Citation Nr: 19101366 Decision Date: 01/08/19 Archive Date: 01/07/19 DOCKET NO. 17-07 667 DATE: January 8, 2019 ORDER Entitlement to service connection for cause of death is granted. Entitlement to service connection for glioblastoma multiforme (GBM), claimed as due to herbicide exposure (Agent Orange), for substitution purposes, is granted. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance, for substitution purposes, is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's certificate of death lists the immediate cause of death as GSM of the brain. 2. The most persuasive medical opinion of record weighs in favor of a finding that the Veteran's death from GBM of the brain was the result of in-service exposure to herbicides. 3. The Veteran has been shown to have required the care or assistance of another person for certain daily living activities prior to his death, as a result of GSM, for which service connection has now been granted. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 2. The criteria for service connection service connection for GBM as secondary to herbicides, for substitution purposes, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312, 3.313. 3. The criteria for an award of special monthly compensation based on the need for regular aid and attendance of another, for substitution purposes, have been met. 38 U.S.C. §§ 1114, 5102, 5103, 5103A, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1966 to October 1969. These matters come to the Board of Veterans’ Appeals (Board) from a March 2014, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, and a May 2016, rating decision of the VA RO in Philadelphia, Pennsylvania. The Veteran filed a claim of service connection for GBM and SMC for aid and attendance during his lifetime, and these claims were pending appeal (but had not yet been certified to the Board) at the time of his death in November 2015. Subsequently, the appellate, as the Veteran’s surviving spouse applied for Dependency and Indemnity Compensation (DIC) to be substituted. See, VA Form 21-534. The appellate subsequently filed a cause of death claim after the Veteran died from GBM in November 2015. Entitlement to service connection for GBM and for cause of death. The appellant is seeking DIC benefits. Such benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.350. To establish service connection for the cause of the veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Establishing service connection generally required medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree to 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for certain diseases may also be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide applies to a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations, if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. Several cancers, including leukemia, lymphoma, prostate cancer, certain respiratory cancers, and soft-tissue sarcoma, among others, may be presumed associated with herbicide exposure. Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. VA has determined that a positive association exists between exposure to herbicides and the subsequent development of the following conditions: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease, including coronary spasm, and coronary bypass surgery, and stable or unstable angina and Prinzmetal's angina); all chronic B-cell leukemias (including but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda (PCT); prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). PCT, chloracne, and early-onset peripheral neuropathy are required to become manifest to a compensable degree within one year from last exposure. Service connection may also be established by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a) or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The appellant contends that the brain tumor, GBM, that caused the Veteran's death in November 2015, was due to the Veteran's exposure to herbicide agents while serving in Vietnam. See, March 2017 Notice of Disagreement (NOD). As noted, a Veteran who served in Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicides, unless there is affirmative evidence that no exposure occurred. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The record reflects that the Veteran served in Vietnam from April 1967 to April 1968, and that during this requisite period, he received several meritorious awards for his service, including a Combat Infantry badge and a Purple Heart. See, Veteran’s DD214. Under 38 C.F.R. § 3.307(a)(6)(iii), the Veteran was therefore presumed to have been exposed to dioxin-based tactical chemical herbicides (referred to generally as Agent Orange). The Board notes that the Veteran was diagnosed with GBM in August 2011, and that shortly afterwards, the Veteran filed his claim for service connection for GBM, which he subsequently died from, in November 2015. See, Veteran’s private medical records. See, Veteran’s death certificate. However, since GBM is not one of the recognized diseases presumed to be related to herbicide exposure, a regulatory presumption of service connection does not apply in this case. Given this fact, the claim must be reviewed to determine whether service connection can be established on a non-presumptive direct-incurrence basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Because the Veteran’s GBM diagnosis is 40 years post service, and there was no record of any manifestation while in service, the RO denied the Veteran’s claim for service connection for GBM in March 2014, based on the VA examiner’s negative nexus opinion concerning a possible relationship between GSM and Agent Orange exposure. Although the Veteran provided two positive nexus opinions (June 2012 and October 2013) from his private physician, the RO stated that more weight was given to the VA examiner’s opinion, concluding that the VA examiner’s negative opinion was based on a more thorough review of the Veteran’s relevant military and/or personal history. See, March 2014 rating decision. The RO also noted that the private physician failed to provide medical literature in support of his positive nexus opinion between Agent Orange and GBM. The Board finds it difficult to determine how the RO came to the conclusion that the VA examiner’s review of the Veteran’s file was more thorough than that of the Veteran’s private physician, since the Veteran’s private physician was his treating physician (for two and half years at that point), and neither the private physician nor the VA examiner reviewed the Veteran’s service treatment record. Further, although the private physician made only a general statement in support of his positive nexus opinion, and did not include supportive medical literature, the same is true for the VA examiner. The VA examiner’s opinion was also not supported by specifically cited medical literature; rather, a general statement noting that there is no literature to support a positive nexus. See, March 2014 VA examination. Consequently, the Board assigns the March 2014 VA medical examiner’s opinion low probative value. Appellate has since provided an additional private medical opinion (February 2016), with a detailed list of medical literature to support the private physician’s positive nexus opinion between exposure to Agent Orange and GSM. See, February 2016 private medical opinion. The private medical opinion also states that while brain tumors were not currently officially-accepted Agent Orange-associated cancers, there is adequate published laboratory science and epidemiologic data linking Agent Orange or dioxins to GSM. Id. In the February 2016 opinion, the physician cited to specific studies from Arkansas, Nebraska and Seveso, Italy, that link GBM to dioxins, including Agent Orange exposure, albeit in a non-miliary setting. The private physician also cites to the 2009 Milbrath medical literature, which states that once exposed to dioxins, it stays and remains latent in a person’s body for decades, when it may manifest itself in the form of cancer. The private physician concluded that lack of diagnosis in service or within a year later, should not be the primary basis for a negative nexus opinion. See, February 2016 private medical opinion. In addition, the opinion states that there is no evidence that GBM is attributable to smoking, put forward to eliminate smoking as the contributory cause of the Veteran’s GSM, since the records show that the Veteran was a smoker until 1993. See, Veteran’s May 2012 private medical records. Stating that he reviewed the Veteran’s record and the medical literature thoroughly, the private physician opined that it was more likely than not that the Veteran’s herbicide exposure (Agent Orange) caused or aggravated his risk for GSM, and that GSM therefore substantially contributed to his ultimate death. See, February 2016 private medical opinion. The Board finds the February 2016 private medical opinion, which is supported by persuasive medical literature, to be competent and credible, and therefore assigns this medical opinion high probative value. As the evidence is at least, in equipoise with regard to whether the Veteran's GBM is related to the Veteran's military service, specifically his exposure to Agent Orange while serving in Vietnam, the Board finds that service connection should be granted for the Veteran’s GBM (brain tumor), and that consequently, service connection for the Veteran’s cause of death, which indisputably was from GBM, is also warranted. Entitlement to SMC based on Aid and Attendance Upon the death of a veteran any accrued benefits are payable to a veteran's spouse, children (in equal shares), or dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). "Special monthly compensation" is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for the regular aid and attendance of another: Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which any normal person would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that “at least one of the enumerated factors be present.” Id. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). If the veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the veteran has a single service-connected disability rated as 100 percent and: (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Where (as here) there has been a substitution of parties, the record is not closed on the date of death of the original claimant. Rather, the claim remains open for the submission and development of any pertinent additional evidence. 38 C.F.R. § 3.1010 (f)(3); see, also Fast Letter 10-30 (issued August 2010, as revised April 2013). At the time of the Veteran’s SMC claim in May 2013, the Veteran’s only service-connected claim was for scar residuals from his shrapnel wounds, for which he was evaluated at 10 percent. The Veteran’s GBM was the basis for his SMC claim for aid and assistance with activities of daily living. The Veteran’s SMC claim was denied in a March 2014 rating decision, with the RO finding that the evidence did not show that the Veteran needed the regular aid and attendance of another person to perform routine hygienic activities. See, March 2014 Rating Decision. However, based on the specific notations on VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form, the Board finds that the Veteran meets at least one of the criteria enumerated in 38 C.F.R. § 3.352(a). Although he was not housebound (which is not a requirement for his claim), the Veteran needed daily assistance to do the following: bathe and tend to his other hygienic needs, such as dressing himself; administer his mediation (which was done by the Appellant on a regular basis), and prepare his meals. Furthermore, the Veteran’s subsequent treatment records reflect that the Veteran became more lethargic as his illness progressed, requiring progressively more aid and assistance, and by the time he was in hospice care in August 2015, the Veteran was bedridden until his death in November 2015. See, December 2011, May 2012 and February 2016 private treatment records. The grant of special monthly compensation based on aid and attendance effectively renders moot the issue of entitlement to special monthly compensation on the basis of being housebound, since special monthly compensation based on aid and attendance is the higher benefit and payable at a higher rate. Accordingly, affording the appellant the benefit of all doubt, the Board finds that the evidence is at least in equipoise, and that the criteria for special monthly compensation based on aid and attendance, for substitution purposes, are shown to have been met. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel