Citation Nr: 1645861 Decision Date: 12/07/16 Archive Date: 12/19/16 DOCKET NO. 12-21 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for glioblastoma. REPRESENTATION Appellant represented by: Vermont Office of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, R.C. ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to July 1976, and from November 2004 to January 2006. The Veteran had active duty for training (ACDUTRA) from July 15, 1989 to July 29, 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The Veteran passed away in September 2013. Subsequently, the Appellant, the Veteran's wife, was substituted as a claimant. The Appellant indicated her intent to continue the appeal regarding service connection for glioblastoma. The case has now returned to the Board for further appellate review. FINDING OF FACT The Veteran's glioblastoma resulted from environmental hazards during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for glioblastoma have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5013A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant seeks to establish the Veteran's entitlement to service connection for brain cancer - more specifically glioblastoma. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tumors of the brain, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101. With respect to the current appeal, this list includes tumors of the brain. See 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Notably, VA recognizes that the U.S. military utilized large burn pits to dispose of waste at every location wherein the military positioned a forward operating base (FOB) in Iraq, Afghanistan and Djibouti. M21-1, IV.ii.2.C.5.c. Similarly, VA recognizes that particulate matter levels in Southwest Asia - a complex mixture of extremely small particles and liquid droplets resulting from primary sources of dust storms and emissions from local industries - are naturally higher and may present a health risk to service members. M21-1, IV.ii.2.C.5.d. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Appellant contends that the Veteran's glioblastoma developed as a result of environmental factors, including mosquito bites from Anopheles mosquitos, during the Veteran's service in the Persian Gulf, which is outlined in the claim submitted in July 2011. In a fact sheet created by VA describing burn pits in Iraq, VA conceded that the Veteran had been exposed to burn pit toxins and particulate matter. The notice emphasized that while exposure to these toxins and particles can cause serious health effects, many other variables such as age, genetics, and existing medical conditions, influence the probability of certain health outcomes. Service treatment records reveal that in July 1987, presumably while the Veteran was serving on ACDUTRA, he received 4 "chigger bites." In July 1989, he hit his head on the inside of a turret while loading a tank. The examiner noted that the Veteran complained of neck pain which radiated to parts of his skull. In a personal medical history assessment, the Veteran reported that both of his parents had a history of brain strokes. A November 2005 Post-Deployment health assessment revealed that the Veteran reported that he did not know if he was exposed to any chemical, biological, or radiological warfare agents during his deployment. He also reported that he was not exposed to any of the environmental agents that were listed in the assessment, including smoke from oil fires and industrial pollution. The Veteran reported that he had no exposure concerns during deployment. An April 2006 memorandum issued by the Army regarding the risk characterization of air samples collected at Camp Buehring, Kuwait, noted that the risk exposure to the ambient air at the Camp was low, with medium confidence in the risk assessment. In a January 2011 diagnostic imaging report, the physician noted a solid and cystic mass which he thought could be a primary brain tumor such as glioblastoma multiforme. He scheduled the Veteran for a follow up appointment with a neuro-oncology specialist. In February 2011, after meeting with the specialist, the Veteran was diagnosed with glioblastoma. The specialist operated on the Veteran and removed part of the tumor, and then planned to follow up treatment with radiation and chemotherapy. In March 2011, an abscess was found in the cavity of the tumor and the Veteran had to be treated separately for that condition with seizure medication and antibiotics. Following that treatment, the Veteran continued radiation and chemotherapy in May and June 2011. In an August 2011 VA examination of the brain and spinal cord, the examiner noted that the Veteran had a malignant brain neoplasm, specifically diagnosed as glioblastoma multiforme with symptoms of dizziness, dysesthesia, numbness, and seizures. The examiner opined that it was less likely than not that the Veteran's brain tumor was incurred in or caused by any in-service injury, event, or illness. In support of the opinion, the examiner explained that literature research of many sources failed to document a causal relationship between exposure to environmental hazards or mosquito bites with the occurrence of glioblastoma multiforme. In an October 2011 VA addendum opinion, the examiner, the Chief of the neurology section, noted that a complete review was done of the Veteran's C-file, and that he had also searched for relevant literature with regards to the Veteran's glioblastoma and burn pits, oil fires, head injuries, and specific toxins that were emitted in the Persian Gulf area. The examiner opined that it was less likely than not that the Veteran's glioblastoma multiforme was caused by or the result of any head injuries incurred in service or due to exposure to oil fires. In support of the opinion, the examiner offered 4 specific reasons. The examiner first noted that the Veteran was the prototypic patient for primary glioblastoma multiforme because the disease is more common in males, the median age for diagnosis is 55-63, and it is twice more common in Caucasians than African Americans. The examiner also noted that typically the disease was diagnosed within 3 months of the onset of symptoms, and that there were no environmental toxins or inciting events known to cause it, although ionizing radiation was being evaluated. The examiner also explained that there was increasing evidence of an underlying genetic susceptibility to the disease. Second, the examiner found that there was no established causal link between brain injury and glioblastoma multiforme. Patients who had glioblastoma and a history of brain injury were found to have much more severe brain injuries than the Veteran. Epidemiological studies did not show an increased incidence of glioblastoma after head trauma, and in the cases where both existed, there was severe trauma with subsequent demonstrable brain tissue damage, hematomas, contusions, and scarring. Third, the examiner was unable to find any epidemiological studies which indicated that there was an increased incidence of glioblastoma amongst Veterans in general, or any subgroup of Veterans. The examiner did note one study that was specific to Persian Gulf War Veterans, but found there was no overall increase in death related to "brain cancer." Furthermore, when the study controlled for nerve agent exposure, the increased incidence in brain cancer deaths were no longer statistically significant. The examiner also noted that a civilian study of petrochemical workers showed no increase in the incidence of malignant brain tumors. Finally, the examiner found no causal link between glioblastomas and the toxins that the Veteran may have been exposed to. The only possible link with any of the designated toxins was with methylene chloride. A 1994 study estimated what the occupational exposure to methylene chloride might have been since 1920, and using that found an increased risk of astrocytic tumors with increased probability of having been exposed, but with the estimated cumulative exposure. A later 1999 "Critical Review" of the literature on the potential cancer risks of methylene chloride found only sporadic associations and "no substantive cancer risk." Since then, there have been no other studies that link glioblastoma to methylene chloride and this has not become an accepted association. In the Veteran's January 2012 notice of disagreement, his representative stated that there were several studies conducted by the National Institutes of Science that indicated an increased incidence of brain cancer among service members exposed to oil well fires during the Desert Storm operation. The Veteran submitted several journal articles and book excerpts in support of his claim. A 2009 study found that the risk of death due to brain cancer was not associated with Gulf War service in general but that Gulf War veterans exposed to nerve agents and to oil well fires had an increased risk of mortality due to brain cancer. The study did note that it did not address family history, genetics, or exposure to radiation that may have occurred during or after the Gulf War which may have placed Veterans at risk for developing brain cancer. A publication issued by the Institute of Medicine on the "Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan" found that, while there could be long-term health effects associated with burn pit emissions, there are many gaps in the data collected and further information is needed to make more conclusive determinations about the link between burn pits and specific disorders. In an April 2012 letter submitted by a physician's assistant who treated the Veteran, the physician's assistant opined that the Veteran's glioblastoma was due to his exposure to burn pits and the products of oil well fires. The physician's assistant explained that latency between exposures and glioblastoma development could exceed 20 years. Medical literature was cited in the letter in support of the opinion including an article from Institute of Environmental Health Sciences estimating that two-thirds of cancers are caused by exposure to environmental carcinogens, a presentation by Research Advisory Committee on Gulf War Veterans' Illnesses citing oil fires causing a marginally increased risk of brain cancer and another study reporting that Veterans who were potentially exposed to oil well fire smoke had a greater risk of death due to brain cancer as opposed to non-exposed Veterans. It was also noted in these documents that "the long-term effects of exposure is not entirely clear" and "results were suggestive" which warranted additional follow-up. In February 2013, an individual who stated that he served with the Veteran in the same unit, indicated that while serving near Camp Buerhing and surrounding bases in Kuwait, they were exposed to fumes and smoke from burn pits and oil fires on a daily basis. A similar statement was submitted by another individual who indicated that he served with the Veteran in Kuwait. Following the Veteran's death in September 2013, the Appellant submitted a claim for accrued benefits and an informal dependency and indemnity compensation claim with respect to the pending appeal. The Veteran's physician submitted a letter in June 2014, indicating that the Veteran was being treated for an incurable, malignant brain tumor with a life expectancy of 12-18 months at diagnosis. The physician, an oncologist, opined that it is as likely as not that there is a causal link between the Veteran's Gulf War experience and his exposure to oil well fires and his later development of glioblastoma. During the July 2016 hearing, the Appellant's representative testified that the June 2014 opinion was not strong, and that since the oncologist could not decide either way whether the glioblastoma was linked to service, the April 2012 opinion from the physician's assistant was more relevant. Another witness that testified at the hearing was an individual who served with the Veteran in Kuwait. This witness, R.C., testified that he and the Veteran were exposed to oil fires, as well as other chemicals and dust during their service. He also testified that the Veteran had probably denied any exposure to any environmental hazards in his health assessment because he wanted to return home quickly, without any complications. The witness also noted that there was a perception among soldiers that if they reported an exposure, it would have affected their ability to return to service in the future and possibly lead to difficulties with their military career. The Appellant also testified that the Veteran had felt that environmental factors, including exposure to dust and chemicals while in service, caused his glioblastoma. In this case, the Board finds the medical evidence both for and against the Appellant's claim to be both competent and credible. The medical experts disagree in conclusion and the VA Chief of Neurology opinion is well supported in articulating current scientific knowledge for concluding that glioblastoma is not related to environmental hazards in service. However, the United States Court of Appeals for Veterans Claims (CAVC) has observed that the benefit of the doubt rule does not require that a medical principle to have reached the level of scientific consensus to support a claim for veterans benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt standard reflects the nation's recognition of debt to our veterans and has assumed the risk of error in awarding benefits to the veteran). The opinions in support of the claim include an oncologist opinion based on an accurate factual predicate - knowledge of the Veteran's exposure to oil well fires. The opinion offered does lack rationale, but the Board cannot discount that the examiner offered the opinion based upon his medical training, expertise, clinical experience and knowledge of the Veteran's personal circumstances. Additionally, the examiner offered an opinion within his specialty. The record also includes studies suggesting an increased risk of brain cancer among oil well fire exposures noting that additional scientific research is necessary. Thus, while the state of current scientific knowledge is not conclusive, the CAVC has emphasized that VA's low standard of proof places the risk of error in awarding benefits to the veteran. Wise, 26 Vet. App. at 531. In the Board's opinion, the expert oncologist opinion coupled with scientific articles tending to support a causal relationship between Persian Gulf environmental hazards places the evidence both for and against the claim in relative equipoise. As such, the criteria for entitlement to service connection for glioblastoma have been met. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for glioblastoma is granted. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs