Citation Nr: 21024999 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-30 820 DATE: April 27, 2021 ORDER Entitlement to service connection for cause of death, to include as due to exposure to herbicides, is denied. FINDINGS OF FACT 1. The Veteran died in November 2014. The immediate cause of death stated on his death certificate is intracranial hemorrhage due to or as a consequence of brain metastasis from unknown primary neoplasm. 2. A subsequent autopsy revealed that the Veteran’s final pathologic diagnosis was glioblastoma multiforme of brain, multicentric. 3. The evidence of record shows that the Veteran’s brain cancer was not a service-connected disability at the time of death. 4. The cancer of the brain which caused or substantially contributed to the Veteran’s death was not demonstrated in service, is not shown to be due to an in-service occurrence or event and cancer was first shown many years post-service. 5. Exposure to an herbicide agent, to include Agent Orange, was not the immediate or underlying cause of death or etiologically related thereto; nor did it contribute substantially or materially to the Veteran’s cause of death, combine to cause death, or aid or lend assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death, to include as a result of exposure to an herbicide agent, to include Agent Orange, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312, 3.313 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1970 to August 1974. His awards and decorations include the Combat Action Ribbon. The Veteran had service in the Republic of Vietnam. The Veteran died in November 2014. The appellant is the Veteran’s surviving spouse. A hearing was conducted by Travel Board in March 2019 before the undersigned Veteran’s Law Judge, at which the appellant and the Veteran’s daughter testified; a transcript is of record. The Board previously remanded this case for additional development in March 2020. The matter has now returned to the Board for appellate review. Entitlement to service connection for cause of death, to include as due to exposure to herbicides Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. In order for service connection for the cause of a veteran’s death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service or one which was proximately due to or the result of a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Determinations as to whether service connection may be granted for a disability which caused or contributed to a veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of direct service connection. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection for certain chronic diseases, including cancers, may be presumed where demonstrated to a compensable degree within one year following qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin’s lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e). The Veteran died in November 2014; the immediate cause of death listed on his death certificate is intracranial hemorrhage noted as due to or as a consequence of brain metastasis from unknown primary neoplasm. Notably, a subsequent autopsy revealed that the Veteran’s final pathologic diagnosis was glioblastoma multiforme of brain, multicentric. At the time of his death, the Veteran did not have any service-connected disabilities. The appellant asserts that the Veteran’s herbicide exposure was directly related to his brain cancer, which contributed to the Veteran’s death. However, for the reasons discussed below the Board finds this disability is not etiologically related to his active service. VA has previously confirmed the Veteran’s exposure to Agent Orange from the Veteran’s service in the Republic of Vietnam while on active duty. See May 2016 Statement of the Case (SOC). The remaining question is therefore whether the Veteran’s cancer of the brain was due to this in-service herbicide exposure. Specific diseases are presumed due to service if they become manifest in an herbicide-exposed veteran. 38 C.F.R. § 3.309(e). Cancer of the brain and or glioblastoma are not among the list of the diseases presumed due to herbicide exposure. See 38 C.F.R. § 3.309(e). Therefore, the presumptive provisions of 38 C.F.R. § 3.309(e) do not apply. Turning to the record, VA and private treatment records from October 2014 reveal that the at the time of the Veteran’s admission to hospice care he was diagnosed with a brain hemorrhage and metastatic lesions to the brain in at least two locations; primary malignancy of unknown origin. An autopsy report from November 2014 revealed that the final pathologic diagnosis was glioblastoma multiforme of brain, multicentric. In March 2019, the appellant and the Veteran’s daughter testified at a Board hearing. The appellant testified that the Veteran had a chronic rash across his chest, chronic migraines, and chronic back pain. Further, she explained that the Veteran was in good health until 2014 when his condition became worse. The appellant described that the Veteran did not exhibit any symptoms until 3 weeks before he passed away. Specifically, the Veteran had a lot of numbness on his entire left side. At the time, the appellant related, it was suggested that the Veteran had a Stage 4 cancer that metastasized to his brain. Ultimately, the Veteran did not have any other cancers; he only had the brain tumor. Pursuant to the Board’s March 2020 remand, a VA medical opinion was obtained. The examiner opined that the Veteran’s brain cancer was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion the examiner explained that a review of the record revealed that private treatment records from October 2014 showed that the Veteran had a massive intraparenchymal hemorrhage with masses noted on imaging studies consistent with malignancy. The primary site of malignancy and histologic type was not determined. Moreover, later pathology indicated that the Veteran had glioblastoma multiform of the brain, multi-centric with hemorrhage of the pons, midbrain, and pons. In particular, the examiner noted a review of the articles submitted in support of the claim. However, the examiner explained that the most recent articles did not clearly establish a nexus between glioblastoma multiform and exposure to Agent Orange and its component chemicals. Further, after a review of the records, in totality, the examiner explained that the articles supported the current list of presumptive conditions associated with Agent Orange. The examiner cited to additional literature which discussed VA’s treatment of glioblastoma and exposure to chemicals. Ultimately, the examiner found that the literature did not support establishing a nexus between glioblastoma and chemical exposure because the outcome is so rare and the information concerning a possible association is imprecise. The Board acknowledges that the appellant has submitted various articles in support of this claim, which were specifically reviewed by the April 2020 examiner. However, as these articles only provide general information with respect to chemical exposure and brain cancer, and do not offer any insight into the specific facts of the Veteran’s contentions, the Board affords these articles little probative value. Likewise, the Board acknowledges that the appellant submitted a May 2020 statement citing to prior Board decision that granted service connection for glioblastoma based on exposure to herbicides. However, in the instant case the appellant has not submitted competent medical evidence that states that the Veteran’s glioblastoma is related to service, to include as due to exposure to herbicides. Moreover, the Board emphasizes that prior board decisions are determined on a case by case basis, based on the facts found in that case, and are not precedential. 38 C.F.R. § 20.1303. Thus, the Board does not find this persuasive evidence of a medical nexus between the Veteran’s active military service and glioblastoma. As stated earlier in this decision, service connection for certain chronic diseases may be presumed if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Included among chronic diseases under § 3.309 (a) are tumors of the brain. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The evidence shows that the Veteran was diagnosed with a brain tumor in or about October 2014. Consequently, the Veteran’s brain tumor did not manifest to a degree of 10 percent or more within one year of separation. The record does not indicate that it was identified earlier than 2014 and the Veteran separated from active service in 1974. Therefore, the presumption of service connection for brain cancer as a chronic disease is not available to the Veteran. Additionally, because cancer of the brain was never identified in service, it would be impossible to establish continuity of symptomatology following upon service and the subsequent record does not reflect this. The Board acknowledges that the appellant sincerely believes that the Veteran’s cancer of the brain was the result confirmed in-service exposure to herbicides. However, the appellant is not shown to have the medical expertise to competently render an independent medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the lay assertions of etiology of record are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection for the cause of the Veteran’s death. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board finds that the Veteran died of intracranial hemorrhage due to or as a consequence of brain metastasis from unknown primary neoplasm, with a final pathology of glioblastoma multiforme of the brain. This condition was not service-connected at the time of the Veteran’s death, and the competent medical evidence of record does not indicate that it was incurred during or otherwise related to his active service. Furthermore, while the Veteran is confirmed to have been exposed to herbicides in service, the medical advisory opinion determined it is unlikely such exposure caused his glioblastoma. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.