Citation Nr: 18144964 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-35 254A DATE: October 25, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for the cause of the Veteran’s death is reopened, and service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. In a December 2007 rating decision, service connection for the cause of the Veteran’s was denied; the appellant initiated an appeal of this decision, but did not file a timely substantive appeal. 2. Additional evidence associated received since the December 2007 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death. 3. The immediate cause of the Veteran’s death was respiratory failure due to glioblastoma multiforme (brain tumor). 4. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicide agents. 5. The Veteran was not service-connected for any disabilities at the time of his death. 6. The evidence establishes that the Veteran’s terminal brain tumor (glioblastoma multiforme) was caused by his presumed in-service herbicide exposure, which in turn, caused the Veteran's death. CONCLUSIONS OF LAW 1. The December 2007 rating decision, which denied the appellant's claim of service connection for the cause of the Veteran's death, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 2. New and material evidence has been received since the December 2007 rating decision, and the claim for entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of a Veteran who served on active duty from August 1966 to May 1968. The Veteran died in June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which denied entitlement to service connection for the Veteran’s cause of death. 1. New and material evidence to reopen the claim of entitlement to service connection for the cause of the Veteran’s death The appellant seeks to reopen the previously denied claim for service connection for the cause of the Veteran’s death. In a December 2007 rating decision, the appellant’s claim was denied. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160 (d), 20.302, 20.1103. The appellant initiated an appeal of that determination in December 2007 by filing a notice of disagreement. A statement of the case was issued to her in August 2009. However, while she did submit a substantive appeal, it was not received until November 2010, and thus, was untimely. The December 2007 decision is final. The claim of service connection for the cause of the Veteran's death may be reopened if new and material evidence is received. See 38 C.F.R. § 3.156 (a); Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence at the time of the prior denial consisted of service records, treatment records, the Veteran’s death certificate, lay statements, and a private medical opinion. The agency of original jurisdiction denied the claim on the basis that the Veteran’s service medical records were negative for evidence of the fatal disease process; that glioblastoma multiforme was not an Agent Orange presumptive disorder; and that the two letters from a private physician were somewhat contradictory and essentially speculative regarding a nexus between the Veteran death and his service including his presumed exposure to Agent Orange. In connection with the current claim, additional evidence has been received. This evidence includes a medical opinion from an oncologist addressing the relationship between the Veteran’s death and his exposure to Agent Orange. The Board finds the evidence submitted since December 2007 is new, in that it has not been submitted previously to agency adjudicators, and is material, in that it relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death. Because new and material evidence has been received, the Board finds that the previously denied claim of service connection for the cause of the Veteran's death is reopened. 2. Entitlement to service connection for the cause of the Veteran’s death Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A Veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307 (d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309 (e). Glioblastoma multiforme (brain cancer) is not a condition which VA presumes as due to Agent Orange exposure; however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). In making all determinations, the Board must fully consider the lay assertions of record. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus in some instances. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (2012). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, the Veteran died in June 2007. The death certificate reflects that the immediate cause of death was respiratory failure due to glioblastoma multiforme. The Veteran was not service-connected for any disabilities at the time of his death. The appellant contends that service connection for the cause of the Veteran’s death is warranted on the basis that the Veteran was exposed to Agent Orange which led to the fatal disease process. The June 2007 death certificate, which indicates that the Veteran died from respiratory failure due to glioblastoma multiforme, also notes that he died at Grace Plaza Nursing Home, and an autopsy was not performed. Service treatment records do not show that the Veteran was diagnosed with glioblastoma multiforme during military service. Post-service treatment records indicate the Veteran was diagnosed with and treated for a brain tumor beginning in 2006, more than 30 years after his military service. The appellant submitted private medical statements from Dr. R. A., dated November 2008. Dr. R. A. opined that the Veteran’s brain cancer was as likely as not caused by Agent Orange. In one statement, Dr. R. A. stated that it was not possible to say with any certainty what the cause of the Veteran’s glioblastoma was and that they often arise sporadically. Dr. R. A. further provided that he did not know with certainty if Agent Orange was the cause of the Veteran’s tumor and that at the time, no other cause of the tumor had been identified. In another statement, Dr. R. A. stated that the available data at the time was from epidemiological studies, which neither proved a causal relationship or refuted one. He further stated that it could only be said that the relationship of Agent Orange to glioblastoma multiforme is uncertain and that future work would help to clarify if it has a role. The appellant submitted a private medical opinion from Dr. M. K., dated May 2018. Dr. M. K. opined that it is more likely than not that the Veteran’s herbicide exposure caused or aggravated his risk for glioblastoma, and as such caused or substantially contributed to his death. Dr. M. K. provided that while brain tumors are not currently officially-accepted Agent Orange associated cancers, there is adequate published laboratory science and epidemiologic data linking Agent Orange or dioxins to glioblastoma. The current VA policy may not reflect the most recent data. In addition, Dr. M. K. noted that there is no rationale to attribute the Veteran’s glioblastoma to social or familial risk factors. Dr. M. K. provided extensive discussion in his report on herbicides and glioblastoma multiforme; other risks factors; and the timing of cancer pathogenesis. On review of the record, the Board finds the May 2018 private medical opinion to be competent and credible. The Board finds that, based on the May 2018 private examiner’s opinion that the Veteran’s exposure to Agent Orange while serving in Vietnam contributed to his development of glioblastoma multiforme, the evidence supports a finding that the Veteran’s fatal brain cancer was due to or the result of exposure to Agent Orange. (Continued on the next page)   Based on the foregoing, the Board finds that the evidence establishes that the Veteran’s glioblastoma multiforme is related to the Veteran’s military service, specifically his exposure to Agent Orange while serving in Vietnam. Therefore, service connection for the cause of the Veteran’s death is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel