Citation Nr: A21017447 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 210701-169945 DATE: October 27, 2021 ORDER Service connection for the cause of the Veteran's cause of death is granted. FINDINGS OF FACT 1. The Veteran died in May 2000. 2. The cause of the Veteran's death was neoplastic cachexia due to cerebral glioblastoma (brain tumor). 3. The Veteran served as radioman for 24 years during service. 4. The Veteran's cause of death, brain tumor, is causally related to exposure to communications equipment emitting electromagnetic field radiation. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1116, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, served on active duty from January 1968 to January 1972, and from June 1975 to June 1995. The Veteran died in May 2004. The appellant is his surviving spouse. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans disagreeing with VA's decision on their claim. This decision has been written consistent with the new AMA framework. This matter arose from the appeal of a February 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the Veteran's death. In October 2007, the appellant was afforded a hearing before a former Veterans Law Judge (VLJ) who is no longer with the Board. She later provided testimony before another VLJ in March 2012. The transcripts from both hearings are included in the claims file for review. This matter was previously before the Board in November 2007, May 2009, September 2012, and July 2019. In July 2019 the Board denied service connection for the cause of the Veteran's death. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in July 2020 granting a Joint Motion for Remand (JMR). Thereafter, the Board remanded the matter for another medical opinion in March 2021. In May 2021 the RO issued a supplemental statement of the case (SSOC), continuing the denial of service connection for the cause of the Veteran's death. The appellant submitted a timely July 2021 Notice of Disagreement (NOD) with the May 2021 SSOC, in which she opted into the AMA review framework and selected evidence review of the issue on appeal by a Veterans Law Judge at the Board of Veterans' Appeals (Board). While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for the cause of the Veteran's death, which is a total grant of benefits as to the issue on appeal, the Board need not address compliance with the Board remand order. Service Connection for Cause of Death is Granted. The appellant contends that the Veteran's brain tumor occurred in or was caused by his time in service. Specifically, she contends that the headaches the Veteran complained of during service were a symptom of an active tumor. In addition to headaches, she testified that the Veteran developed speech difficulties, memory problems, shaking in the hands, and hearing loss towards the end of service. The Veteran's representative also contends that the Veteran worked as a radioman during service and had exposure to electric and magnetic fields due to working with high powered communication equipment during service, and he was also exposed to asbestos while serving on Navy ships. The representative asserts that the Veteran's duties as a radioman or exposure to asbestos may have caused the brain tumor. See October 2007, March 2012 Board Hearing Transcripts, January 2021 representative brief. Dependency and indemnity compensation (DIC) is 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. § 3.5. Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 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. 38 U.S.C. § 1310; 38 C.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. 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 be etiologically related to the cause of death. 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. 38 C.F.R. § 3.312; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. In this case, the cause of death, cerebral glioblastoma, is considered a "malignant tumor" recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the chronic disease presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to this claim for service connection for cause of death. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran died in May 2004. The death certificate lists the cause of death as neoplastic cachexia due to cerebral glioblastoma (brain tumor) and listed deep vein thrombosis and seizures as other significant conditions. At the time of the Veteran's death, service connection had not been established for any disability, to include the cause of death listed on the death certificate; therefore, a service-connected disability was not the cause of the Veteran's death. The DD Form 214 shows the Veteran's military occupational specialty was radioman. The Board finds the account of in-service exposure to radio frequency electric and magnetic fields (EMF) to be credible and consistent with the places, types, and circumstances of the Veteran's service. 38 U.S.C. § 1154(a). After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's cause of death, cerebral glioblastoma, was caused by in-service EMF exposure. The record shows initial reports of severe and frequent headaches in 1977 with continued reports of chronic headaches in the 1980 and 1990s. In addition to headaches, the Veteran endorsed and was treated for episodes of lightheadedness with dizziness and trouble speaking, as well as chronic daily headaches with facial numbness and photosensitivity that were gradually lengthening over time. See June 1977, February 1980, April 1981, December 1983, April 1984, August 1992, September 1992, October 1992, April 1993, June 1995 service treatment records. The record shows that the Veteran also developed sinusitis with associated sinus headaches during service, with the first mention of symptoms in 1983. The Veteran eventually underwent a septoplasty for treatment of sinusitis and a deviated septum in September 1992, but continued to endorse chronic and severe headaches. Service treatment records indicate that a 1992 brain computed tomography (CT) scan as well as ear, nose, and throat, dental, and cardiac work ups were unrevealing as to the pathology of the Veteran's chronic headaches with associated symptoms. See January 1983, April 1984, December 1988, February 1989, August 1992, October 1992 service treatment records. The September 1995 service separation report of medical history indicates that the Veteran endorsed suffering from frequent or severe headaches; dizziness or fainting spells; sinusitis; shortness of breath; eye trouble; or tumor, growth, cyst, or cancer. Post-service records show continued problems with chronic headaches with associated symptoms of facial numbness, slurred speech on and off, blurred vision, dizziness, and loss of strength. While CTs of the head in 2001 and 2002 showed mild bifrontal atrophy, there was no evidence of tumor. Nevertheless, a treating physician in May 2001 noted that the Veteran's head pain syndrome was atypical for migraines. The record shows that the Veteran was first diagnosed with glioblastoma in September 2003. At the time, the presenting symptoms were headaches, slurred speech, ataxia, and altered mental state. A CT of the brain confirmed a brain tumor at that time, which was partially resected the following month, confirming a diagnosis of glioblastoma multiforme. See May 2001, June 2002, September 2003, October 2003. Multiple VA opinions were provided that weigh against a nexus between the Veteran's cause of death, brain tumor, and active service. Notably, the VA examiners indicate that the headaches noted during service began in 1980 and were either tension headaches or sinus headaches associated with chronic sinusitis. The examiners noted that the service treatment records did not document any symptoms that would suggest a brain tumor such as speech problems, lateralized weakness, loss of sensation, seizures, stiffness, or abnormal reflexes. The VA examiners noted that the Veteran's clinical presentation when glioblastoma was first diagnosed in 2003, including headaches, slurred speech, disorientation, and motor weakness, was consistent with his brain tumor and were not present during active service. The VA examiners in January 2011 and November 2018 also noted that, while it is possible that a non-aggressive tumor preceded the malignant glioblastoma, the possibility is very small, as the 1992 CTs during service and post-service CTs in 2001 and 2002 were normal. Moreover, the VA examiner in April 2021 noted that that exposure to electromagnetic/radio waves is not an established primary etiology of glioblastoma multiforme in the medical literature. See October 2008, July 2009, January 2011, October 2012, January 2018, November 2018, April 2021 VA examination reports. Notably, while the record does show diagnosis of tension headaches on one occasion in 1980, and an initial report of sinusitis in 1983 with episodic treatment for sinus headaches associated with sinusitis primarily between 1988 and 1992, the record shows that the Veteran endorsed severe or frequent headaches as early as 1977, prior to any report of symptoms or treatment for tension headache or sinusitis, and continued to have chronic headaches following surgical treatment of sinusitis. Additionally, the VA examiners do no explain why additional symptoms of dizziness, speech difficulties, facial numbness, and memory problems, which the appellant asserts also began during service, are symptoms of sinusitis or a tension headache rather than the onset of a brain tumor. The VA examiners noted that symptoms such as speech difficulties, loss of sensation, poor motor skills, or altered mental state, among others, are symptoms that suggest a brain tumor and are consistent with the Veteran's presentation when he was first diagnosed with the pain tumor in 2003; however, in addition to headaches, the service treatment records show that the Veteran first endorsed lightheadedness and dizziness with speech difficulties in 1983, and endorsed an additional onset of problems with facial numbness associated with headaches in 1992. Moreover, while imaging of the head in 1992, 2001 and 2002 did not show any tumors, the Veteran also presented with symptoms of chronic headaches, speech difficulties, dizziness, and facial numbness at that time as well, which is inconsistent with the VA's examiners factual assumption that during service the Veteran did not present any symptoms that suggest a brain tumor, such as headaches, speech difficulties, loss of sensation, and altered mental state. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). Evidence weighing in favor of a nexus between the Veteran's cause of death, brain tumor, and active service, includes a January 2021 medical article that indicated that electric and magnetic fields are possibly carcinogenic to humans. The article identified symptoms of EMF exposure to include sleep disturbances, headaches, depression, tiredness and fatigue, dysesthesia, lack of concentration, changes in memory, dizziness, irritability, loss of appetite and weight loss, restlessness and anxiety, nausea, and skin burning and tingling. Multiple medical opinions were provided in favor of a nexus between the Veteran's cause of death and active service. The Veteran's treating oncologist noted that the Veteran was seen for persistent headaches as well as speech problems and loss of sensation during service. The treating oncologist noted that, although CTs of the brain were inconclusive in 2001 and 2002, studies suggest that men whose jobs expose them to magnetic fields, as the Veteran was, have higher rates for brain cancer, so it is possible that a low-grade glial tumor preceded and transformed itself into glioblastoma, which explains the origin of symptoms during the years that preceded diagnosis. Other consulting physicians also noted that, despite tension headaches and sinusitis during service, those diagnoses do not account for the other accompanying neurological symptoms, such as speech difficulties, memory problems, dizziness, and facial numbness, which are not typical of sinusitis or migraines. The physicians noted that low grade glioma can cause symptoms, particularly headaches for several years before presentation, and the Veteran's clinical picture suggests he suffered from low grade glioma, accounting for slow progression of the disease. (Continued on the next page) Additionally, in a September 2021 opinion, a private physician noted that a 2011 study from the International Agency for Research on Cancer (IARC) reviewed published literature and categorized radiofrequency radiation as a possible human carcinogen, and identified studies since then that strengthened the support that EMF exposure is carcinogenic to human. The private physician opined that given the facts of this case, including the Veteran's 24 year history of EMF exposure, as well as his recurrent headaches with neurological impairment that included speech, difficulties, dizziness since service, and the lack of any other known risk for glioblastoma in this case, it is at least a likely as not that the Veteran's cause of death, cerebral glioblastoma, was a consequence of long-term (more than 20 years) of in-service exposure to high powered communications equipment that emitted electromagnetic radiation. See June 2012, May 2018, January 2019, September 2021 private treatment records. After considering the evidence in favor and against a nexus between the Veteran's cause of death and service, the Board finds the evidence is at least in equipoise on the question of whether the Veteran's cause of death, cerebral glioblastoma, was caused by in-service EMF exposures. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.