Citation Nr: 18156766 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-42 777 DATE: December 11, 2018 ORDER Service connection for cause of death, specifically glioblastoma of the brain, due to exposure to Agent Orange in Vietnam is granted. FINDING OF FACT 1. According to the death certificate of record, the Veteran died of neoplasm glioblastoma in April 2015. 2. The Veteran served in the Republic of Vietnam between April 1968 and April 1969, and he is presumed to have been exposed to herbicides in service. 3. The Veteran’s glioblastoma was causally related to his exposure to herbicides in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. § 1110, 1131, 1310, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. At the time of his death, the Veteran had a pending appeal for entitlement to service connection for glioblastoma due to Agent Orange exposure. See VA 21-526EZ April 2015. Among other decorations and accolades, the Veteran received the Purple Heart, Vietnam Service Medal, Vietnam Campaign Medal, and Combat Infantry Badge. He died in April 2015. The Appellant is the Veteran’s surviving spouse. To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). Unlike with accrued benefits claims, all evidence of record, including that added to the file after the Veteran’s death, may be considered. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran’s death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (b)-(c). A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (d). Further, a Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). To benefit from the presumption of service connection for diseases associated with herbicide agent exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309 (e). However, diseases not enumerated in said regulation do not preclude service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Service connection for cause of death, specifically glioblastoma of the brain, due to exposure to Agent Orange in Vietnam is granted. The appellant seeks entitlement to service connection for cause of death due to the Veteran’s herbicide exposure. The Veteran’s death certificate shows he died in April 2015 of neoplasm glioblastoma. At the time of his death, the Veteran was service connected for PTSD, rated 50 percent disabling; neuropathy, right leg, branches of peroneal nerve and damage to muscle group XII, rated 20 percent disabling; bilateral hearing loss, rated 10 percent disabling; bilateral tinnitus, rated 10 percent disabling; scar associated with neuropathy, right leg, branches of peroneal nerve and damage to muscle group XII, rated 0 percent disabling, none of which substantially contributed to the Veteran’s cause of death. The Veteran served in Vietnam, and his duties included rifleman and machine gunner. He received the Purple Heart, Vietnam Campaign Medal, Bronze Star Medal, Vietnam Service Medal, and the Combat Infantry Badge. See Military Personnel Record. The Veteran was awarded a Bronze Star Medal with V device for heroism in connection with military operations against an armed hostile force in Vietnam. See Military Personnel Records. He is therefore presumed to have been exposed to herbicide agents, including Agent Orange, while serving in Vietnam. However, his fatal glioblastoma is not recognized as a presumptive disability due to exposure to herbicides under 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Nevertheless, this fact does not preclude a finding that direct exposure to Agent Orange either caused or contributed substantially or materially to the cause of death by glioblastoma multiforme. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran’s service treatment records show no treatment or a diagnosis related to glioblastoma. Rather, this disability is shown in medical records years after service, in 2015. Regarding evidence relating this post-service disability to service, there is both positive and negative evidence of record. The negative evidence is a private treatment record from April 2015, wherein a registered nurse from the Veteran’s treating hospital maintained that there is no evidence that Agent Orange caused the Veteran’s tumor. Contrarily, there is an oncology report from July 2017 wherein M.K., M.D. after reviewing the Veteran’s medical records and specific history of cancer, opined that together the epidemiology and scientific evidence indicate that it is more likely than not that the Veteran’s herbicide agent exposure caused or substantially aggravated his risk for glioblastoma, and as such caused or substantially contributed to the cause of death. In support of this conclusion, he pointed out that while VA does not recognize glioblastoma as being related to herbicide exposure, there are peer-reviewed studies with supportive epidemiologic data linking the two. Moreover, he maintained that given the small number of studies and rarity of glioblastoma, the level of epidemiologic evidence is somewhat weak both for and against an association, but the evidence is at least as strong or stronger in favor of a causative relationship. (Continued on the next page)   In light of the foregoing opinions, the Board finds the July 2017 private oncology report to be highly probative. The reporting doctor was well informed of sufficient relevant facts to form an appropriate medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The report analyzed and addressed, in-depth, the Veterans service records, medical history, and credible lay statements, while also considering pertinent peer-reviewed medical literature, and laboratory data. On the other hand, the nurse’s opinion is afforded little probative weight because it failed to address the epidemiology of the disease, and provide a rationale for why the in-service exposure to Agent Orange could not have contributed to or caused the Veteran’s cause of death. Accordingly, resolving reasonable doubt in the appellant’s favor, a grant of service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Russell, Associate Counsel