Citation Nr: 1600327	
Decision Date: 01/06/16    Archive Date: 01/21/16

DOCKET NO.  12-10 889	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.  


REPRESENTATION

Appellant represented by:	Drew N. Early, Attorney


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to June 1969.  He died in January 2007, and the appellant is his surviving spouse.  

This matter is on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.   

The appellant testified before the undersigned Veterans Law Judge in June 2015.  A transcript of the hearing is of record.

This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS).  Accordingly, any future documents should be incorporated in the Veteran's VBMS file.  


FINDING OF FACT

It is at least as likely as not that the Veteran's brain cancer, diagnosed as glioblastoma multiforme and which was a substantial cause of his death, was related to toxic herbicide exposure while serving in the Republic of Vietnam.  



CONCLUSION OF LAW

The cause of the Veteran's death is attributable to a disability incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 5103, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duty to Notify and Assist

VA Duty to Notify and Assist - 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 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.

Cause of Death

In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death.  For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related.  For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2015).

In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected.  That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304.

In this case, the Veteran died in January 2007.  According to his death certificate, the primary cause of death was cardiopulmonary arrest that was the end-stage result of brain cancer, which was clinically diagnosed as glioblastoma multiforme.  At the time of his death, he was service connected only for an acquired psychiatric disorder with a 50 percent disability rating.  It is the appellant's contention that the Veteran's brain cancer was the result of his exposure to toxic herbicides while serving in the republic of Vietnam.  

After a review of the evidence of record, the Board determines that service connection for the cause of the Veteran's death is warranted.  Specifically, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common.

Service connection is warranted on a presumptive basis for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, B-cell leukemias, respiratory cancers and ischemic heart disease. 38 C.F.R. § 3.309(e).

Here, the evidence indicates that the Veteran was physically present in the Republic of Vietnam.  Notably, his personnel records, although scant, contain orders to depart the Republic of Vietnam in June 1969.  Therefore, he is presumed to have been exposed to toxic herbicides for VA purposes.  

While the Board notes that glioblastoma multiforme is not one of the disorders that may be presumed related to toxic herbicide exposure under 38 C.F.R. § 3.309(e), service connection may be nonetheless established when there is proof of actual direct causation as due to active duty service.  See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994).  In this regard, the Board relies heavily on a September 2015 opinion provided by a VA physician who specializes in oncology.  There, after a thorough review of the Veteran's medical history, the oncologist noted that the exact cause of glioblastoma multiforme is not known.  However, it was known that people exposed to certain chemicals, to include some pesticides, were at a higher risk of developing this disorder.  After citing clinical studies on the issue, the oncologist concluded that the Veteran's brain cancer was at least as likely as not related to his toxic herbicide exposure.  The oncologist's opinion is largely consistent with other positive (but less conclusive) opinions provided by private physicians in October 2004, May 2005, April 2015 and June 2015.  

Therefore, in view of the medical evidence of record, the Board concludes that the Veteran's glioblastoma multiforme, which was listed as a cause of death on his death certificate, is at least as likely as not related to his active duty service, and particularly to his exposure to toxic herbicides in the Republic of Vietnam.  As such, service connection for the cause of the Veteran's death is warranted on this basis.  


ORDER

Service connection for the cause of the Veteran's death is granted.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs