Citation Nr: 18145175 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-34 106 DATE: October 26, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. Entitlement to service connection for glioblastoma multiforme stage 4 (brain tumor), as due to herbicide exposure, on the basis of substitution, is denied. FINDINGS OF FACT 1. The Veteran died on December [redacted], 2015; the sole listed cause of his death was glioblastoma multiforme. 2. Glioblastoma multiforme was not first manifested on active duty or during any applicable presumptive period, and is not otherwise shown to be related to military service, to include his herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). 2. The criteria for service connection of glioblastoma multiforme, due to agent orange exposure, on an accrued basis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from September 1969 to February 1972. Regrettably, the Veteran passed away on December [redacted], 2015. 1. Entitlement to service connection for the cause of the Veteran’s death. 2. Entitlement to service connection for glioblastoma multiforme, for accrued benefits purposes. The Veteran filed claims of service connection for his brain tumor and peripheral neuropathy prior to his death. The appellant’s subsequent claim for Dependency and Indemnity Compensation (DIC) is also considered a request to substitute for the Veteran in order to pursue his claims to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Although the record does not reflect formal notice was provided the claimant, VA does appear to have determined substitution was warranted, and the appeal with regard to the brain tumor has been pursued on that basis; the claimant did not elect to perfect an appeal with regard to the neuropathy. The claimant is represented, and has continued to submit new evidence and argument. Accordingly, she will not be prejudiced by proceeding in the absence of a formal letter informing her of her status; actual knowledge is shown. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The appellant contends that the Veteran’s brain tumor was the result of his in-service exposure to tactical herbicides in Vietnam, and that his death was then caused by this same tumor. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312. The diagnosis of glioblastoma multiforme is well established in the record, as is the fact that this brain tumor was the cause of his death. Additionally, as the record shows the Veteran had distinguished service in Vietnam as a helicopter pilot. His exposure to herbicides is therefore presumed. 38 C.F.R. § 3.307. The sole question for the Board, applicable to both the compensation and DIC claims, is whether a nexus exists between the brain tumor and service, to include the exposure to tactical herbicides. A nexus between disease and herbicide exposure is presumed for certain listed conditions, which include a number of cancers. 38 C.F.R. § 3.309(e). Glioblastoma multiforme is not listed. The appellant has argued that this cancer is included under the general heading of soft tissue sarcomas. Unfortunately she is not competent to categorize and sort cancer types, as she is a layperson lacking the necessary training and knowledge to do so. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). No medical professional has supported her position; the November 2016 VA examiner in fact specifically found that the brain tumor did not fall within the listed conditions. Service connection via the herbicide presumption is therefore not available. The appellant may still establish a nexus on a factual basis, however. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). She has offered a copy of a Board decision granting service connection for a brain tumor due to herbicide exposure in her attempt to do so. Board decisions, however, have no precedential value; they are each dependent on the specific facts and circumstances facing the particular claimant involved. 38 C.F.R. § 20.1303. The Veteran’s private oncologist opined in September 2016 that given the link of herbicides to “at least three types of cancer,” “it is entirely possible that [the Veteran’s] exposure to agent orange during his military service contributed to the development of his brain cancer and subsequently his death….” VA asked him for clarification of his opinion in October 2016, and he stated that agent orange is a carcinogen, and exposure to such increases the likelihood of developing cancer, including glioblastoma multiforme. Therefore, “exposure to agent orange probably contributed to the Veteran’s glioblastoma multiforme.” In a November 2016 review of the claims file, a VA doctor noted the private doctor’s opinion, the prior Board decision and studies noted therein, and statements from the American Cancer Society and an occupational medicine journal in opining that it was less likely than not that there was a causal relationship between herbicide exposure and the Veteran’s brain cancer. She reasoned that current medical evidence was inconclusive regarding whether herbicides was a risk factor for glioblastoma multiforme. There was a genetic factor, and while dioxins were a known carcinogen, not all tissues reacted the same way. In other words, just because agent orange was toxic to some tissues, it was not toxic to all tissues. The VA examiner also noted that the Veteran had worked in the flooring industry, as a store owner. He would have been exposed to chemicals in such a setting that would also be considered carcinogens, and risk factors for brain tumors, though data on that was also still inconclusive. In the final analysis, she determined that current medical literature did not support a positive opinion. The Board finds that the negative VA opinion outweighs the positive private medical opinion. It is based in and considers current medical knowledge specific to the type of cancer at issue here. It considers all factors in this Veteran’s history. The private opinion’s reliance on false equivalencies among all tissues and carcinogens and broad generalities is not worthy of any probative weight. Accordingly, the preponderance of the evidence is against the claims; there is no doubt to be resolved. Service connection for glioblastoma multiforme for compensation purposes and as the cause of the Veteran’s death is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel