Citation Nr: 20007743 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-58 135 DATE: January 30, 2020 ORDER Entitlement to service connection for cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran’s record places him in the Republic of Vietnam from November 1968 to June 1969, and thus, there is a presumption that he was exposed to herbicide agents while serving on active duty. 2. The Veteran died in March 2009. The immediate cause of death listed on his death certificate is progressive glioblastoma multiforme (GBM); no other contributing conditions are listed. 3. At the time of his death, the Veteran was service-connected for adenocarcinoma of the prostate, impotency associated with adenocarcinoma of the prostate, and posttraumatic stress disorder (PTSD) and depression. 4. The evidence is in relative equipoise as to whether the glioblastoma multiforme substantially contributed to the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1112, 1116, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to June 1969. He died in March 2009. His surviving spouse is the appellant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In November 2018 the Board denied the appellant’s claim of entitlement to service connection for cause of the Veteran’s death. The appellant timely appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). In July 2019, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the Board’s November 2018 decision as it pertains to the issue of entitlement to service connection for cause of the Veteran’s death. The case has now returned to the Board for adjudication. Entitlement to service connection for cause of the Veteran’s death is granted. As noted above, the Court remanded the appellant’s claim back to the Board to consider evidence of record that was not considered in its November 2018 decision. Specifically, the JMPR concluded that a remand to the Board was required because the Board erred in failing to receive and consider the complete nexus opinion prepared by an oncologist in June 2018 in this matter. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service 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 had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations provide that the following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307 (d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309 (e) (2017). GBM is not a condition which has been afforded the VA presumption of service connection due to Agent Orange exposure; however, the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the of the Veteran’s death. 38C.F.R.§3.312(a). To establish service connection for the cause of a Veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38U.S.C.§1310; 38C.F.R.§§3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997) In order to establish service connection for the cause of a 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. A service-connected disability will be considered as the principal, or 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. 38C.F.R.§3.312(b). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. 38C.F.R.§3.312(c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The appellant asserts that her late husband should have been service connected for his diagnosed glioblastoma because the Veteran was exposed to Agent Orange and herbicide agents during his Vietnam service. She has also asserted an alternative theory that her husband's disease possibly resulted from his exposure to solvents used to clean his weapons during active service. The Veteran died in March 2009. The immediate cause of death listed on his death certificate is progressive glioblastoma multiforme; no other contributing conditions are listed. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). The Board notes in the record that the Veteran served in the Republic of Vietnam from November 1968 to June 1969, and received the Combat Action Ribbon, among other decorations for his service there. Based on this evidence, the Board finds that the Veteran served in the Republic of Vietnam during an applicable presumptive period and is therefore presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (a)(6)(iii). Thus, an in-service event, injury or disease, specifically herbicide exposure, has been shown for the purposes of presumptive service connection. However, the diseases associated with herbicide exposure for purposes of the presumption do not include glioblastoma. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e); see 78 Fed. Reg. 54763(Sept. 6, 2013). As noted previously, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. The Veteran was originally diagnosed with right frontotemporal glioblastoma multiforme in November 2007 at a private hospital. In December 2007, the Veteran filed a claim for entitlement to service connection for glioblastoma, and VA provided an opinion in February 2008 regarding whether the Veteran's diagnosed and service-connected prostate cancer was in any way related to the newly-diagnosed brain cancer. The examiner responded that glioblastoma is a separate primary tumor and that a review of the available medical literature indicated that was no evidence that glioblastomas are related to cancers of the prostate. The examiner clarified that the glioblastoma was not a metastasis of the prostate tumor but rather a primary tumor with its own etiology. VA provided another opinion in November 2015 to address the appellant's claim that the Veteran's diagnosed glioblastoma was the result of herbicide exposure in Vietnam. This examiner first reviewed whether any of the Veteran’s existing service-connected disabilities of prostate cancer, erectile dysfunction, and PTSD and depression, to include medications taken for those disabilities, were the cause of or contributed to the Veteran's glioblastoma. The instruction to the examiner included the statements that it must be shown that it contributes substantially or materially, that is combined to cause death, that it aided or lent assistance to the production of death. 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. The examiner' response was, "with a very high degree of medical certainty," that the Veteran's glioblastoma was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions, to include any medications used to treat the service-connected conditions. The examiner's rationale was that the medical literature does not show any causal links between the service-connected prostate cancer and the glioblastoma. This examiner also noted the Veteran's service treatment records showed no indications or risk factors that would lead to glioblastoma. The examiner continued, saying the service-connected conditions did not cause debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. The examiner also opined that it was less likely than not (less than 50 percent probability) that the solvents used by the Veteran during his active service to clean his weapons were the cause of or substantially contributed to the Veteran's glioblastoma. The examiner's rationale was that there is no medical literature or other studies that indicates the military's solvents used to clean weapons ties to any development of glioblastoma. VA provided an additional opinion in December 2015 to address whether the Veteran's service-connected PTSD and depression, and the medications used to treat those disabilities, caused or substantially contributed to the Veteran's death. This examiner opined that it is less likely than not that the Veteran's PTSD or any other mental health-related symptom or treatment contributed to death in a substantial or material manner, that it contributed in a causal manner with death. The examiner's rationale was that the Veteran's ongoing mental health treatment with VA after 2007 did not suggest gross impairment in mental health such that the Veteran was unable to reasonably benefit from other medical services relating to any other physical or mental health diagnosis. The examiner also noted that existing medical literature is silent for the direct effect of mental health disorders, and in this case, the medications the Veteran was taking, to have a physical effect on the brain such as to predispose it to a tumor such as a glioblastoma. In June 2018, Dr. M.K., a private oncologist, submitted a medical opinion. In the June 2018 medical opinion, Dr. M.K. indicated that he reviewed the Veteran’s claims file, service records, as well as peer-reviewed published medical literature pertinent to the case. Dr. M.K. noted that because gliomas are relatively rare, there is unlikely to be high-quality epidemiologic evidence directly linking the Veteran’s Agent Orange exposure to gliomas. This rarity explains the existence of negative Institute of Medicine reports which decline to recognize correlations in the face of supportive epidemiologic data of the relationship between dioxin exposure to the increased incidence of brain cancer. Dr. M.K. reported that a study of cancer morbidity among farmers in wheat-producing states in the United States revealed that the degree of use of herbicides correlated with a higher cancer rates, including brain cancers in men; a Nebraska study revealed a higher incidence of gliomas in male farmers with herbicide exposure; an Italian study of residents exposed to dioxins in herbicides after an industrial incident showed an increased incidence of brain cancers over the non-exposed population; and a military study found that Vietnam Veterans from the Army Chemical Corps who were exposed to herbicides showed an excess of fatalities from cancers of the brain at an incidence of 2, compared with the expected incidence of 0.4. However, he explained, that there are a limited number of studies linking herbicides and dioxins to gliomas in non-military settings. Dr. M.K. concludes that epidemiology and scientific evidence indicate that it is more likely than not that Agent Orange contributed to glioblastoma pathogenesis, and that Agent Orange contributed to the Veteran’s development of GBM. Dr. M.K. notes that there are indeed possible risk factors associated with GBM, which include prior therapeutic radiation, decreased susceptibility to allergy, and certain single nucleotide polymorphisms in genes. However, the Veteran did not demonstrate additional risk factors beyond Agent Orange exposure that would have predisposed him to GBM, including chemical exposure, family history, therapeutic radiation, genetic predisposition, higher socioeconomic status, taller height, or alcohol consumption. He opined that “it is more likely than not that the [Veteran’s] herbicide exposure caused or substantially aggravated his risk for glioblastoma, and as such caused or substantially contributed to the cause of his death.” (Continued on the next page)   In weighing these opinions of record from competent medical sources, the Board notes that the February 2008, November 2015, and December 2015 reviewers studied the medical record and cited to medical studies to support their conclusions. However, the June 2018 private oncologist provided more in-depth analysis, cited to numerous medical studies for the causal relationship, and discussed each opinion of record. Considering the totality of the record, including the medical opinions discussed above, the Board finds the evidence to be at least in relative equipoise. As such, the benefit of the doubt is afforded the Veteran, and service connection for his cause of death is granted. . KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, 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.