietnam during the Vietnam Era, and, thus, is presumed to have been exposed to certain herbicides. If a veteran was exposed to Agent Orange during active service, service connection is presumed for certain disorders; however, there is no herbicide-related presumption of service connection for brain cancer. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2014). Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e) (2014); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). A veteran may still pursue direct service connection by showing it is at least as likely as not that the veteran's non-presumptive disease was caused by herbicide exposure. See Combee v. Brown, 34 F.3d at 1043-44. The Appellant retained J.B., M.D. to conduct an Independent Medical Evaluation (IME) to determine if there is a nexus between the Veteran's military service and his death due to glioblastoma multiforme. As is relevant to this case, Dr. J.B. not only holds a medical degree from the University Of Alabama School Of Medicine and a pharmacy degree from the Auburn University School of Pharmacy, but has completed an internal medicine internship and residency and is a Certified Independent Medical Examiner. After reviewing the Veteran's private medical records; considering VA's determination that the Veteran is presumed to have been exposed to Agent Orange during service; and reviewing the current literature concerning the pathology and etiology of glioblastoma multiforme, an article discussing a prior Board case where service connection was granted for glioblastoma multiforme, and relying on Australian research that suggests an increase in brain cancer among Vietnam veterans, Dr. J.B. opined in his October 2013 IME that the Veteran's glioblastoma multiforme was more likely than not caused by his exposure to Agent Orange during service. The Appellant also offered opinions from the Veteran's treating physicians to support her case. The Veteran's oncologist, C.C., M.D., stated in an October 2012 letter that, while there is not concrete data or evidence showing a correlation between Agent Orange and glioblastoma multiforme, he certainly felt that it is possible that this may have been related. In a February 2013 letter, the Veteran's retired primary care physician, L.S., M.D., noted that the Veteran was heavily exposed to Agent Orange in service and that it was his opinion that it is as likely as not that the Veteran's brain tumor was caused by Agent Orange. The Veteran's neurologist, R.A., M.D., stated in a July 2013 letter that the family notes the Veteran had Agent Orange exposure in service and opines that it is as likely as not that the Veteran's brain tumor was caused by Agent Orange. The Board begins by noted that its decisions are not precedential. Thus, whether other veterans were or were not granted service connection for glioblastoma multiforme is not binding upon the Board. The Board makes it findings and issues its decisions based on the unique facts and evidence specific to each veteran. The Board concurs with Dr. C.C.'s statement that there is no concrete evidence that shows a correlation between Agent Orange and glioblastoma multiforme. While the Appellant has submitted several reports and studies to support her claim, none specifically find that Agent Orange causes brain tumors. For example, one article reexamines the classification of dioxin as a human carcinogen generally and does not specifically address whether it causes brain tumors. Others examine exposure to chemicals generally, and not to Agent Orange specifically. The Australian Vietnam Veterans Mortality and Cancer Incidence Studies found a somewhat higher incidence of brain cancer in Vietnam veterans, but did not find the increase to be statistically significant and made no attempt to identify the etiology of this increased cancer rate. Nonetheless, there is support in the evidence for the Appellant's contention that there is a link between Agent Orange and brain tumors. For example, in the May 1990 Report to the Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange by Special Assistant Admiral E.R. Zumwalk, Jr., Dr. Zumwalk opined that, after reviewing the scientific literature related to the health effects of Vietnam Veterans exposed to Agent Orange, as well as other studies concerning the health hazards of civilian exposure to dioxin contaminants, it is at least as likely as not that there is a relationship between exposure to Agent Orange and brain cancer. The Board finds that the evidence of record with respect to this particular veteran is at least in equipoise as to whether the Veteran's glioblastoma multiforme was due to his Agent Orange exposure in service. The Board finds the Appellant's testimony credible that the Veteran was heavily exposed to Agent Orange, as he had to bury his hands and face in the aircraft to perform his duties on a constant basis for a year. The Board also finds the opinion offered in Dr. J.B.'s October 2013 IME probative as Dr. J.B. has credentials relevant to the issues at hand and reviewed a substantial amount of medical literature prior to opining that it is at least as likely as not that the Veteran's glioblastoma multiforme was caused by his exposure to Agent Orange during service. Moreover, two the Veteran's treating physicians offered opinions that it is at least as likely as not that the Veteran's glioblastoma multiforme was caused by Agent Orange exposure. The Veteran's oncologist offered that he certainly felt it was possible that there is a link between Agent Orange exposure and the development of glioblastoma multiforme. Given that the evidence is in equipoise as to whether the Veteran's glioblastoma multiforme was due to his Agent Orange exposure in service, the Appellant is entitled to the benefit of the doubt as to whether there is a nexus between this in-service Agent Orange exposure and the Veteran's glioblastoma multiforme. Therefore, resolving all reasonable doubt in the Appellant's favor, and in the absence of any negative opinions of record, the Board finds that service connection for the cause of death of the Veteran is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs