Citation Nr: 1756710 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-08 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carlos Garcia, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1966 to May 1969; he served in Vietnam and was awarded the Purple Heart Medal. The Veteran subsequently served on active duty in the Army from May 1969 to October 1972 and from February 1977 to August 1988. The Veteran died in April 2010. The appellant is seeking benefits as the Veteran's surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The Board remanded the case for additional development in April 2014. The case was returned to the Board for appellate review and remanded again in June 2015 for additional development. The claim has now returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's death certificate shows he died in April 2010 at the age of 61. Glioblastoma multiforme was listed as the immediate cause of death. 2. Service connection was established for a right ankle condition in September 1988. 3. The cause of the Veteran's death did not have its onset in service, is not otherwise the result of a disease or injury incurred in service, and was not incurred within one year of active service. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits as established by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim of service connection for cause of death, VCAA notice must include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a Dependency and Indemnity Compensation (DIC) claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The duty to notify was satisfied in a July 2010 letter to the appellant outlining all three above requirements. Furthermore, the appellant had the opportunity to allege that notice in this case was less than adequate and she has not done so. Goodwin v. Peake, 22 Vet. App. 128 (2008). With respect to VA's duty to assist, the Veteran's service treatment records (STRs), private medical records, and personnel records have been associated with the claims file, as have the Veteran's outpatient medical records from the Martin Army Community Hospital. As the Board will discuss in its analysis, a medical opinion was obtained in August 2016. This report reflects that the examiner reviewed the Veteran's medical history and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proferred. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board therefore concludes that the opinion is adequate for adjudication purposes. See 38 C.F.R. § 4.2. The appellant and her representative have not contended otherwise. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Appellate review may proceed without prejudice to the appellant. II. Law and Analysis The appellant is seeking DIC benefits. Such benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In this case, the appellant contends that the Veteran's death was related to in-service exposure to herbicide agents in Vietnam. The appellant also claims that the Veteran's death was related to an in-service head trauma. See appellant's October 2014 Statement in Support of Claim. To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection will be presumed for certain chronic diseases, such as brain tumors, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2017). Presumptive service connection for chronic diseases must be considered on three bases: chronicity during service, manifestations within one year of the Veteran's separation from service, and continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection will also be presumed for diseases associated with exposure to certain herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered as having been incurred in service if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's death certificate lists glioblastoma multiforme as his immediate cause of death. The Veteran was diagnosed with glioblastoma multiforme in December 2008. See, e.g., November 2010 private medical treatment records. It is undisputed that the Veteran is entitled to the presumption that he was exposed to herbicides, since he served on the landmass of Vietnam during the recognized dates of the Vietnam War. However, because glioblastoma multiforme is not a disease listed in 38 C.F.R. § 3.309(e) nor is it defined as a cancer for purposes of meeting the requirement, the Board concludes that the Veteran's cause of death cannot be presumed to be associated with herbicide agent exposure and hence his cause of death cannot be service connected on this basis. Although the Board finds that glioblastoma multiforme is not a disease which may be presumed to be associated with herbicide agent exposure, it must still consider other theories of entitlement, such as presumptive service connection for certain chronic diseases. It is undisputed that glioblastoma multiforme is a brain tumor, which is listed as a chronic disease under 38 C.F.R. § 3.309(a). However, the record is silent as to any relevant evidence that the Veteran's disease was shown as chronic in service, other than isolated symptoms of headaches and associated gastrointestinal problems that resulted from a head trauma incurred in-service. See September 1968 STRs. Additionally, the record is silent for any evidence showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation. Finally, no evidence of such disease was noted in the Veteran's STRs with continuity of symptomotology as there were no symptoms or manifestations of the disease until many years later. Therefore, presumptive service connection based on a chronic disease is not warranted. With regard to direct service connection, the Veteran's cause of death satisfies the first element of current disability. The Veteran's personnel records note shrapnel wounds in the upper body, face, shoulder, and neck incurred during service. His STRs also document a head trauma involving hitting a steel beam incurred in 1968. See September 1968 STRs. In August 2016, VA obtained a medical opinion as to whether the Veteran's glioblastoma multiforme was incurred in or caused by service. After reviewing the claims file, the examiner stated that medical literature does not provide evidence that head trauma or any herbicide agent or other chemical exposure predisposes the development of glioblastoma multiforme. The examiner provided other suggested causes and specifically noted the private medical opinion submitted by Dr. A. Based on these findings, and the fact that there was no evidence of glioblastoma multiforme until many years after discharge, the examiner opined that the Veteran's glioblastoma multiforme was not due to the Veteran's in-service herbicide agent exposure or head trauma and related injuries. The Board has considered the statements made by the appellant and her representative that the Veteran's head trauma and herbicide exposure caused or contributed to his death. However, because the record does not indicate that these individuals have the specialized knowledge to attribute his glioblastoma multiforme to a specific incident of service, to include his head trauma injuries and herbicide exposure, the Board finds that these opinions are outweighed by the VA examiner's opinion. This is because the etiology of glioblastoma multiforme is a complex medical decision that requires expertise to determine, unlike disorders such as flat feet, varicose veins, and ringing in the ears which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). VA examiners have specialized medical knowledge to make such determinations. While the Board is sympathetic to the appellant's contentions, in the final analysis, the Board finds that the preponderance of the evidence is against her claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). As such, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The appellant's claim of entitlement to service connection for the cause of the Veteran's death is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs