Citation Nr: 21067192 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-38 652 DATE: November 3, 2021 ORDER Entitlement to service connection for glioblastoma multiforme (brain cancer) for substitution purposes is granted. REFERRED The Veteran's representative has raised the claim of service connection for the cause of the Veteran's death. This matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT The Veteran's brain cancer was at least as likely as not related to the Veteran's exposure to environmental hazards in service. CONCLUSION OF LAW The criteria for service connection for glioblastoma multiforme (brain cancer) for accrued benefits or substitution purposes are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1984 to November 1993; and with the U.S. Army/Army National Guard was ordered to active duty in support of Operation Iraqi Freedom from June 2007 to May 2008; ordered to active duty in support of Operation Enduring Freedom from September 2008 to August 2009; and served on active duty from August 2009 to January 2010. The Veteran served in the Southwest Asia theater of operations and, in pertinent part, received the Navy and Marine Expeditionary Medal; Navy Unit Commendation; Distinguished Service Cross, Global War on Terrorism Service Medal and the Iraq Campaign Medal with Campaign Star. His DD 214 indicates that he served in a designated imminent danger pay area with service in Iraq from August 2007 to April 2008. The Veteran died in May 2015. The Veteran's surviving spouse is the substitute claimant. This matter comes before the Board of Veterans' Appeals (Board) from an August 2014 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The surviving spouse testified at a Board hearing in November 2018. The transcript is of record. In April 2019, the Board remanded this matter for further development. In June 2020, the Board denied the appellant's claim for service connection for the Veteran's brain cancer. In February 2021, the U.S. Court of Appeals for Veterans Claims (Court) in accordance with a February 2021 joint motion for remand (JMR) vacated the June 2020 Board decision. The parties to the JMR found that the August 2019 VA medical opinion, which the Board relied on for its decision, was inadequate. Specifically, the JMR noted that the August 2019 VA medical opinion had a conclusory rationale, which merely referenced medical literature without sufficiently setting forth how the principles within that literature related to the Veteran's specific circumstances. The Board notes that the February 2021 JMR directed the Board to remand this matter for another VA medical opinion. However, as discussed below, the Board, pursuant to this decision, is granting service connection for brain cancer based in part on additional evidence submitted on the appellant's behalf subsequent to the Court's decision. The Board finds this grant to be a full grant of benefits sought on appeal, and finds further that additional development is therefore unnecessary. See generally Mariano v. Principi, 17 Vet. App. 305, 312 (2003. The appellant's representative argued in September 2021, that the Board must also grant entitlement to service connection for the Veteran's cause of death because the issue of the Veteran's brain cancer and his death are inextricably intertwined. The AOJ denied the appellant's claim for entitlement to service connection for cause of death in September 2015. The appellant did not appeal this decision, nor was new and material evidence received within one year of the September 2015 decision. Thus, the September 2015 decision is deemed final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board does not find the matter of the Veteran's cause of death is inextricably intertwined with the claim for service connection for his brain cancer currently on appeal. To the extent that it is a raised claim, it is referred to the AOJ for appropriate action. 1. Entitlement to service connection for a brain tumor The appellant testified at the November 2018 Board hearing that the Veteran's exposure to burn pits while serving in Iraq caused his brain tumor. Initially, the Board notes that the Veteran was diagnosed with brain cancer in May 2014. The evidence indicates that his brain cancer eventually caused the Veteran's death. The Veteran served in Iraq and therefore exposure to burn pits is conceded. Therefore, the issue before the Board is whether the Veteran's brain cancer is etiologically related to his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For specific enumerated diseases designated as "chronic" (such as brain tumors) there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more generally within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The Veteran's records indicate that the Veteran served in the Southwest Asia theater. Under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). The term "qualifying chronic disability" means, in pertinent part, a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i). Such chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of at least 10 percent or more no later than December 31, 2026 and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317 (a)(1); see also October 27, 2021 VA Office of Public and Intergovernmental Affairs News Release. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include neurological signs or symptoms. 38 C.F.R. § 3.317 (b)(6). Compensation shall not be paid, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf war; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or events that occurred between the appellant's most recent departure from active duty in the Southwest Theater of Operations during the Persian Gulf war and the onset of the illness; or if there is affirmative evidence that the illness is the result of the appellant's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (c). In addition to the presumptive of service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness, disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness, certain disabilities related to service in the Persian Gulf War may be service connected. 38 U.S.C. § 1117. A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3. 317 (e)(2). The Persian Gulf War is defined as beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2 (i). On August 5, 2021, VA issued an interim final rule for respiratory conditions due to exposure to particulate matter. The regulations became effective on August 5, 2021. The final interim rule establishes presumptive service connection for asthma, rhinitis, and sinusitis, to include rhinosinusitis. Specifically, added 38 C.F.R. § 3.320 states that diseases listed (asthma, rhinitis, and sinusitis, to include rhinosinusitis) shall be service connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service. See 86 Fed. Reg. 42724 -42733 (August 5, 2021). Upon consideration of the evidence of record at the time of the Veteran's death, the Board finds the preponderance of the evidence is against the claim for service connection for brain cancer on a presumptive basis pursuant to 38 C.F.R. §§ 3.307 and 3.309 since there is no competent evidence that the brain cancer was diagnosed within one year following the Veteran's January 2010 discharge from active duty service. Rather, as noted above, the record indicates a diagnosis of brain cancer in May 2014. Also, the fatal disease is not a qualifying chronic disability resulting from an undiagnosed illness or an unexplained chronic multi-symptom illness as there is a clear diagnosis. Therefore, the remaining question before the Board is whether service connection may be granted on a direct service connection basis. Turning to the pertinent evidence, the Veteran's service treatment records do not indicate any complaint, treatment, or diagnosis related to brain cancer. In January 2015, the Chief of Hematology and Oncology at a VA medical center provided a statement on behalf of the Veteran. The physician stated that the Veteran had been diagnosed with glioblastoma multiforme. She also stated that this brain tumor had been associated with exposure to petroleum products. The physician cited a study from the American Journal of Industrial Medicine from 2002. She concluded that since petroleum products are waste products in burn pits, the Veteran's exposure during military service may have caused glioblastoma. In September 2015, VA obtained a medical opinion. The examiner opined that the Veteran's glioblastoma was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner noted that the Veteran did serve with exposure to burn pits. The examiner, addressing the noted VA physician's opinion, stated that the reasoning provided did not rise to the level of at least as likely as not a causal or chronically aggravating relationship. Additional studies found no relationship between petrochemical occupation and increased brain cancer risk. The examiner concluded that with the current medical available medical evidence, it is less likely as not that the Veteran's exposure to a burn pit was a causal or chronically aggravating factor in the development of his glioblastoma leading to his death. In August 2019, VA obtain another medical opinion. The examiner opined that the Veteran's glioblastoma was less likely as not proximately due to or caused by Gulf War environmental hazards. The examiner reasoned that while the January 2015 VA examiner's opinion was well meaning, it was not supported by current medical literature and studies. Notably, the examiner stated that the studies from 2002 are out of date and not consistent with current studies. The examiner stated that research does not show evidence of long-term health problems from exposure to Southwest Asia environmental hazards. The examiner cited the Institute of Medicine (IOM) October 31, 2011 report "Long-Term Health Consequences of Exposure to Burn Pits and Environmental Hazards (dust, sand) In Iraq and Afghanistan." The examiner explained the study found limited but suggestive evidence of a link between exposure to combustion products and reduced lung function in various groups thought to be similar to deployed service members, such as firefighters and incinerator workers. The findings focused on pulmonary function and noted that further studies were required. The examiner noted that the report found inadequate or insufficient evidence of a relation between exposure to combustion products and environmental hazards and cancer, respiratory diseases, circulatory diseases, neurological diseases, and adverse reproductive development outcomes. In August 2021, a board-certified radiation oncologist (Dr. K.), provided a private medical opinion. Dr. K opinioned that the Veteran's diagnosis of glioblastoma multiforme and his resulting death was at least as likely as not caused by his exposure to dioxins and polychlorinated biphenyls (PCBs) from burn pit exposure while on active duty. The examiner reasoned that round the clock active burn pits were the source of enormous quantities of diverse toxins and human carcinogens, including dioxins- a class of chemicals which encompasses PCBs, polycyclic aromatic hydrocarbons (PAH) and volatile organic compound (VOC). Dioxins have been proven to be present within the blood serum of burn pit-exposed Iraq War veterans. The examiner noted that the overwhelming majority (95 percent) of brain cancers are caused by environmental factors and are not genetically inherited. Dr. K. noted that the medical and scientific link between dioxins and bran cancers is evident from multiple aspects. Basic lab studies show that the biological pathway common in many dioxin-caused malignancies is also present in glioblastoma multiforme. Dioxins are also shown to result in more aggressive brain cancers. Dioxins belongs to a broad class of chemically-related PCBs and multiple epidemiologic studies have shown the exposure to PCBs causes several cancers, including brain cancers. Dr. K. found that the Veteran was diagnosed 7 years following the timeline of his exposure to burn pits, which is consistent with the average latency range for glioblastoma multiforme of 7-11 years. Dr. K. noted the Veteran had no known personal risk factors, no family history of brain cancers, no history of exposure to ionizing radiation, and no rare genetic disorders. Dr. K. explained the Veteran had no known exposure to other carcinogens before or since his military service and his diagnosis at age 51 is 13 years younger than the average for GBM, which supports exposure to an aggressive carcinogen as the trigger. Dr. K. discounted the September 2015 and August 2019 opinions of the VA family medical practitioners noting that each reached their perfunctory conclusion without expertise analysis of any of the known medical literature regarding exposures to dioxins or PCBs and their link to brain cancers. Dr. K. noted that the September 2015 examiner's single argument is a 2005 study that was entirely irrelevant regarding burn pits and appeared to be uninformed as to the carcinogens of concern regarding burn pits and did not address those; and the August 2019 VA examiner's opinion that at that time research showed no evidence of long-term health problems from exposure to Southwest Asia environmental hazards is contradicted by countless contemporary studies discussed in his opinion, and that the examiner provided no medical analysis in this case, not even mentioning the specific toxicants of concern from burn pits relevant to this case, Initially, the Board finds the September 2015 VA examination is inadequate in that the examiner's rationale, in part, referred to "additional studies" that refute the study cited by the January 2015 VA examiner. The September 2015 VA medical examiner did not cite to these studies or provide any other additional medical rationale as to why the Veteran's brain tumor was not related to his service. Therefore, the September 2015 VA examiner's opinion no probative value. The Board finds that January 2015 physician's opinion provides limited probative value. Although the Board knowledge's the physician's expertise in the field of cancer treatment, her opinion only noted a possible association between the Veteran's brain tumor and the Veteran's exposure to burn pits, specifically, the Veteran's exposure "may have caused [the] glioblastoma." Whether or not something may have caused cancer is not the standard required for service connection. The Board notes that the August 2019 VA examiner checked the box that indicated a positive nexus between the Veteran's service and his claimed disability. However, the Board finds this to be harmless error, the examiner's reasoning clearly indicates a negative opinion. The examiner concludes his rationale by clearly stated that the Veteran's glioblastoma was less likely than not related to environmental hazards in the Gulf War. As such, the Board finds checking the box was harmless error and did not cause any ambiguity or confusion in the VA examiner's opinion. Nonetheless, as noted above, the Board previous decision denying the Veteran's claim was vacated for relying on the August 2019 VA examination, which was deemed inadequate. As such, the August 2019 has limited probative value. The Board finds that Dr. K.'s august 2021 opinion is probative, because it is based on an accurate medical history and provides a detailed explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, the Veteran had a diagnosis of glioblastoma and was exposed to burn pits. The Board finds that the Veteran's glioblastoma was etiologically related to his exposure to burn pits because the most probative evidence in the record, the August 2021 medical opinion by Dr. K., found that the Veteran's glioblastoma was related to exposure to Gulf War environmental hazards. Therefore, service connection on a direct basis is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.