Citation Nr: 21015152 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-15 986 DATE: March 16, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in August 2009 due to glioblastoma multiforme. 2. A disability of service origin was not a principal or contributory cause of the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1977 to June 2001. He died in 2009 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2014, the Board remanded the case for additional development and, in May 2018, denied service connection for the cause of the Veteran’s death. The appellant appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted the parties’ Joint Motion for Remand (JMR), which vacated the Board’s decision and remanded the issue for further consideration. In October 2020, the Board again remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for the cause of the Veteran’s death. Service connection for the cause of a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (c)(1). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as brain tumors, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in August 2009 due to a glioblastoma multiforme (brain tumor), which he was noted to have had for 18 months. His death certificate does not identify any other contributing causes of death. In previously pursuing this claim, the appellant contended that the Veteran’s fatal brain tumor had its onset during, or within one year of, his retirement from service or, in the alternative, was the result of exposure to chemicals or ionizing radiation during service. As a preliminary matter, the Board notes that the September 2019 JMR was narrow in scope. Specifically, it moved the Court to vacate the Board’s May 2018 decision as to the denial of service connection for the cause of the Veteran’s death only to the extent that it failed to (1) provide an adequate statement of reasons or bases as to whether his service-connected disabilities, including velopharyngeal insufficiency and bronchial asthma, were a principal or contributory cause of death as contemplated in 38 C.F.R. § 3.312(c)(3), and (2) ensure compliance with November 2014 Board remand directives that the examiner offering an etiological opinion address whether the headaches the Veteran claimed to have at the end of service and right after his retirement from service are related to his later-diagnosed brain tumor. The JMR also directed that, in obtaining such opinion, the examiner should also address whether the Veteran’s reports of memory loss and mood changes as documented in May 2000 and September 2000 service treatment records (STRs) are related to his later-diagnosed brain tumor. However, the JMR found no error with the Board’s determination that the Veteran’s cause of death from glioblastoma was unrelated to his exposure to chemicals or ionizing radiation during service. In this regard, the appellant’s representative who entered into the JMR is an attorney in a law firm with extensive experience in VA litigation. “[W]hen an attorney agrees to a [JMR] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier [v. Nicholson, 19 Vet. App. 414,] 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed.” Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Based on such procedural history, the fact that no additional evidence or argument in regard to the appellant’s earlier allegation that the Veteran’s cause of death from glioblastoma was related to his exposure to chemicals or ionizing radiation during service, and in the interest of administrative efficiency, the Board will proceed by addressing only the aspects of its May 2018 decision that the JMR identified as inadequate. Id. In this regard, the Board first notes that the September 2019 JMR found that the May 2018 decision did not explain whether the Veteran’s service-connected disabilities, including velopharyngeal insufficiency and bronchial asthma, were a principal or contributory cause of death as contemplated in 38 C.F.R. § 3.312(c)(3). However, as noted by the Board at such time and again herein, the appellant has not contended, and the evidence does not show, that such service-connected disabilities were a principal or contributory cause of his death. Specifically, the record is entirely void of any indication that such disabilities resulted in debilitating effects and general impairment of health to an extent that the Veteran was materially less capable of resisting the effects of other diseases or injuries primarily causing death. Id.; Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, as noted previously, the appellant claims that the Veteran’s fatal brain tumor had its onset during, or within one year of, his retirement from service. In this regard, she contends that he complained of headaches during service until the time of his death. Specifically, she testified that she recalls him complaining of headaches with sharp pain in 1996 and stated that the right side of his head seemed larger. The Veteran also stated in a February 2009 application for benefits that he had “extreme headaches immediately after serving in Kosovo” in 1999. In this regard, the Board notes that, apart from a