Citation Nr: 21007944 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-33 883A DATE: February 11, 2021 REMANDED Entitlement to service connection for glioblastoma multiforme stage 4 (claimed as brain cancer), to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1969 to November 1973. The Veteran passed away in January 2012. The Appellant is the Veteran’s surviving spouse and has been substituted as the claimant. See July 2012 Deferred Rating Decision. In April 2017, the Appellant testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board conveys its sincerest regrets; however, this appeal must again be remanded to ensure compliance with its prior remand instructions, and to ensure that due process is followed and that there is a complete record upon which to decide the appeal so that every possible consideration is afforded to the Appellant. Prior to his death, the Veteran asserted that his diagnosed glioblastoma multiforme was caused by exposure to herbicide agents while stationed at Korat RTAFB in 1971 and 1972. The Veteran also claimed entitlement to SMC based on a need for aid and attendance. After the Veteran’s death, the Appellant perfected an appeal as to these claims (as a substituted claimant), as well as entitlement to service connection for the cause of the Veteran’s death, which as shown by the Veteran’s death certificate, was, in fact, glioblastoma multiforme (stage 4). Additionally, the Veteran had diabetes at the time of his death, and it has been asserted that such disability caused or contributed to the Veteran’s death. The Appellant has primarily asserted that her husband’s fatal glioblastoma was related to in-service herbicide exposure. The Board has attempted to obtain an adequate medical opinion addressing this potential relationship, but so far has been unable to do so. Most recently, an opinion obtained from an oncologist in October 2020 did not adequately address the etiological question, focusing more on whether the claim was somehow validly raised, as opposed to discussing the relevant medical theories involved in this case for this Veteran. The Appellant has also asserted that her husband’s diabetes mellitus, type II contributed or accelerated death. The opinions on file addressing this question focus largely on the impact diabetes may have on medication management in general, but are unclear as to whether this Veteran’s diabetes impacted his medication management such that it contributed to, or accelerated the Veteran’s death. Finally, upon further review, the Board recognizes that in an October 2011 letter, the Appellant indicated that the Veteran loaded nuclear weapons on B-52s while serving on active duty at Blytheville Air Force Base from March 1970 to July 1971. The private medical opinion from Dr. J.V. also noted that the Veteran, prior to his death, had asserted his disability may have resulted from exposure to radioactive materials during military service. Although during the appeal period, the Appellant clarified that her contentions were specific to establishing a relationship between the Veteran’s fatal glioblastoma and either in-service herbicide exposure or diabetes, the Board has the fundamental authority to decide a claim in the alternative. See Holbrook v. Brown, 8 Vet. App. 91 (1995). Indeed, the Veteran’s brain cancer is considered a radiogenic disease under 38 C.F.R. § 3.311, and an August 2019 VA examiner’s opinion noted that exposure to ionizing radiation is a risk factor for glioblastoma. Review of the Veteran’s service personnel records confirm duties as a weapons mechanic, loading team member and munitions disposal specialist. A July 3, 1971 Airman Performance Report noted duties such as “directing the hoisting and mating of the warhead into the AGM-28 missile,” while serving with the 65th Munitions Maintenance Squadron at Blytheville Air Force Base. On remand, in addition to obtaining adequate medical opinions addressing the role, if any, potential herbicide exposure or diabetes had in the development or treatment of the Veteran’s fatal glioblastoma, the AOJ should also take all appropriate steps under the provisions of 38 C.F.R. § 3.311 to address whether any in-service radiation exposure occurred, and if so, whether such at least as likely as not resulted in the Veteran’s post-service development of glioblastoma. The claim for special monthly compensation based on the need for aid and attendance or housebound status remains inextricably intertwined with the service-connection claims on appeal, which are being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to special monthly compensation based on the need for aid and attendance or housebound status cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Take all appropriate steps to develop the Appellant’s service-connection claim for glioblastoma multiforme (stage 4) under the provisions of 38 C.F.R. § 3.311, pertaining to claims based on exposure to ionizing radiation, to include obtaining a dose estimate. In this case, the question has been raised as to whether the Veteran had exposure to ionizing radiation in performance of his duties as a weapons mechanic and loader, given lay assertions that he loaded nuclear weapons, and personnel records showing he worked with hoisting and mating warheads into the AGM-28 missile while serving in the 65th Munitions Maintenance Squadron at Blytheville Air Force Base in 1970 and 1971. 2. Obtain a medical opinion from a VA oncologist or an outside expert in oncology other than the clinician who provided the October 2020 opinion addressing the etiology of the Veteran’s fatal glioblastoma multiforme. If an opinion from a VA oncologist or an outside expert in oncology is not feasible, or otherwise cannot be obtained, this should be made clear in the record, and the questions below should be referred to another VA physician for a response. The reviewing physician should review the entire record and furnish an opinion with respect to the following: (a.) Is it at least at likely as not (50 percent or greater probability) that the Veteran’s glioblastoma multiforme related to in-service exposure to herbicide agents or pesticides? For the purposes of providing this medical opinion, the examiner should assume as true that the Veteran was exposed to herbicide agents and pesticides during service in Thailand. The examiner is asked to consider the February 2012 private medical opinion of Dr. J.V. stating that exposures to Agent Orange may have caused, contributed to, or aggravated the Veteran’s malignant brain tumor, as well as the additional medical opinions of record and the Internet articles and references to studies submitted by the Appellant. (b.) Is it at least as likely as not that the Veteran’s diabetes caused or contributed to the Veteran’s death, to include his fatal glioblastoma multiforme? The examiner is asked to consider the February 2019 VHA opinion from Dr. D.K.H. and discuss what, if any, affects the Veteran’s diabetes had on the tolerability of dexamethasone and other steroids and whether it at least as likely as not contributed to the Veteran’s death. In this connection, the reviewing physician should indicate whether the Veteran’s diabetes resulted in general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of his fatal brain cancer, or otherwise had a material influence in accelerating death. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (Continued on Next Page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to SMC. If the benefits sought are denied, send the Appellant and her representative a Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.