Citation Nr: 21024819 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-24 261 DATE: April 26, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC), on the basis of entitlement to service connection for the cause of the Veteran’s death, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to February 1970. The Veteran died in December 2010. The appellant is the Veteran’s widow. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs Regional Office (RO). In November 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In May 2018, the Board referred this case for a medical expert opinion. That opinion was obtained in June 2018. In a May 2019 decision, the Board denied the appellant’s claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court vacated the Board’s May 2019 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). Entitlement to DIC for the cause of the Veteran’s death. The appellant asserts entitlement to service connection for the cause of the Veteran’s death. Specifically, the appellant asserts that the Veteran’s malignant brain glioma was etiologically related to in-service herbicide exposure. See November 2017 Board Hearing Transcript. As noted above, this case was remanded by the Court in a March 2020 Order. In pertinent part, the JMR found that the Board did not obtain an adequate medical opinion. Specifically, the Court found the June 2018 VHA negative medical opinion inadequate because the examiner (1) failed to engage with the specific facts and circumstances of the Veteran’s case in his rationale, including any applicable risk factors; (2) failed to consider whether the Veteran’s brain cancer was directly related to his specific herbicide exposure; and (3) relied only on evidence from studies relating to brain cancer and herbicide exposure without explaining why he believed the findings were persuasive. The Court directed the Board to obtain another medical opinion. In addition, the JMR found that the Board failed to make reasonable efforts to obtain outstanding private treatment records. In this regard, the Court noted that while the Board had requested records from May 1999 through November 2010, the AOJ had requested records only from May 1999 and November 2010. The Board notes that since the March 2020 JMR, the appellant submitted all available private treatment records. See March 2021 Letter noting all private treatment records had been obtained and submitted. Accordingly, a Remand to obtain the same private medical records would serve no useful purpose. In March 2021, the representative also submitted a February 2021 private medical opinion letter authored by Dr. Krem. Dr. Krem opined that it was “more likely than not that the [Veteran’s] herbicide/AO exposure in service caused or substantially aggravated his risk for glioma, and, as such, caused or substantially contributed to the cause of his death.” In support of this opinion, Dr. Krem noted that while brain tumors were not currently accepted as herbicide associated cancers, there was adequate published laboratory science and epidemiological data linking herbicides, or dioxins, to glioblastoma. In support of this opinion, Dr. Krem noted the Veteran’s medical, social, occupational and family history. Dr. Krem also noted an etiological association between herbicides and malignant brain glioma. With regard to Agent Orange, Dr. Krem noted that the substance was a mixture of dioxin compounds belonging to the class of chlorophenoxy herbicides, and that the use of that type of herbicide was associated with numerous types of cancers in epidemiological studies. The most potent and carcinogenic of the dioxins was noted as 2, 3, 7, 8-Tetrachlorodibenzodioxin (TCDD). While recognizing that VA official policy did not officially recognize a link between Agent Orange and brain cancers, Dr. Krem noted that published epidemiology studies suggested that dioxin-based herbicides were linked to brain cancers including the Veteran’s glioma. Specifically, the studies were noted to show a higher risk of gliomas in patents with occupations with herbicide exposure such as farmers. In addition, Dr. Krem noted an Italian study showing an increase in brain cancers in residents exposed to TCDD after an industrial accident. With regard to Institute of Medicine (IOM) finding of inadequate or insufficient evidence linking herbicides to brain cancers, Dr. Krem noted that the same finding had been previously made between herbicides and Parkinson’s disease, a finding that was ultimately revised in 2008. Accordingly, Dr. Krem stated that negative IOM reports might exist in the face of supportive epidemiological data. Additionally, while recognizing the relative rarity of the Veteran’s type of brain cancer and, therefore, the somewhat weak epidemiological evidence both for and against finding an etiological association with herbicide exposure, Dr. Krem found that the medical literature was at least as strong, if not stronger, in support of finding of a causative relationship. Dr. Krem further noted strong laboratory evidence of dioxin-based causation of malignant brain glioma. In this regard, Dr. Krem cited molecular studies which supported a finding that dioxin activated molecular programs that were highly prone to promoting cancer in glial cells. Therefore, based on both epidemiology studies and scientific evidence, Dr. Krem opined that it was more likely than not that Agent Orange exposure contributed to glioma pathogenesis, including the Veteran’s brain tumor. Turning to other known risk factors for the development of malignant brain glioma, such risk factors included prior therapeutic radiation, decreased susceptibility to allergy, and certain single nucleotide polymorphisms in genes. Dr. Krem did note that the Veteran had a history of heavy alcohol use prior to his diagnosis, but further noted conflicting data about the role of alcohol consumption in malignant brain glioma incidence. With regard to the Veteran’s smoking history, Dr. Krem noted that the medical literature found little evidence of any association. It was also noted that the Veteran had no known family history of brain cancer or a family history suggestive of an inherited cancer syndrome, and that most cases of glioma and glioblastoma were not associated with familial inheritance. Dr. Krem agreed and relied on the rationale proffered by Dr. Mitchell in his August 2014 private medical opinion conclusion. Specifically, that the Veteran did not have other risk factors for glioma, but that he did have other conditions presumed due to and herbicide exposure including Parkinson’s disease. Dr. Krem further noted studies showing that dioxin compounds persisted in the blood stream for years after exposure, and that individuals continuously underwent residual carcinogenic effects for years and even decades after exposure. Accordingly, Dr. Krem stated that it would be quite unusual for the Veteran’s herbicide exposure to manifest within one year after discharge from service. Lastly, Dr. Krem addressed the June 2018 VA private medical opinion. In this regard, Dr. Krem noted that Dr. Inal relied completely on Update 2014 by IOM in providing a negative nexus opinion. However, Dr. Krem found that reliance on that report was too conservative and absolute, and that there was certainly published medical evidence supporting a finding that dioxin exposure caused brain cancers. Therefore, by relying solely on Update 2014, Dr. Krem found the June 2018 medical opinion unsupportable. The Board finds Dr. Krem’s February 2021 medical opinion inadequate. In this regard, Dr. Krem relied, in part, on the rationale provided by Dr. Mitchell noting the Veteran had other conditions presumed due to herbicide exposure including Parkinson’s disease, and memory, hearing and sight loss. However, a review of the evidence of record does not show that the Veteran had ever been diagnosed or treated for Parkinson’s disease. Moreover, memory, hearing and sight loss are not conditions presumed due to herbicide exposure. Therefore, as the Veteran has not been shown to have been diagnosed with a condition for which the presumption of herbicide exposure applies, Dr. Mitchell’s, and thereby Dr. Krem’s, medical opinion is based on an inaccurate factual predicate. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Accordingly, a remand is necessary to obtain another medical opinion as directed by the Court. As the issue under consideration poses a medical question of complexity, an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 38 U.S.C. § 5109. The matter is REMANDED for the following action: Obtain an expert opinion from an oncologist or other qualified expert pursuant to 38 U.S.C. § 5109 that addresses the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s malignant brain glioma was etiologically related to his service, to include his presumed exposure to herbicides? Why or why not? Any opinion offered should (1) engage with the specific facts and circumstances of the Veteran’s case, including any applicable risk factors, (2) consider whether the Veteran’s brain cancer was directly related to his specific herbicide exposure, and (3) if relying on any evidence from studies relating to brain cancer and herbicide exposure, explaining why such findings are persuasive. See March 2020 U.S. Court of Appeals for Veterans Claims Joint Motion for Remand. The Board highlights that a lack of a legal presumption may not be relied upon to preclude service connection. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The Veteran’s certificate of death lists the immediate cause of death as malignant brain glioma. The Veteran was initially suspected to have a brain tumor in May 1999, diagnosed in June 1999. Brain cancer and symptoms such as loss of hearing, memory and sight have not been recognized by VA as being associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Nevertheless, service connection may still be warranted if the evidence otherwise indicates that his malignant brain glioma is related to his active duty service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The examiner is asked to consider the August 2014 letter from the Veteran’s private physician who opined that the Veteran’s death due to brain cancer was more likely the result of his in-service herbicide exposure. The examiner is further asked to consider the February 2021 private medical opinion letter from Dr. Krem who opined that it was “more likely than not that the [Veteran’s] herbicide/AO exposure in service caused or substantially aggravated his risk for glioma, and as such caused or substantially contributed to the cause of his death.” The Board notes that it is not documented in the claims file that the Veteran was diagnosed with Parkinson’s disease. If the examiner concludes that the Veteran did have Parkinson’s disease, please explain the reason for the conclusion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.