Citation Nr: 1702564 Decision Date: 01/31/17 Archive Date: 02/09/17 DOCKET NO. 09-24 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for brain cancer, to include as a result of in-service herbicide exposure, for accrued benefits purposes. 2. Entitlement to dependency and indemnity compensation based on service connection for the cause of the Veteran's death. 3. Entitlement to death pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant & Veteran's Daughter ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1969. The Veteran died in February 2008. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 and September 2008 rating decisions the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for brain cancer and denied service connection for cause of death respectively. In September 2016, the Appellant testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The record evidence shows that the Veteran's brain cancer was caused by herbicide exposure in service. 2. The record evidence shows that the Veteran's brain cancer was the cause of his death. 3. During the hearing, the appellant withdrew her claim of entitlement to death pension. CONCLUSIONS OF LAW 1. The criteria for service connection for accrued benefits purposes for brain cancer have been met. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000 (2016). 2. The criteria for establishing service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2016). 3. The criteria for withdrawal of the appeal of entitlement to death pension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2015); 38 C.F.R. §§ 20.202, 20.204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Appellant notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a) (2014); 38 C.F.R. § 3.159(b) (2016). In light of the favorable determination being reached in regards to the Appellant's claims, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. With respect to the Appellant's claim of entitlement to death pension, given her expression of intent to withdraw her appeal in that matter, further discussion of the impact of VA's duties to notify and assist is not necessary. Service Connection for Brain Cancer The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). As the evidence in this case is extremely voluminous, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, pursuant to 38 C.F.R. § 3.309, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, such as malignant tumor of the brain, become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. The Appellant contends that the Veteran's brain cancer was the result on in-service exposure to herbicides in service. As stated above, the first element of service connection is a current disability. The record is clear that the Veteran was diagnosed with glioblastoma in December 2005. See January 2007 Private Treatment Records. Thus, the issue that remains disputed is whether or not the Veteran's glioblastoma ("brain cancer') is related to service. Notably, although brain cancer is chronic condition under 38 C.F.R § 3.309(a), the evidence shows that the Veteran's brain cancer did not manifest to a degree if 10 percent or more within 1 year of separation. The Veteran was diagnosed with brain cancer in 2005 and separated from service in 1969. Thus the presumption does not attach. Similarly, 38 C.F.R. §3.307 provides for presumptive service connection for certain diseases associated with herbicide exposure. The Veteran's personnel records indicate that he had service in the Republic of Vietnam. Thus, herbicide exposure is presumed. However, the Veteran's brain cancer is not a disease for which the presumption of service connection attaches. Notwithstanding the presumptions, service connection for a disability claimed as due to exposure to herbicide exposure may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116 and 38 C.F.R. § 3.303. Here, in a January 2007 letter, private physician Dr. J.D. of the Dana-Farber Cancer Institute indicated that the Veteran was exposed to Agent Orange and Agent Orange is an agent known to cause cancer. "It is a possibility that [The Veteran's] Glioblastoma Multiforme was caused by his exposure to Agent Orange." Then, in a September 2016 letter, Dr. P.W. of the Dana-Farber Cancer Institute reported that the Veteran's brain cancer was at least as likely as not caused by Agent Orange exposure in service. The Board finds the opinions competent and probative to the question at hand. There is no competent lay or medical evidence of record indicating that the Veteran's brain cancer was not related to herbicide exposure in service. Therefore, resolving all reasonable doubt in the Appellant's favor, the Board finds that service connection for brain cancer for accrued benefits purposes, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted. Service Connection for Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. When any 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 disability that is causally related to service either caused, or contributed substantially or materially to the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. As the decision herein grants service connection for brain cancer and the Veteran's immediate cause of death is glioblastoma, service connection for cause of death is warranted. See April 2008 Death Certificate. Death Pension The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. During the September 2016 Board hearing, the Appellant withdrew her appeal concerning the issue of entitlement to death pension. Hence, there is no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed. ORDER Entitlement to service connection for brain cancer, to include as a result of in-service herbicide exposure, for accrued benefits purposes is granted. Entitlement to dependency and indemnity compensation based upon service connection for the cause of the Veteran's death is granted. The appeal issue of entitlement to death pension is dismissed. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs