Citation Nr: 1700255 Decision Date: 01/05/17 Archive Date: 01/13/17 DOCKET NO. 07-24 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. He died in September 2006, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 2009, a hearing was held before a Veterans Law Judge (VLJ), who is no longer employed at the Board (the appellant was offered a new hearing before a VLJ who would ultimately decide her claim, but in September 2014 she declined another hearing). An October 2009 Board decision denied service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a March 2011 Memorandum Decision, vacated the Board's decision and remanded the case to the Board for further readjudication consistent with its decision. In February 2012, the Board remanded the case to the RO for additional development (to obtain a VA medical opinion). The case was thereafter returned to the Board. A December 2012 Board decision denied service connection for the cause of the Veteran's death, and the appellant appealed that decision to the Court. In July 2013, the parties - the appellant and the legal representative of the VA, the Office of the General Counsel - filed a Joint Motion for Remand to vacate the Board's decision and to remand the case to the Board. A July 2013 Court Order granted the Joint Motion. In December 2013, the Board remanded the case to the RO for additional development (for another VA medical opinion). The case was subsequently returned to the Board. Because the medical questions underlying the matter in this case were still not resolved and/or clarification of medical opinion evidence was needed, the Board, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, sought on multiple attempts a medical expert opinion from the Veterans Health Administration (VHA). Opinions were received by the Board in January 2016, July 2016, and October 2016. FINDINGS OF FACT 1. The Veteran's military service from August 1969 to August 1971 included a tour of duty in the Republic of Vietnam, and he is presumed to have been exposed to herbicides therein. 2. The Veteran died in September 2006; the immediate cause of death was glioblastoma multiforme (GBM); other significant conditions contributing to his death were hemorrhagic stroke and pulmonary edema. 3. Competent medical evidence shows that the Veteran's fatal GBM was, more likely than not, etiologically related to his exposure to herbicides in service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the benefit sought is being granted, further discussion of the VCAA is not necessary. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases (to include malignant tumors of the brain) may be presumed to have been incurred or aggravated in service if manifested within a specified period of time (one year for malignant brain tumors) after discharge from active duty. 38 U.S.C.A. § 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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." 38 C.F.R. § 3.303(b). Where a condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Certain listed chronic diseases associated with exposure to herbicide agents (Agent Orange) may be service connected on a presumptive basis as due to exposure to herbicides. A veteran who served in Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. GBM is not among the enumerated diseases for which the presumption of service connection for Agent Orange-exposed veterans applies. Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When a veteran dies from a service-connected disability, the veteran's surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability, which is causally related to service, was either the principal or a contributory cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to constitute a principal cause of death, it must be shown to be the primary cause of death when such disability, singly 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). Factual Background The appellant contends that the Veteran's fatal cancer was etiologically/causally linked to his exposure to tactical herbicide agents (such as Agent Orange) during his military service in Vietnam. The Veteran served on active duty from August 1969 to August 1971, and his discharge document (DD Form 214) indicates that he served in the Republic of Vietnam. His service treatment records do not show any relevant treatment. The Veteran's June 1971 service separation examination report is silent for glioblastoma. Postservice medical records consist of private treatment reports dated in 2006, showing that the Veteran initially sought treatment for no more than a two-week history of headaches, although he had a "distant past" history of migraines. He was also noted to have spotted vision, and difficulty reading and "finding words." His spouse reported a three-to-four-month history of "subtle findings." There are also notations of dysphagia, of unspecified duration. The reports note a history of smoking as a teenager, which changed to pipe-smoking later in life, and that he quit smoking altogether ten years previously. Following evaluation, the diagnosis was brain tumor, also characterized as glioblastoma multiforme (GBM). The Veteran died in September 2006, and his death certificate lists the cause of death as GBM of about two months' duration. Other significant conditions contributing to his death were hemorrhagic stroke and pulmonary edema. An autopsy was not performed. At the time of his death, service connection was not in effect for any disabilities. An October 2009 Board decision denied service connection for the cause of the Veteran's death. An ensuing appeal to the Court by the appellant resulted in the Court vacating the Board's decision and remanding it to the Board for its application of the correct standard to determine whether there was a duty to assist the appellant in obtaining a medical opinion to address the issue presented in this case. Subsequently, the appellant provided several articles, letters, and studies indicating that there is a relationship between exposure to herbicides and brain cancer. In March 2012, a VA opinion was obtained from a VA physician who indicated that the Veteran's claims file had been reviewed. The physician opined that the Veteran's GBM was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He explained that the GBM was the appropriate diagnosis of the brain tumor listed on the death certificate and that all of the clinical evidence was consistent with such diagnosis. He concluded that it was at least as likely as not that the Veteran's stroke and pulmonary edema had materially contributed to his death. He explained that there was no clinical association of stroke and/or pulmonary edema to Agent Orange, that GBM was a rare tumor, and that available data regarding an association between GBM and Agent Orange were limited, had various results, and were often inconclusive. He found that the overall evidence did not support a consistent causal link of Agent Orange to brain cancer and GBM, and thus he believed it was not at least as likely as not that the GBM, or the stroke or pulmonary disorder, was due to exposure to herbicides/Agent Orange in Vietnam or in any way related to the Veteran's service. A December 2012 Board decision again denied service connection for the cause of the Veteran's death. Another appeal to the Court by the appellant ensued, and following a July 2013 Joint Motion and Court Order, the Board was tasked with taking appropriate steps to ensure that the record includes an adequate medical opinion addressing the key question of whether the Veteran's fatal GBM was etiologically/causally linked to his in-service exposure to tactical herbicides. The July 2013 Joint Motion in particular observed that the December 2012 Board decision had improperly relied on a March 2012 VA opinion which "itself relied exclusively on statistical information to conclude that the Veteran's brain tumor is not related to his military service, contains exactly the type of reasoning that was prohibited in [Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009)]." The July 2013 Joint Motion further indicated that the Board should obtain a medical opinion, by an oncologist, as to "whether it is at least as likely as not that the Veteran's in-service exposure to Agent Orange caused or contributed to the development of his brain tumor." A medical opinion by a nurse practitioner was received in March 2014, and concluded: "Risk factors for glioblastoma, as well as other types of brain tumors, are largely unknown. An association to agent orange would be based on speculation." As the opinion was not by an oncologist, as requested by the Board, another opinion was sought. An April 2014 medical opinion was then received from a physician (an ambulatory care specialist), who had previously authored the March 2012 unfavorable opinion that was found to be inadequate by the Joint Motion). He indicated that he had reconsidered his prior negative opinion and now concluded: "there is insufficient evidence to be causally related to AO. Thus there is a 50% chance that AO does not cause brain tumor and 50% chance it may cause brain tumor." Notably, the April 2014 opinion was not by an oncologist, as requested by the Board; thus, yet another opinion was sought. A June 2014 medical opinion, apparently prepared by a VA primary care physician in consultation with a Section Chief of Hematology and Oncology at a VA medical facility, essentially concludes: "herbicides, such as Agent Orange, have not been shown to cause or materially contribute to the development of glioblastoma multiforme, based on his [the oncologist's] knowledge and his review of the main stream medical research literature." In response to this unfavorable VA opinion, the Veteran's attorney submitted an April 2015 private medical opinion from a medical corporation. The private opinion has two signatories (without clarity as to the primary author), and it concludes that "it is more likely than not that [the Veteran]'s herbicide exposure caused or aggravated his risk [emphasis added] for glioblastoma." In July 2015, the Board requested that a VHA medical expert review the Veteran's claims file, including the various medical opinions therein, and provide an advisory opinion addressing the essential questions. The resulting January 2016 VHA medical opinion concluded that the Veteran's glioblastoma was "likely not due to Agent Orange." The January 2016 VHA opinion presents a rationale with three factual elements. The first of these is that the VHA expert cited his understanding that the Institute of Medicine (IOM) has "concluded in their review that brain cancers were in the group of tumors where the evidence indicated there was no association with Agent Orange." In April 2016, the appellant's attorney submitted a response to the VHA opinion, together with supporting comments by a private medical opinion provider dated in March 2016. It was pointed out that the VHA expert relied upon outdated and incorrect information as part of its analysis, noting that "[t]he Institute of Medicine upgraded this cancer several years ago from one with 'no association' to one with 'inadequate or insufficient' evidence concerning the association. This distinction is vitally important, as it signifies that there is some evidence suggesting an association, but that the IOM is 'unwilling to draw a firm positive conclusion' at the present time." The private medical opinion in March 2016 further explained that the VHA expert had attributed to IOM a finding that was no longer the IOM's official finding on the matter: "The IOM actually states that there is 'inadequate or insufficient evidence' linking AO to brain cancers. This statement meant that IOM was unwilling to draw a firm positive conclusion. IOM's standard for recognizing association of diseases with AO is excessively conservative...." The private provider continued: "Simply relying on IOM's conclusions is not providing an opinion but relying on some else's instead." The information indicating that the January 2016 VHA expert relied upon an inaccurate factual predicate in citing an out-of-date IOM finding that has since been revised suggested that the January 2016 VHA expert's opinion was inadequate to support informed appellate review of this claim. The March 2016 private medical provider's letter also pointed out that another of the January 2016 VHA expert's reasons and bases appeared to confuse references to "herbicides" and references to "pesticides." Further, the private provider stated that the VHA expert's discussion of the predominant types of mutations seen in pertinent tumors did not address that "the majority of tumors sequenced for the studies were unlikely to be from herbicide- or AO-exposed individuals," and that the VHA expert "does not take into account the known mechanism of AO carcinogenesis, which is interaction with the aryl hydrocarbon receptor ... which has pleiotropic carcinogenic effects on cells." In light of the foregoing concerns, the Board sought a new VHA opinion in May 2016. A VHA medical opinion by a neurological-pathologist was received in July 2016. In response to what was the likely etiology for the Veteran's GBM, the expert provided a general response, stating that the cause of GBMs was not known but that a higher incidence of such tumors has been described in individuals with certain chromosomal abnormalities and that other risk factors have been identified in particular ionizing radiation exposure. There was no explanation as to whether such risk factors were found in the Veteran. The VHA expert indicated that he used a common internet search engine to determine whether there was any evidence of a link between exposure to herbicides and the development of brain tumors, and found none. (He did not comment on the April 2015 private medical opinion which cited to several medical studies and reports for the proposition that there was "strong laboratory evidence that supports dioxin-based causation of GBM.") He concluded that he was unable to support an association between Agent Orange exposure and the development of the Veteran's fatal GBM. The Board subsequently requested an addendum clarifying opinion, but was advised that the July 2016 VHA opinion was felt to have been responsive to the Board's request, and that the provider would not be asked to comment on earlier medical opinions of record, as requested. Given the unacceptable response from the July 2016 VHA medical expert, the Board sought a new VHA advisory medical opinion to reconcile the various conflicting medical opinions of record. In an August 2016 request, the Board requested that a VHA medical expert review the Veteran's claims file, including the various medical opinions therein, and respond to the following: What is the likely etiology for the Veteran's glioblastoma? Specifically, is it at least as likely as not (a 50 % or greater probability) that his exposure to Agent Orange in service caused or contributed to the development of the brain tumor? Please discuss the etiological factors for the Veteran's glioblastoma, and the extent to which tactical herbicide (such as Agent Orange) exposure is considered an etiological factor for glioblastoma. The consulting expert is asked to explain the rationale for all opinions given, to specifically include comment on any pertinent elements of the medical opinions that are already in the record, expressing agreement or disagreement and explaining the rationale for the agreement or disagreement. The consulting expert is asked to note the concerns presented in the April 2016 opinion from a private provider, including the assertion that the January 2016 VHA expert opinion was incorrect in stating that the National Institutes of Health's Institute of Medicine classifies glioblastoma multiforme as having no association with Agent Orange. To ensure compliance with the Joint Motion and Court Order, the consulting expert is asked to provide rationale that does not rely entirely upon statistical data. In a medical opinion dated in October 2016, a VHA expert (a neuropathologist) reviewed the entire claims file, including the medical literature/studies cited therein, and noted the Veteran's medical history, remarking that multiple medical experts have reviewed the case with resulting conflicting opinions, which reflected "the paucity of data available on this issue." He acknowledged the consensus by a brain tumor epidemiology consortium that environmental agents other than ionizing radiation had not been conclusively associated with brain tumor risk, as well as the IOM study of 2010 that there was inadequate or insufficient evidence to determine an association between brain cancer and herbicide exposure. He noted that there were in fact epidemiological studies that linked herbicide exposure and glioma, but they were conflicting. He cited to three studies in particular, and stated that "the overall weight of the available studies leans towards a positive association between herbicide exposure and development of glioma." He noted that there was a general consensus among the IOM and others that there is a "biological plausibility that herbicides could contribute to the development of glioblastoma." He also noted general statistics about glioblastomas, in terms of frequency, the age at which they develop in an individual, and the location in the brain where they most frequently develop. He noted that many genetic alterations are known to occur in glioblastoma and it could be associated with inherited tumor syndromes, but he found it unlikely the Veteran suffered from such a syndrome in light of his family history. In his conclusion, the VHA expert noted that overall the Veteran did not have any known risk factors such as genetic mutation or ionizing radiation for developing GBM other than his Agent Orange exposure in Vietnam. He opined that with the Veteran's history and the available evidence, "the probability that this Veteran's glioblastoma is due to his exposure to Agent Orange is greater than 50%." Analysis The appellant maintains that the Veteran's fatal brain cancer was causally linked to his exposure to herbicides during his Vietnam service. On the basis of the STRs alone, GBM is not shown to have had onset during service. There is likewise no showing of continuity of GBM symptomatology after service, nor is it so alleged. Furthermore, the documentation of GBM, decades after the Veterans separation from service, is well beyond the one year presumptive period for malignant brain tumors as a chronic disease under 38 U.S.C.A. § 1112. Hence, service connection for GBM on the basis that it became manifest in service (with continuity of symptoms thereafter), or on a chronic disease presumptive basis is not warranted. The analysis turns to whether the Veteran's fatal brain tumor, first documented years after service, is attributable to his exposure to herbicides in Vietnam. The Veteran is presumed to have been exposed to herbicides by virtue of his service in Vietnam. 38 U.S.C.A. § 1116(f). GBM, however, is not listed as a disease recognized by VA as presumed to have association with such exposure. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The appellant may nonetheless substantiate her claim by affirmative evidence that exposure to herbicides caused or contributed to the development of the Veteran's fatal GBM. See 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). This case has had a long and complex procedural history and has been in appellate status for an extended period of time, in large part due to the conflicting and inadequate medical opinions from both private and VA examiners regarding whether there is a link between the Veteran's exposure to herbicide and his development of GBM. As was noted above there is uncertainty in the medical community on this medical issue, and the current official stance of the IOM is that there is "inadequate or insufficient evidence" of a linkage between Agent Orange exposure and brain cancers. In the words of the VHA expert in October 2016, while there was "biological plausibility" of a causal connection between herbicides and the development of glioblastoma within the medical community, there was not a general consensus of a conclusive association. The VHA expert in October 2016 was asked to consider the various and divergent medical opinions of record and provide an opinion on the likely etiology for the Veteran's glioblastoma. He found that "the overall weight" of pertinent studies "leans towards a positive association," and commented upon general statistics relative to glioblastomas as they were applicable to the Veteran and any risk factors he may have had. With reference to significant facts in the record, the expert provided compelling rationale to support the conclusion that the probability of the Veteran's fatal GBM having been attributable to his Agent Orange exposure was higher than 50 percent. In view of the foregoing, there is satisfactory proof to support the appellant's claim that the Veteran's fatal GBM was etiologically related to his presumed exposure to herbicides in Vietnam. Accordingly, service connection for the cause of the Veteran's death is warranted. ORDER The appeal seeking service connection for the cause of the Veteran's death is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs