Citation Nr: 20007664 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-26 642 DATE: January 29, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died on December [REDACTED], 2015. 2. VA concedes that the Veteran was exposed to herbicide agents during his service in the Republic of Vietnam. 3. Glioblastoma is not one of the diseases entitled to presumptive service connection, nor is it otherwise etiologically related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. § § § 3.303, 3.307, 3.309, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the Army from January 1967 to January 1970. He died in December 2015. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota (Agency of Original Jurisdiction (AOJ)). This matter was previously before the Board in September 2019. The Board remanded the issue of entitlement to service connection for the cause of the Veteran’s death to seek a medical opinion regarding the etiology of the Veteran’s glioblastoma. A review of the file reflects that an opinion was obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for the cause of the Veteran’s death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. §§ 3.312(a). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disease or 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(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. §§ 3.312(b). To find that the disease or disability contributed to death, it must be shown that it 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 it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. §§ 3.312(c)(1). For service connection to be granted for the cause of the Veteran’s death, the Appellant must show (1) a cause of the Veteran’s death is (or should be) service-connected, or (2) a service-connected disability caused the Veteran’s death. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. §§ 3.309(e), to include certain cancers, that disease shall be service-connected (provided the requirements of 38 C.F.R. §§ 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. §§ 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are 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; 38 C.F.R. §§ 3.307(a)(6)(iii). Certain chronic diseases, which are listed in 38 C.F.R. §§ 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. §§ 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. §§ 3.303(b)). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. A malignant tumor is deemed a chronic disease under 38 C.F.R. § § 3.309(a). An appellant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). VA concedes that the Veteran was exposed to herbicide agents based on his service in the Republic of Vietnam. At the time of his death, the Veteran in receipt of a 60 percent disability rating for ischemic cardiomyopathy. The Veteran’s death certificate lists brain cancer as the immediate cause of death; no secondary or underlying cause of death was provided. The appellant contends that the Veteran’s cause of death is related to service. Specifically, she asserts that the Veteran’s brain cancer which caused his death, glioblastoma multiforme, was due to herbicide agent exposure in service. The AOJ conceded exposure to herbicide agents in the March 2016 rating decision. Under the law as it now stands, a presumption of service connection based on the Veteran’s exposure to herbicide agents cannot be granted in this case as glioblastoma is not on the list of diseases associated with herbicide exposure. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). However, a Veteran may also establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The appellant argued that the Board has granted service connection in the past for the cause of a veteran’s death on the basis that glioblastoma multiforme brain cancer was likely caused by herbicide agent exposure. She referenced a specific citation to a Board decision to support her argument. The Board notes that its past decisions are based on particular facts and circumstances specific to each case. Past decisions are not precedential. The Board remanded this issue in September 2019 to obtain an opinion regarding the etiology of the Veterans’ glioblastoma. The physician, Dr. S.C.C., opined that it was less likely than not that the Veteran’s service-connected ischemic cardiomyopathy contributed to the cause of the Veteran’s death, explaining that this included whether it “combined to cause death, aided or lent assistance to the production of death, resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death, or was of such severity as to have a material influence in accelerating death.” Following a review of the evidence of record, Dr. S.C.C. rationalized that the Veteran’s ischemic cardiomyopathy remained stable since around 2008 and had no contribution to the glioblastoma and treatments received for brain cancer. He relied on multiple treatment notes, including one from August 2012 which states, “ischemic cardiomyopathy – no evidence of decompensated congestive heart failure.” He further opined that it is less likely than not that the Veteran’s glioblastoma was incurred in or caused by the Veteran’s active duty service, to include any exposure to herbicide agents. He rationalized, “review of the available records and medical literature reveals no evidence of a direct, causal relationship between herbicide exposure and subsequent development of glioblastoma. Specifically, the National Academy of Medicine’s 2018 update to the report on Agent Orange notes the following: ‘Although the committee was tasked with examining all health outcomes that may be associated with exposure to the COIs, VA specified that the committee should give particular attention to glioblastoma multiforme. Glioblastoma multiforme is the most common brain tumor and has the worst prognosis. Because glioblastoma multiforme was specifically noted as an outcome of importance in the committee’s Statement of Task, a targeted literature search for this outcome was undertaken. No date or language parameters were applied, and a total of 153 articles were found. Each was reviewed for relevance against the COIs and checked against the previous VAO reports. Based on the epidemiologic evidence from new and previously reported studies of populations that had potential exposure to the COIs, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and brain cancer or other nervous-system cancers.’” As such, the Board finds that the Appellant is not entitled to service connection for the cause of the Veteran’s death based on his presumptive exposure to herbicide agents. Furthermore, the Appellant is not entitled to service connection for the cause of the Veteran’s death under a theory of direct service connection because there is no lay or medical evidence of complaints, symptoms, or treatment for glioblastoma multiforme in service; his condition did not manifest until decades post-separation. Thus, service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or as being manifest to a compensable degree within one year of service under 38 C.F.R. § 3.309(a) is not warranted. Additionally, there is also no competent evidence suggesting a causal relationship between glioblastoma multiforme and the Veteran’s active duty service, to include his in-service exposure to herbicide agents, or to his service-connected ischemic cardiomyopathy. As such, the Board must deny the claim. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Narducci, 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.