Citation Nr: 1626505 Decision Date: 07/01/16 Archive Date: 07/14/16 DOCKET NO. 14-06 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty in the Army from August 1968 to April 1970, to include service in the Republic of Vietnam. His awards included the Combat Infantryman Badge and the Purple Heart. He died in September 2011. The appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from June and November 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In March 2016, the appellant presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims file. At the hearing, the appellant submitted additional evidence and argument with waiver of RO consideration. 38 C.F.R. § 20.1304 (2015). Therefore, the Board may properly consider such newly received evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran died in September 2011. His death certificate lists the immediate cause of death as malignant brain tumor. 2. At the time of his death, the Veteran was service connected for post-traumatic stress disorder (PTSD) with depression, renal cancer status post nephrectomy of the left kidney, tinnitus, and left ear hearing loss. 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. The evidence is in at least equipoise as to whether the Veteran's malignant brain tumor is 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, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in September 2011. His certificate of death lists the immediate cause of death as malignant brain tumor. At the time of the Veteran's death, service connection was established for the following: PTSD with depression, rated as 100 percent disabling; renal cancer, status post nephrectomy of the left kidney, 30 percent disabling; tinnitus, 10 percent disabling; and left ear hearing loss, rated as 0 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). The Board finds the record does not suggest, and the appellant does not argue, that PTSD with depression, renal cancer, tinnitus, or hearing loss caused or contributed to the Veteran's death. In the present case, the appellant contends that the Veteran's cause of death, a malignant brain tumor, was caused by his exposure to Agent Orange in Vietnam. The appellant contends that the Veteran was not just exposed to Agent Orange, but was heavily exposed to it while spraying it and walking through the jungle. See December 2012 Notice of Disagreement. The Veteran's personnel records verify his combat service in Vietnam during the Vietnam Era, and, thus, he 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. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Nevertheless, 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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. 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. Combee, 34 F.3d at 1043-44. Post-service treatment records show that the Veteran was diagnosed with a brain mass in February 2010. In a February 2012 letter, one of the Veteran's treating physicians, Dr. FCB provided a medical opinion about the relationship between the Veteran's exposure to Agent Orange while in service and his glioblastoma multiforme (brain tumor). Dr. FCB stated: I have evaluated the available literature both recent and remote. I am struck most by the finding that the remote literature found few illnesses that were related directly or indirectly to the use of Agent Orange and the dioxin which it contained and is considered the most carcinogenic component of that herbicide. It seems as more and more research is conducted into this exposure both to our servicemen and to the native population where Agent Orange was used we are finding more and more related events. I would have to conclude therefor that it is as likely as not that [the Veteran's] glioblastoma multiforme was indeed related to his exposure to Agent Orange. The appellant also submitted medial treatise evidence discussing a link between pesticide exposure and brain cancer, and prior Board decisions wherein service connection for the cause of the veteran's death was granted based on a finding that terminal brain cancer was related to Agent Orange exposure in service. See evidence submitted in March 2016. Also of record is a June 2012 VA medical opinion. After reviewing the claims file, to include Dr. FCB's opinion, the VA physician stated: The veteran died of glioblastoma multiforme . . . . The contention is that the veteran's conceded exposure to Agent Orange led to his development of glioblastoma multiforme (GM). GM is not presently on the list of presumptive Agent Orange illnesses. However that does not preclude a. causative link between the two. In fact, animal studies have shown the development of multiple malignancies in animal exposed to dioxin including GM (Institute of Medicine Report- "Veterans and Agent Orange: Update 2008" published in 2009). It is plausible to suppose then that GM could develop as a result of dioxin exposure in humans. It is therefore AT LEAST AS LIKELY AS NOT that exposure to Agent Orange led to his development of glioblastoma multiforme which subsequently led to his death. Thereafter, in October 2012, another VA physician reviewed the Veteran's claims file and opined that the Veteran's terminal brain tumor was not related to his Agent Orange exposure in service. The physician stated: Glioblastoma multiforme (GBM) is the most common and most aggressive malignant primary brain tumor in humans, involving glial cells and accounting for 52% of all functional tissue brain tumor cases and 20% of all intracranial tumors. Despite being the most prevalent form of primary brain tumor, GBM incidence is only 2-3 cases per 100,000 people in Europe and North America. In regard to causes, studies are suggesting that genetic abnormalities, radiation exposures and in some remote cases herbicides have been found to possibly be linked to the cancer. Most studies have not linked Glioblastoma with herbicides (Agent Orange). Both viral infections and certain chemical exposures have been postulated as risk factors for this group of diseases, but the cause(s) remain unknown. In review of the most recent Epidemiologic studies, the claimed condition is less likely than not incurred or caused by the claimed in service exposure. The Board begins by noting that its prior 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 finds that the evidence of record with respect to this particular Veteran is at least in equipoise as to whether the malignant brain tumor was due to his Agent Orange exposure in service. As noted above, the Veteran's exposure to Agent Orange is supported by the evidence of record. Dr. FCB's February 2012 opinion and the June 2012 VA opinion were both positive; both provide a supporting explanation, although neither discuss particulars of the Veteran's case. The October 2012 VA opinion provided a negative opinion; it also provided a supporting explanation, but did not address the Veteran's specific case of glioblastoma multiforme. Thus, the positive and negative opinions are of equal probative value. Given that the evidence is in equipoise as to whether the Veteran's malignant brain tumor was due to his Agent Orange exposure in service, the appellant is entitled to the benefit of the doubt. Therefore, resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of death of the Veteran is warranted. 38 U.S.C.A. §5107(b); 38 C.F.R. §§ 3.102, 3.312. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs