Citation Nr: 1617011 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 08-24 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for glioblastoma multiforme (brain cancer), for accrued benefits purposes. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service from August 1965 to January 1969. The Veteran died in November 2006, and the appellant is his surviving spouse. This matter initially came before the Board of Veterans' Affairs (Board) on appeal from a March 2007 decision by the RO which denied, in part, the benefits sought on appeal. The Board remanded the appeal for additional development in May 2012 and June 2014. The Board then denied the issues in July 2014. The appellant appealed the Board's July 2014 decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, the parties filed a Joint Motion for Remand seeking to vacate the July 2014 Board denial and remand the matter to the Board. The Court granted the Joint Motion in June 2015. FINDINGS OF FACT 1. The immediate cause of the Veteran's death was glioblastoma multiforme (brain tumor). 2. The Veteran served in the Republic of Vietnam during the Vietnam Era. 3. The Veteran was not service-connected for any disabilities at the time of his death. 4. The Veteran's brain tumor was determined to be etiologically related to the Veteran's exposure to herbicides and jet fuel. 5. The Veteran's cause of death was the direct result of his military service including his exposure to Agent Orange and jet fuel. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). 2. The criteria for an award of service connection for glioblastoma multiforme (brain tumor), due to herbicide exposure and jet fuel exposure, on an accrued basis, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As the Board grants service connection for the cause of the Veteran's death and service connection for brain cancer, for accrued benefits purposes, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Merits of the Claim The appellant contends that the Veteran's death was the result of his exposure to herbicides in Vietnam, to include Agent Orange, and his exposure to jet fuel. The appellant also contends that she is entitled to service connection for brain cancer, for accrued benefits purposes. The evidence is at least in equipoise regarding a connection between the Veteran's active service, including any exposure to herbicides or jet fuel, and his brain cancer which caused his death and the claims must therefore be granted. To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312. 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 be etiologically related. For a service connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. The standards and criteria for determining whether or not a disability is service-connected for purposes of 38 U.S.C.A.§ 1310 are the same as those applicable under 38 U.S.C.A. chapter 11. 38 U.S.C.A. § 1310(a). Accrued benefits are "periodic monetary benefits authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid..." 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a). By statute, the appellant takes the veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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). A Veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2015). Glioblastoma multiforme (brain cancer) is not a condition which VA presumes as due to Agent Orange exposure; however, the Federal Circuit has held that 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). September 2006 and December 2006 letters from the Veteran's treating physician, noted that the Veteran was exposed to Agent Orange as well as smoke and fumes from burning fuel while serving in Vietnam. The physician further noted that although there was no clear epidemiologic relationship, it was his opinion that it is reasonable to assume that chronic exposure to Agent Orange, and smoke and fumes from burning fuel, might have contributed to the Veteran's brain tumor as there was no clear data to prove otherwise and that there was more and more data suggesting that Agent Orange might play a role in causation of various cancers. A March 2013 VA medical opinion determined that the Veteran's glioblastoma multiforme was less likely as not caused by or as a result of a disease or injury including exposure to herbicides such as Agent Orange. The examiner explained that the etiology of a glioblastoma multiforme is unknown according to the consensus of the medical literature and as such any in-service exposure could not be considered a causation in its development. A July 2014 VA opinion was sought to reconcile the two previous opinions. The July 2014 VA examiner determined that it was less likely than not that the Veteran's glioblastoma multiforme (and his eventual death from this disability) was related to his active duty service, to include his exposure to herbicides and smoke and fumes from burning fuel. The examiner further explained that the Veteran's treating physician's opinion was merely based on a lack of evidence that brain cancer could not be caused by Agent Orange, rather than sufficient evidence that it could be. A private opinion was obtained in March 2016. The private examiner determined that while brain tumors were not currently officially-accepted Agent Orange-associated cancers, there was adequate published laboratory science and epidemiologic data linking Agent Orange or dioxins to glioblastoma. The examiner noted that there was also medical literature linking jet fuel exposure to cancer. In addition, there was no evidence that the Veteran's glioblastoma multiforme was attributable to social or family risk factors. Having reviewed the Veteran's record and the medical literature thoroughly, the private examiner determined that it was more likely than not that the Veteran's herbicide exposure caused or aggravated his risk for glioblastoma, and that it therefore substantially contributed to his ultimate death. He further determined that it was as likely as not that the Veteran's jet fuel exposure caused or aggravated his risk for glioblastoma multiforme as well. The Board finds the above medical opinions to be competent and credible. The Board finds that, based on the Veteran's treating physician's opinion as well as the March 2016 private examiner's opinion, that the Veteran's exposure to Agent Orange, and fumes from jet fuel while serving in Vietnam contributed to his development of glioblastoma multiforme, the evidence is at least in equipoise that the Veteran's brain cancer was due to or the result of exposure to Agent Orange as well as jet fuel fumes. As the evidence is, at least, in equipoise with regard to whether the Veteran's glioblastoma multiforme (brain tumor) is related to the Veteran's military service, specifically his exposure to Agent Orange and fumes from jet fuel while serving in Vietnam, the Board finds that service connection should be granted for cause of death and for glioblastoma multiforme (brain tumor) for accrued benefits purposes. ORDER Service connection for the cause of the Veteran's death is granted. Entitlement to accrued benefits for service connection for glioblastoma multiforme (brain tumor) associated with herbicide exposure and jet fuel exposure, is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs