Citation Nr: 19145331 Decision Date: 06/11/19 Archive Date: 06/11/19 DOCKET NO. 18-27 480 DATE: June 11, 2019 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran’s death. Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. In an unappealed July 2001 rating decision, the RO denied the claim for service connection for the cause of the Veteran’s death. 2. The evidence received since the July 2001 rating decision is new and material and raises a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran’s death. 3. The Veteran was presumed to have been exposed to herbicide agents during service based on his service in the Republic of Vietnam during the Vietnam War era. 4. The Veteran's death certificate demonstrates that he died in June 2000 and the immediate cause of his death was glioblastoma multiforme. 5. Resolving any reasonable doubt in the Appellant’s favor, the Veteran’s fatal glioblastoma multiforme contributed substantially to his presumed exposure to herbicide agent exposure during service. CONCLUSIONS OF LAW 1. The July 2001 rating decision denying the claim for service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received since the July 2001 final denial of service connection for the cause of the Veteran’s death, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for entitlement to service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312(a)(b) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1962 to December 1962 and March 1967 to May 1973. He unfortunately died in June 2000. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2017 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence In February 2001, the Appellant filed for service connection for the Veteran’s cause of death. The Appellant was initially denied service connection for cause of the Veteran’s death in a July 2001 rating decision because the available scientific and medical evidence did not support the conclusion that the cause of death, glioblastoma multiforme, was associated with the Veteran’s exposure to herbicide agents during service. The Appellant was notified of the rating decision, but did not appeal the decision, nor was new and material evidence received within one year. The July 2001 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Appellant filed a petition to reopen the claim in July 2017. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the last final rating decision dated in July 2001 included the Veteran’s service treatment records pertinent to his second period of service; his death certificate; statements from the Appellant, and private treatment records. The evidence received subsequent to the July 2001 rating decision includes, in pertinent part, two favorable 2017 etiology opinions provided by private medical doctors. These medical opinions are new, as such evidence was not of record prior to the issuance of the last final rating decision. Moreover, the evidence is material, as it relates to the unestablished element of a nexus. Accordingly, the Board finds that the newly added evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for the cause of the Veteran’s death. As such, the claim is reopened. The Board will proceed with analyzing the merits of the claim and finds no prejudice in doing so, particularly because the outcome is completely favorable. Analysis The Appellant asserts that the Veteran died as a result of exposure to herbicide agents in Vietnam, specifically Agent Orange and dioxin. See February 2001, August 2017 and September 2017 Statements in support of the claim. To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310, 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Service connection may be established for a disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially 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, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran in this case was not service connected for any disabilities during his lifetime. The Veteran’s service personnel records confirm that he served in the Republic of Vietnam during the Vietnam War era. Based on such service, he is presumed to have been exposed to herbicide agents during such service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Certificate of Death reflects that the Veteran died in June 2000 and the immediate cause of his death was progressive glioblastoma multiforme. See Certificate of Death issued in August 2000. The Board notes that the Veteran’s fatal glioblastoma multiforme is not one of the diseases subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). Nonetheless, the Appellant is not precluded from establishing service connection for the Veteran’s cause of death due to exposure to herbicide agents with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In support of the claim, the Appellant submitted a private medical opinion dated in February 2017 by Dr. F.S.L, MD, the Director of Adult Neuro-oncology Program and Professor of Neurology, Neurosurgery and Medical Oncology at the University of Pittsburgh School of Medicine. After considering the Veteran's specific medical history, including the Veteran’s diagnosis in 1980 and referencing medical research, Dr. F.S.L. opined that it was more likely than not that the Veteran’s glioblastoma multiforme, which was his cause of death, was causally related to his exposure to dioxin during his service in Vietnam. Dr. F.S.L reasoned that there was compelling evidence linking the exposure to dioxin TCDD to the development of glioblastoma multiforme in experimental animals. Additionally, he referenced a 2008 Institute of Medicine review of epidemiologic evidence that concluded that after exposure to the dioxin TCDD there was an increased risk of developing a number of cancers, including glioblastoma multiforme. In September 2017, VA received a medical opinion from Dr. E.A., M.D., who is identified as a doctor in Neuro-oncology and the co-founder of the CNI Center for Brain and Spinal Tumors. After recalling his prior treatment of the Veteran, Dr. E.A. opined that the Veteran’s relatively rare disease was more likely than not to have been caused by his exposure during service. In support of his opinion, Dr. E.A. reasoned that “when someone is diagnosed with a relatively rare disease and is known to have been exposed to a known cause for this disease, it is assumed, unless proven otherwise, to have been caused by this exposure.” Dr. E.A. then indicated that this was the case here. The Appellant also submitted medical literature related to the exposure of herbicide agents and the development of glioblastoma multiforme. Notably, this information included medical literature from the Toxnet database of the National Library of Medicine, which discussed whether glioblastoma multiforme was linked to polychlorinated biophens (PCB). The study showed that the mortality from glioblastoma multiforme was modestly increased in men with up to 10,000 hours of PCB exposure. The Appellant also attached an article on the herbicide agents used in Vietnam; the article explained that both agent orange and dioxin were used in Vietnam. Also attached to this was an additional article on the risk of developing glioblastoma multiforme to farmers who used pesticides. See September 2017 Medical literature from Toxtnet; September 2017 article titled the ‘Environmental and Occupational Causes of Cancer New Evidence 2005-2007’ and additional articles related to the use herbicide agents in Vietnam. The Appellant also submitted prior Board decisions related to other Veteran’s claims for service connection for glioblastoma multiforme due to Agent Orange exposure. Although prior Board decisions may be considered in a case to the extent that they reasonably relate to the case, the Board notes that prior Board decisions are not precedential or binding. See 38 C.F.R. § 20.1303 (2018). Resolving any reasonable doubt in the Appellant's favor, the Board concludes that the weight of the evidence supports a finding that the Veteran's presumed exposure to herbicide agents during Vietnam service contributed substantially to the development of his fatal glioblastoma multiforme. In so finding, the Board finds the February 2017 and September 2017 medical opinions to be both adequate and highly probative. One of the private Neuro-oncologists reviewed the Veteran’s hospital treatment records and the other treated him for his glioblastoma multiforme. Moreover, both opinions were supported by a clear and thorough rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Consequently, service connection for the cause of the Veteran's death is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.