December 1979 STR showing the Veteran’s complaints of headaches for one week, the record is silent as to complaints of headaches or chronic head pain prior to the Veteran’s diagnosis glioblastoma multiforme in November 2007. Indeed, the record shows multiple instances during service wherein the Veteran specifically denied chronic headaches or head pain. See March 1999 and December 2000 STRs. Furthermore, he did not report any chronic headaches at his January 2001 retirement examination or for several years thereafter, until he reported severe head pain in November 2007, leading to the diagnosis at issue. Moreover, the Veteran filed for service connection for numerous conditions immediately following his retirement, but made no mention of headaches. The appellant’s contentions and the Veteran’s statements regarding the onset and chronicity of his head pain are not consistent with each other and both are contradicted by the contemporaneous records. Furthermore, there is no medical indication at any point in the record that the Veteran’s head became larger during or following service. Further, in April 2012, a VA clinician acknowledged the appellant’s reports of the Veteran’s chronic headaches, but found that they were not supported by the medical evidence of record. She noted, however, that a cause-effect relationship between headache and brain tumor has not been established to date by the preponderance of the medical literature, pain receptors in the brain parenchyma are absent, and tumor-headache association is not universal in patients. Therefore, the clinician concluded that a connection between the tumor and any possible headaches was not established. She also noted that the typical survival period from the time of diagnosis of a glioblastoma is 1-2 years and it is thus unlikely that the Veteran’s tumor would have manifested during service, which was over 6 years prior to the diagnosis and 8 years prior to his death. In July 2017, another VA clinician concurred with the April 2012 VA examiner that it is less likely than not that the Veteran’s tumor had been present while the Veteran was still in service and was not diagnosed until some six years after his separation from the military. Thus, both opinions concluded that it was less likely than not that the tumor had its onset during service or was otherwise related to service. However, in the September 2019 JMR, the parties observed that the April 2012 opinion noted that the “single most prevalent symptom [of] glioblastoma is a progressive memory, personality, or neurological deficit due to temporal and frontal lobe involvement;” however, the examiner did not address the Veteran’s May 2000 and September 2000 service treatment records that reflected that he reported memory loss and mood changes. Additionally, the parties found that the July 2017 VA examiner did not specifically address whether the headaches the Veteran claimed to have had at the end of service and right after his retirement from service are related to his later-diagnosed brain tumor as directed by the Board in the November 2014 Remand. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on a veteran the right to VA’s compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Consequently, the Board remanded the case in October 2020 in order to obtain an addendum opinion addressing such matters. In November 2020, after a review of the record and consideration of relevant medical literature, a VA examiner opined that the Veteran’s brain tumor was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, she noted he retired from active duty on June 30, 2001, was diagnosed with right temporal lobe glioblastoma multiforme in November 2007, and died in August 2009. The examiner further observed that medical literature provided that “the estimated age of the glioblastomas at diagnosis (using mathematical growth models) was median 330 days (11 months) but ranging from 156 days (5 months) to 776 days (2.1 years).” Further, “[w]ith optimal treatment, the median survival of patients with glioblastoma is about 12 to 15 months” and “those aged 40-60 years have an 18-month survival rate of 20%.” Thus, the examiner noted that the clinical history of a patient with glioblastoma multiforme is usually short, less than 3 months in more than 50 percentage of patients. Thus, she stated that she concurred with the prior opinions that it is less likely than not that the Veteran’s glioblastoma had its onset during or within one year of his separation from service in 2001. With respect to whether the headaches the Veteran claimed to have had at the end of service and right after his retirement from service are related to his later-diagnosed brain tumor, the examiner observed that, while he reported in his initial claim for service connection for glioblastoma that he “suffered with extreme headaches immediately after serving in Kosovo,” his treatment records were negative for evidence of ongoing headaches over time. In this regard, she noted that, at the time of his January 2001 optometric examination, he answered “no” for “do you or did you have frequent or recurrent headaches?” Moreover, the examiner again indicated that the Veteran was diagnosed with glioblastoma in November 2007, which was over six years after he separated from service, and, according to the mathematical growth models of glioblastoma, the maximum age of glioblastoma at time of diagnosis is 776 days or about two years, which would correspond to September 2005 as the earliest onset of glioblastoma in the Veteran. She further indicated that the medical literature states that “headache associated with intracranial neoplasms (glioblastoma) is usually a late complaint and not an isolated finding. In a study from the United States, the mean time to diagnosis in the emergency department (ED) from onset of any symptom was 86.3 days, and 104.5 days for headache.” In contrast, she noted that the Veteran’s claimed headaches in 2000/2001 occurred 2,000 days prior to his diagnosis of intracranial neoplasm (glioblastoma) in the ED. Given the time course and rapid growth rate of glioblastoma, it is exceedingly unlikely that the Veteran’s reported headaches immediately after serving in Kosovo could possibly be related to his much later diagnosed glioblastoma. In regard to whether the Veteran’s reports of memory loss and mood changes as documented in May 2000 and September 2000 STRs are related to his later-diagnosed brain tumor in light of the April 2012 VA examiner’s statement that the “single most prevalent symptom [of] glioblastoma is a progressive memory, personality, or neurological deficit due to temporal and frontal lobe involvement,” the examiner observed that the Veteran had a positive PPD skin test (tuberculosis test) in early 2000 after returning from Kosovo/Albania and was started on six months of isoniazid (INH) on April 3, 2000. In this regard, she noted that adverse drug reactions/side effects of INH include: hepatitis, jaundice, lupus-like syndrome, rheumatic disease, fever, memory impairment, paresthesia, peripheral neuropathy, and psychosis. In this regard, the examiner noted that, during the period the Veteran was taking INH, he was regularly questioned regarding these symptoms, and, in a note from the INH refill consult dated May 1, 2000, the Veteran reported fatigue/weakness, feeling of ill being, fever, joint pain, loss of memory and “flu-like symptoms” that “come and go.” In a subsequent INH refill consult dated May 26, 2000, the Veteran denied any of the previous symptoms except for joint swelling. Likewise, his history dated November 20, 2000, after he completed INH, was negative for any memory complaints. Thus, the examiner found that the Veteran had no ongoing history of memory complaints, and only reported such when questioned about medication side effects during his treatment with INH from April 2000 to October 2000. Furthermore, she observed that the memory complaints in 2000 occurred 2,500 days prior to his glioblastoma diagnosis, making it exceedingly unlikely that they could possibly be related given the rapid growth rate of glioblastoma. Thus, the examiner concluded that it is less likely than not that the Veteran’s fatal brain tumor, diagnosed as glioblastoma in November 2007, had its onset in or is otherwise related to, his military service. Rather, she found, based on the medical literature and mathematical growth models, it is extremely unlikely that the onset of the Veteran’s glioblastoma was prior to 2005. In this regard, the examiner found that his isolated complaints of headaches and memory loss related to INH in 2000 or 2001, without persistent and worsening symptoms, would not be consistent with glioblastoma. The Board affords great probative weight to the November 2020 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the Veteran’s medical history and relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Furthermore, as the examiner fully addressed the Board’s inquiries, there has been substantial compliance with the JMR and October 2020 remand directives. See Stegall, supra. There is also no medical opinion to the contrary of record. The Board has also considered the appellant’s statements that the Veteran’s fatal glioblastoma multiforme is related to service. However, it has not been shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a brain tumor is a matter not capable of lay observation, and requires medical expertise to determine. Specifically, the question of causation of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the appellant’s opinion as to the etiology of the Veteran’s cause of death is not competent evidence and, therefore, is afforded no probative weight. Therefore, while the Board is sympathetic to the appellant, the evidence of record does not show that the glioblastoma multiforme that caused the Veteran’s death began during his service or within a year of separation. Accordingly, a disability of service origin was not a principal or contributory cause of the Veteran’s death, and service connection for the cause of his death is not warranted. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim for service connection for the cause of the Veteran’s death, that doctrine is not applicable and her claim must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.