Citation Nr: 21002060 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-29 622 DATE: January 12, 2021 ORDER Entitlement to service connection for glioblastoma multiforme as due to herbicide exposure, for accrued purposes, is granted. FINDING OF FACT The Veteran died in November 2014 as a result of glioblastoma multiforme, and there is persuasive medical opinion evidence that shows the Veteran’s glioblastoma multiforme was at least as likely as not related to his presumed in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for glioblastoma multiforme as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019).  REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the spouse of the Veteran who served on active duty from October 1968 to May 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in November 2014. However, at the time of his death he had a pending claim for service connection for glioblastoma multiforme, filed in September 2013. In June 2014, the Veteran filed a notice of disagreement to the May 2014 rating decision denying his claim for service connection. In November 2014, the appellant filed a request for substitution of claimant upon death of claimant. In a March 2015 memorandum, VA recognized the appellant as the Veteran’s surviving spouse. Since that time the appellant has continuously appealed the Veteran’s claim up to the Board. The Board issued a prior remand on this claim in February 2019. Accrued Benefits and Service Connection A claim for accrued benefits is derivative in nature. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1994). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) the United States Court of Appeals for the Federal Circuit (hereafter Federal Circuit) held that, together, 38 U.S.C. §§ 5101 and 5121 compel the conclusion that for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to accrued benefits under existing ratings or decisions (comporting with Zevalkink) that an “accrued benefits claim is derivative”. Thus, where there was a claim pending on the date of the Veteran’s death, there may legally be a claim for accrued benefits if, as here, the accrued benefits claim is timely filed. 38 U.S.C. § 5121(c) and 38 C.F.R. § 3.1000(c). A claim for dependency and indemnity compensation (DIC) filed within one year after the Veteran’s death is deemed to include and ‘shall also be considered’ a claim for accrued benefits under 38 U.S.C. § 5101(b)(1) and 38 C.F.R. § 3.1000(c). Satchel v. Derwinski, 1 Vet. App. 258, 259 (1991); Isenhart v. Derwinski, 3 Vet. App. 177, 179 (1992) and Shields v. Brown, 8 Vet. App. 346 (1995). Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for glioblastoma multiforme, including as secondary to herbicide exposure. Prior to his death, the Veteran asserted that his diagnosed glioblastoma multiforme was caused by exposure to herbicide agents while in service. The Veteran’s death certificate shows that the cause of his death was in fact glioblastoma multiforme. The Veteran’s DD Form 214 shows that he had service in Vietnam from April 1970 to April 1971. As such, he is presumed to have been exposed to herbicide agents. The Board notes, however, that glioblastoma multiforme is not on the enumerated list of presumptive conditions associated with herbicide agent exposure. See 38 C.F.R. §§ 3.307, 3.309 (2019). The Board further notes that the Veteran’s claim has been denied by the RO based on the fact that the Veteran’s glioblastoma was not on the presumptive list, and that at the time no VA medical opinion was obtained. Nevertheless, an August 2013 private medical opinion from Dr. T.R. states specifically that while the cause of glioblastoma multiforme is unknown, it is not impossible that Agent Orange is a causative agent. In addition, a February 2016 letter from Dr. R.C. reflects that the Veteran’s exposure to Agent Orange is as likely as not the cause of the Veteran’s cancer. The supporting rationale was that there have been no examples of this cancer in the Veteran’s family, and that he was not exposed to radiation prior to his cancer treatment. Although glioblastoma multiforme is not on the enumerated list of presumptive conditions associated with herbicide agent exposure, the appellant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Therefore, the Board issued a February 2019 remand instructing the RO to obtain a medical opinion regarding the nature and etiology of the Veteran’s glioblastoma multiforme and its relation to his active duty. The Board also instructed that the VA examiner should specifically address the private medical opinions noted above from Dr. T.R. and Dr. R.C. In May 2019, a VA medical opinion was obtained. Here, the examiner who is noted to be a doctor of occupational medicine, wrote “VBMS reviewed. Opinion less likely as not. I believe there is neither peer reviewed evidence in the medical literature, consensus in the medical community, or evidence in this specific case that supports a casual/aggravation relationship between glioblastoma multiforme and herbicides in service. Reviewed letters from Dr. T.R. his argument totally speculative no rational. Dr. R.C. his argument also speculative. . . most glioblastoma multiforme is not genetic or caused by radiation.” In December 2020, the appellant, through her representative, provided an opinion in support of her claim dated November 9, 2020. This opinion, which was provided by a board-certified doctor of internal medicine and medical oncology, found that it was more likely than not that the Veteran’s herbicide/AO exposure in service caused or substantially aggravated his risk for glioblastoma multiforme. Specifically, doctor M.K. wrote “I believe that it is more likely than not that [the Veteran’s] herbicide/AO exposure in service caused or substantially aggravated his risk for glioblastoma, and as such caused or substantially contributed to the cause of his death. Furthermore, his diabetes, which is a presumptive AO-connected condition, rendered him materially less capable of resisting the effects of his cancer.” In support of his opinion, Dr. M.K. provided a full discussion of the Veteran’s treatment history and each of the three opinions noted above. Dr. M.K. then provided a review of the current studies regarding the link between glioma to herbicides and contended that the VA examiner’s opinion was “excessively generalized and too absolute.” Dr. M.K. noted that the VA examiner’s opinion “does not benefit from a review of the published papers on this topic.” Based on his review of the research and the Veteran’s medical history, Dr. K.M. opined “Together, the epidemiology and scientific evidence indicate that it more likely than not that AO contributes to glioblastoma pathogenesis, and that AO contributed to [the Veteran’s] GBM.” Dr. K.M. also noted that the Veteran “does not appear to have risk factors that should have predisposed him to GMB other than exposure to herbicides during his military service in the Vietnam War.” Finally, Dr. K.M. opined that the timing of the Veteran’s diagnosis of glioblastoma was not problematic due to studies showing that the half-lives of dioxin compounds can remain in the bloodstream for several years, and opined that it was more likely than not that the Veteran’s diabetes rendered him materially less capable of resisting the effects of his cancer.” The Board finds this opinion to be thorough, well-reasoned, supported by the record, and supported by the cited medical literature, entitling it to significant probative weight. The Board notes that the VA examiner’s May 2019 opinion was not supported by a clear rationale, therefore it is assigned no weight. The Board finds that there is persuasive medical opinion evidence that shows the Veteran’s glioblastoma multiforme was at least as likely as not related to his presumed in-service herbicide exposure. Accordingly, entitlement to service connection for glioblastoma multiforme as secondary to herbicide exposure, for accrued purposes, is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.