Citation Nr: 18158164 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-49 712 DATE: December 14, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. At the time of his death, the Veteran was service-connected for ischemic heart disease which was rated as 60 percent disabling, diabetes mellitus (type 2) which was rated as 20 percent disabling, and tinnitus which was rated as 10 percent disabling. The medical evidence indicates that none of the Veteran’s service-connected conditions caused or contributed to his death. 2. The immediate cause of the Veteran’s death was brain cancer (glioblastoma multiformis), which the medical evidence shows was less likely than not due to or caused by his service, to include his conceded exposure to herbicide agents (e.g., Agent Orange). CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1969 to February 1971. He died in early 2015, and the appellant is the Veteran’s surviving spouse. In May 2018, the Board remanded the above-referenced claim for further development and readjudication. The Department of Veterans Affairs (VA) Regional Office (RO) has substantially complied with the Board’s remand instructions, so the Board may proceed to the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appellant claims entitlement to service connection for the cause of the Veteran’s death. Specifically, she asserts that the Veteran’s death was due to exposure to herbicide agents (e.g., Agent Orange) during his active service and/or that service-connected conditions contributed to the Veteran’s death. To establish entitlement to service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Importantly, the Veteran served in the Republic of Vietnam between January 9, 1962, and May 7, 1975. Veterans who served in Vietnam will be presumed to have been exposed to one of the relevant herbicide agents (e.g. Agent Orange). See 38 U.S.C. § 1116(f) (there is a rebuttable presumption of herbicide exposure in the case of veterans who served in Vietnam). However, the Veteran’s brain cancer (listed as the cause of death on the death certificate) is not one of the conditions presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii) (presumption for Vietnam veterans who have conditions listed in 38 C.F.R. § 3.309(e)). The appellant may still demonstrate direct service connection. See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). During the decedent’s lifetime, service connection was established for ischemic heart disease which was rated as 60 percent disabling, diabetes mellitus (type 2) which was rated as 20 percent disabling, and tinnitus which was rated as 10 percent disabling. His death certificate reflects that he died in January 2015 and lists “Brain Cancer” as the immediate cause of his death. Treatment records relating to his final illness establish that he suffered from a large hemorrhagic mass in the brain which was diagnosed as glioblastoma multiformis (GBM). See, e.g., December 2014 Private Treatment Records. The Board acknowledges the appellant’s belief that the Veteran’s brain cancer was caused by his wartime exposures to herbicide agents such as Agent Orange. However, while a lay person is competent to report (1) symptoms observable to a layperson (i.e., pain or facial droop); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay witness competent to render opinions regarding the cause of death in a medically complex case nor need the Board give any probative weight to bald assertions by a lay witness, such as appellant, regarding that subject. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The appellant, who lacks medical training, is not competent to opine on the cause of the Veteran’s death including, particularly, the role that diabetes, ischemic heart disease, or other service-connected conditions may have played in contributing to death and is not competent to opine on the etiology of the brain cancer that is listed on the death certificate as the cause of the Veteran’s death. See, e.g., Jandreau, 492 F.3d at 1377. There are two medical opinions of record that address the pertinent medical issues, including the cause of the Veteran’s death and the etiology of his brain cancer. In June 2016, a VA examiner opined that it was less likely than not that the Veteran’s service-connected conditions caused or substantially contributed to the Veteran’s death. The examiner specifically discussed diabetes and the Veteran’s ischemic heart disease (coronary artery disease) and the reasons those conditions were unlikely to have contributed to the Veteran’s death. The examiner further found it was less likely than not that the Veteran's service-connected conditions resulted in debilitating effects and general impairment of health to an extent that would render the Veteran less capable of resisting the effects of other disease or injury primarily causing death. The examiner explained that the Veteran’s diabetes was in fair to good control, and diagnostic testing showed his heart disease was well controlled, without signs of myocardial damage. The same VA examiner provided a June 2018 addendum opinion that the Veteran’s diagnosed brain cancer (glioblastoma multiformis) was less likely than not due to or caused by his conceded exposure to herbicide agents (e.g., Agent Orange) during his active service. The examiner noted that the International Agency for Research on Cancer does not list herbicide exposure as a carcinogenic agent for causing GBM. The examiner explained that the “bulk of the medical community” has not accepted herbicide agents as a carcinogen in humans with respect to GBM. The examiner also noted that prior Board decisions which granted benefits for GBM based on exposure to herbicide amounted to “anecdotal evidence.” The examiner also noted that the 2007 opinion from the VA Chief of Public Health and Environmental Hazards Officer was limited to stating an etiological relationship was “possible.” The examiner indicated that the statement was not based on the body of evidence in this matter. These opinions are wholly against the appellant’s claim. The appellant has supported her claim with citations to a prior Board decision and evidence cited therein, including a 2007 opinion from the VA Chief of Public Health and Environmental Hazards Officer. First and foremost, Board decisions are not precedential and the undersigned is not bound by the determination of another Veterans Law Judge in another case for another veteran, based on other evidence. 38 C.F.R. § 20.1303 (2017). Secondly, to the extent the evidence relied on in that case is used to establish general medical principles in this case, the principles applicable to consideration of medical treatises would apply. Information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, although it is possible that a treatise might “discuss generic relationships with a degree of certainty” that would allow a finding of “plausible causality based upon objective facts.” See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Here, the medical opinions in that case were based on the specific facts of that case, including that Veteran’s exposure levels, the timing and nature of onset of his condition, the presence/absence of other known risk factors, the course of development of the condition, and other case specific factors that are different from those present here. At best, the evidence establishes that it is possible that herbicide agents can cause GBM, but the standard of proof is “at least as likely as not” rather than a mere possibility. Based on that possibility and the 2007 opinion from the VA Chief of Public Health and Environmental Hazards Officer, the Board remanded this case and obtained an addendum medical opinion in 2018, discussed above.   The Board acknowledges that the appellant may feel that it is unfair that the Board has found GBM to be caused by exposure to herbicide agents in one case but does not find so here. However, the undersigned must base this decision on the facts of this case. GBM is not a presumptive condition, so there is not a VA policy of awarding presumptive service connection for GBM and in this case, unlike in the other case, there are no competent medical opinions linking this Veteran’s GBM with his exposure to herbicide agents. In the case relied upon by the appellant, there were multiple favorable opinions of record addressing that Veteran’s specific circumstances. The appellant has not submitted any similar opinions and the VA examiner in this case provided a negative opinion with a thorough explanation. The greater weight of the evidence in this case is against finding that exposure to herbicide agents caused or contributed to the Veteran’s GBM. The appellant has not submitted any private opinions or other competent medical evidence that tends to establish either that exposure to herbicide agents caused the Veteran’s GBM or that his other service-connected disabilities caused or substantially contributed to his death. She has not alleged and the evidence is against finding that any other in-service event caused or contributed to the Veteran’s GBM or is otherwise related to his death. The greater weight of the evidence is against the appellant’s claim, so it is denied. Gilbert v. Derwinski, 1 Vet. App. 53-56 (1990). Duties to Notify and Assist The appellant has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361   (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board needs to discuss VA’s compliance with the duties to notify and assist. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel