Citation Nr: 1757576	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  14-15 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for a brain tumor, diagnosed as glioblastoma, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The appellant and her daughter


ATTORNEY FOR THE BOARD

J. Smith-Jennings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1970 to August 1976 with subsequent service in the Army National Guard.  He died on April [REDACTED], 2013.  The appellant is the Veteran's surviving spouse and she has been found to be eligible as the substituted claimant in the Veteran's appeal.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2017.  A transcript of the hearing is of record.


FINDING OF FACT

The competent evidence of record indicates that the Veteran's brain tumor, diagnosed as glioblastoma, was at least as likely as not caused by his in-service exposure to herbicides.


CONCLUSION OF LAW

The criteria for service connection for a brain tumor, diagnosed as glioblastoma, are met.  38 U.S.C. § 1101, 1110, 1112, 1116, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant contends that the Veteran developed glioblastoma as a result of his exposure to herbicides, including Agent Orange, during service.

Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as brain tumors.  See 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); see also 38 U.S.C. §§ 1101 (3) (2012).  First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service.  38C.F.R. § 3.303 (b).  In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service.  38 U.S.C. §§ 1112 (a)(1), 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2017).  The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted.

In addition, a veteran who, during active service, served in 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, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017).  If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309 (e), if the disability manifested to a degree of 10 percent or more at any time after service.  See 38 C.F.R. § 3.307 (a)(6)(ii).

As an initial matter, although a brain tumor is a chronic condition under 38 C.F.R § 3.309 (a), the evidence shows that the Veteran's brain tumor/glioblastoma did not manifest to a degree of 10 percent or more within 1 year of separation.  The Veteran was diagnosed with a brain tumor/glioblastoma in early 2012 and separated from service in December 2003, retiring from the Army National Guard.  Thus, the presumption does not attach.

Also, brain cancers, including glioblastoma, are not included among the list of diseases presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.309 (e).  However, a Veteran is not precluded from establishing the necessary linkage for service connection with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In this regard, a review of the claims file shows that the Veteran served in the Republic of Vietnam during the period when herbicide agent use occurred.  As such, he is presumed to have been exposed to herbicide agents.  As previously mentioned, the Veteran was diagnosed with a brain tumor/glioblastoma in early 2012.  Thus, the first two elements of service connection are met and the remaining inquiry is whether the Veteran's brain tumor/glioblastoma is related to service.

In support of the claim, the Veteran submitted a December 6, 2012 opinion from his private radiation oncologist, Dr. Kevin E. Sanders (Dr. Sanders).  Dr. Sanders opined that while it cannot be proven that the Veteran's military exposure resulted in his malignancy, it is reasonable to assume that it did play a part in his development of glioblastoma.  Dr. Sanders reasoned that Agent Orange is a known carcinogen and if it is linked to the formation of one cancer, it would be reasonable to assume that it can increase the risk of other forms of malignancy.  Dr. Sanders further reasoned that it is also rather a coincidence that the Veteran developed prostate cancer in the past and then developed glioblastoma multiforme.  Glioblastoma multiformes are very rare tumors and the fact that the Veteran has developed two malignancies is even more coincidental.

Other evidence of record includes a statement written by Eric Griffin, Ph.D., a scientist employed by Smithsonian's environmental research center.  In this statement, Dr. Griffin discusses the known carcinogenic effects of Agent Orange, including specifically on the brain, and concludes, generally, that it is at least as likely as not that cancer development among veterans who served in the Vietnam War may be attributed to Agent Orange exposure.  

The Board finds Dr. Sander's opinion concluding that it is at least as likely as not that the Veteran's glioblastoma is related to Agent Orange exposure in service, in combination with the other medical evidence discussing the known carcinogenic effects of Agent Orange on the brain, to be competent and probative to the question at hand.  Dr. Sander's opinion was offered in connection with the doctor's history of treating the Veteran, indicating familiarity with the Veteran's condition, and the doctor provided an adequate rationale for his conclusion.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Significantly, there is no competent lay or medical evidence of record indicating that the Veteran's glioblastoma is not related to herbicide exposure in service.  Therefore, resolving all reasonable doubt in the Appellant's favor, the Board finds that service connection for a brain tumor, diagnosed as glioblastoma, is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The appeal is granted.


ORDER

Service connection for a brain tumor, diagnosed as glioblastoma, to include as secondary to herbicide exposure, is granted.



____________________________________________
S.C KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs