Citation Nr: A21019485 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210629-169059 DATE: December 7, 2021 ORDER The issue of entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran passed away in December 2019. The primary cause of death was glioblastoma multiforme. 2. Resolving reasonable doubt in favor of the appellant, the competent and credible evidence of record establishes that the Veteran's glioblastoma multiforme is at least as likely as not that causally related to his exposure to herbicides in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been satisfied. 38 U.S.C. §§ 1110, 1131, 1310 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1956 to August 1976. The Veteran passed away in December 2019. The appellant pursues this appeal as the Veteran's surviving spouse. The Appeals Modernization Act (AMA) automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). In this claim, the rating decision on appeal was issued in June 2021, and constitutes an initial decision; therefore, the AMA review system applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Hearing docket. In November 2021, the appellant testified under oath before the undersigned Veterans Law Judge at a virtual hearing. The Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302 (a). However, the appellant waived the 90-day evidentiary period at the November 2021 virtual hearing; therefore, the Board may proceed with adjudication. Entitlement to service connection for cause of death. The Board finds that the criteria for service connection for cause of death are met. As stated above, the Veteran passed away in December 2019. Further, it is conceded that the Veteran was exposed to herbicides in service. See VA memo, March 2021. Regarding the Veteran's primary cause of death, the Board acknowledges that there are multiple versions of the Veteran's death certificate in the claim file. For example, one death certificate, received in January 2020, states that the immediate cause of the Veteran's death is glioblastoma multiforme. See, e.g., Death certificate, January 2020. In another version of the death certificate, glioblastoma multiforme appears to be crossed out as the immediate cause of death, and in its place esophageal cancer is listed. See, e.g., Death certificate, April 2020 (noted to have been amended "3/13/2020 JB"). In a third version of the death certificate, glioblastoma multiforme is listed as the immediate cause of death, and Agent Orange and esophageal cancer are listed as conditions leading to the glioblastoma multiforme. See Death certificate, June 2020 (noted to have been amended "5/12/2020 NH"). Nevertheless, the June 2021 rating decision states that the death certificate showed the primary cause of death to be glioblastoma multiforme contributed by esophageal cancer. The Board considers this to be an implied favorable finding and is bound by the AOJ. Accordingly, the Board finds that the glioblastoma multiforme is the primary cause of death. Having established that the Veteran's primary cause of death was glioblastoma and that he was exposed to herbicides in service, the Board next turns to the question of nexus. In a July 2020 positive nexus opinion, Dr. S.L. writes: [The Veteran] was diagnosed with a brain tumor around August 2019 and the diagnosis of glioblastoma multiforme was confirmed in October 2019. . . . . [The Veteran] has not had exposure to ionizing radiation or a family history of brain cancer so it is reasonable the [sic] assume the role of the carcinogen dioxin found in Agent Orange in the development of this tumor. Studies have found that service members and civilians exposed to dioxin have increased rates of brain cancer. The Institute of Medicine, in the 2012 Update, reported increased numbers of brain cancer in workers involved in the production and application of dioxin-containing herbicides. It is my opinion that it is at least as likely as not that [the Veteran's] condition directly resulted from his exposure to Agent Orange during his time in Viet Nam. While Dr. S.L. states that "[The Veteran] has not had exposure to ionizing radiation," the Board acknowledges that treatment records indicate that the Veteran was treated using radiation for his esophageal cancer. See e.g., VA treatment record, October 2011; and Private treatment record, April 2019. While this radiation exposure is not addressed by Dr. S.L., the Board finds that the omission does not undermine the doctor's opinion. The targeted treatment to the esophagus does not suggest to the Board that there was total body exposure or exposure to the area at issue, the Veteran's brain. That is, the Board assumes that the radiation treatment for the esophageal cancer was targeted and narrow in scope. Therefore, given that Dr. S.L. provided an opinion with a well-reasoned rationale, the Board finds that the doctor's opinion is competent and credible and affords it probative weight. Finally, the Board notes that there are no negative opinions of record regarding the Veteran's cause of death. Given the above and resolving any reasonable doubt in favor of the appellant, the Board finds that it is at least as likely as not that the Veteran's primary cause of death is causally related to his conceded exposure to herbicides in service. Accordingly, the Board finds that the criteria for service connection for cause of death are met. The issue is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.