Citation Nr: 1748167 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 16-54 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for glioblastoma multiforme, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD S.N. Hunn, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to December 1969. He died in February 2017. The appellant is his surviving spouse. She has been substituted in this appeal pursuant to 38 C.F.R. §3.1010 (2016). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A Board hearing was held in January 2017, where the Veteran and appellant testified as to the issue of service connection for glioblastoma multiform as due to herbicide exposure; a transcript of which is of record. FINDINGS OF FACT 1. The Veteran has verified active service in the Republic of Vietnam from December 1968 to December 1969 and is presumed to have been exposed to herbicides, including Agent Orange, in service. 2. During his lifetime, the Veteran had a diagnosis of malignant glioblastoma multiforme (brain tumor). 3. Multiple medical opinions of record reflect the view this Veteran's glioblastoma multiforme is causally related to in-service exposure to herbicide agents. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for glioblastoma multiforme as due to herbicide exposure have been met. 38 U.S.C.A. §1110, 1112, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §3.102, 3.159, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. See 38 U.S.C.A. §1110 (West 2014); 38 C.F.R. §3.303(a) (2016). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, service connection for certain diseases may also be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. See 38 C.F.R. §3.309(e). Presumed exposure to an herbicide applies to a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. See 38 U.S.C.A. §1116; 38 C.F.R. §3.307, 3.309(e), 3.313. In the present case, the Board finds that throughout the pendency of the appeal, prior to the Veteran's death, he had a diagnosis of glioblastoma multiforme. Private treatment records confirm a diagnosis of malignant glioblastoma multiforme, or brain tumor. See November 2015 to January 2016 Private Treatment Records. The appellant contends that the Veteran incurred glioblastoma multiforme during active service. Specifically, she contends that his in-service exposure to herbicides while on active duty in the Republic of Vietnam caused or contributed to his brain tumor. In this regard, the Veteran's service personnel records confirm that he served in-country in the Republic of Vietnam from December 1968 to December 1969. The Veteran has the requisite Vietnam service found in 38 C.F.R. §3.307(a)(6)(iii) and he is presumed to have been exposed during such service to an herbicide agent. Id.; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). In such circumstances, service connection may be established on a presumptive basis for the diseases listed in 38 C.F.R. §3.309(e). However, the Veteran's glioblastoma multiforme is not one of the recognized diseases presumed to be related to herbicide exposure, and thus, he is not entitled to a regulatory presumption of service connection. Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). On this question, the Board finds that the evidence supports the claim. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of glioblastoma multiforme. Post-service treatment records dated October 2015 to May 2016 document ongoing treatment for recurrent glioblastoma. A May 2016 physician letter provides a positive nexus opinion, stating that it is as likely as not that the Veteran's tumors developed as a result of his exposure to herbicides while serving in Vietnam. Subsequently, a May 2016 private medical opinion, by a different physician, Dr. Quinn, provides that the Veteran had a recurrent glioblastoma with no family history of central nervous system tumors, nor any history of exposure to toxins other than exposure to Agent Orange while serving in Vietnam, and "it is as possible as it is not that" the Veteran's glioblastoma was caused by Agent Orange exposure. See May 2016 Private Treatment Record. In October 2016 an independent medical evaluation (IME) was obtained by the Veteran with respect to the etiology of his glioblastoma. The examiner provided extensive research and references to scientific literature that linked Dioxin TCDD, the main dioxin in Agent Orange, to have caused various cancers, including glioblastoma multiforme. The examiner opined that it is more likely than not that there is a nexus between the Veteran's herbicide exposure during his active service and his diagnosed grade IV glioblastoma. The Board has weighed the evidence of record and while the claimed disability is not among the diseases for which service connection is presumed for those exposed to herbicides in service, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for glioblastoma multiforme is warranted. In making this determination, the Board notes that the conclusions described in the May 2016 and October 2016 medical opinions generally correspond with each other with respect to a link between the Veteran's disability and his active service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for glioblastoma multiforme have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C.A. 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Service connection for glioblastoma multiforme is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs