Citation Nr: 21030002 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 07-21 604 DATE: May 17, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran has active service from November 1964 to November 1968. The Veteran passed away in September 1985. His spouse is the appellant. This case is before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant and the Veteran's son appeared before the undersigned Veterans' Law Judge at a March 2010 hearing. The Board issued an August 2010 decision, finding new and material evidence had been presented, reopening the Appellant's claim. The Board also denied the claim of service connection for the Veteran's cause of death. The Appellant appealed the August 2010 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a February 2011 Joint Motion for Remand (JMR), the Court remanded the Board's August 2010 decision (2/11/2011 Remand BVA or CAVC). The JMR directed the Board to address whether a medical opinion was needed to address whether the Veteran's glioblastoma multiforme could have been a sarcoma, a presumptive disease associated with herbicide exposure. There is no indication that the JMR disturbed the August 2010 decision finding new and material evidence, reopening the claim. Pursuant to the JMR, the Board remanded the matter in November 2011, for a medical opinion and also development as to whether the Appellant met the criteria as a surviving spouse. By a May 2017 decision, the Board found the criteria for recognition of the Appellant as the Veteran's surviving spouse had been met and again remanded the issue of service connection for the cause of the Veteran's death for additional development. The matter was returned to the Board and again remanded in August 2019 to obtain an adequate opinion by an oncologist, in accordance with previous remand directives, and to address documentary evidence presented by the Appellant. An October 2019 addendum opinion is of record. Although the opinion is thorough, specific contentions of record are not addressed. Accordingly, while additional delay is regrettable, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Appellant contends that the Veteran's death was the result of a brain tumor and cardiac arrest, caused by service, to include exposure to herbicide agents. The Appellant contends the Veteran's brain tumor could have been a soft-tissue sarcoma, warranting presumptive service connection due to herbicide agent exposure (02/09/2007 VA 21-4138 Statement In Support of Claim; 10/11/2006 VA 21-4138 Statement In Support of Claim; 01/08/2001; 10/17/2011 Third Party Correspondence). Herbicide agent exposure has been conceded because the Veteran had service in Vietnam during the applicable presumptive period (10/08/2016 Certificate of Release or Discharge From Active Duty). The Veteran's death certificate indicates the immediate cause of death was cardiac arrest due to, or as a consequence of, a brain tumor (12/08/2000 Death Certificate). A review of the evidence pertaining to the Veteran's brain tumor includes a histological report confirming the Veteran's tumor was a glioblastoma multiforme 3/12/2010 VA 10-1000 Hospital Summary and/or the Compensation and Pension Exam Report, pg. 1). During the March 2010 hearing, the Veteran's son, a physician (3/03/2010 Hearing Testimony, pg. 9), testified to the evolution of the treating physician's efforts to type the Veteran's tumor. That evolution went from brain tumor, to hemangioma or a neuroblastoma, then a Glioblastoma Multiforme. The Veteran's son suggested that the treating physician indicated it was not a glioblastoma multiforme, but rather a soft tissue sarcoma or something else. That contention was addressed by the October 2019 examiner. The Veteran's son also testified that the way the Veteran was treated suggests two different types of cancer, evidenced by the treating physicians pointing the chemotherapy at the tissue where the cancer was, but also at the scull bone. Additionally, the Veteran's son asked the Board to consider the level of sophistication of medical understanding of cancer in 1985, and that the times may have impacted the terminology used. These contentions were not specifically addressed in the October 2019 opinion. The appellant also presented research for consideration (10/11/2006 Medical Treatment Record - Non-Government Facility). These articles do not address the etiology of Glioblastoma, or any relationship to herbicide exposure. In that respect are of limited probative value. With regard to treatment, however, an article mentioned that treatment benefits were established by studies in the 1970s, but since that time there have been few advances in the treatment of malignant gliomas (GBM and anaplastic astrocytoma). The Board finds this supportive of the Veteran's son's assertion with regard to the level of understanding of the Veteran's cancer in 1985, and to that extent, the article is probative (10/11/2006 Medical Treatment Record - Non-Government Facility, pg. 3). Additionally, in the Appellant's written brief presentation, documentary evidence was presented reflecting that the cause of GBM is not clear. The provided excerpt suggests experts are still trying to understand what causes GBM. Astrocytes are usually very controlled and organized cells. Something happens that causes them to start multiplying and forming tumors. It is not clear what causes this, but researchers have found a number of changes, or mutations, in genes within the tumor cells. Some of these mutations affect the ability of the cells to regulate themselves. The Appellant's brief also notes that TCDD, classified as a human carcinogen by the U.S. Environmental Protection Agency (EPA), readily enters the body due to its fat-soluble nature. The dioxin enters the body by attaching to a protein called the aryl hydrocarbon receptor (AhR), a transcription factor. When TCDD binds to AhR, the protein moves to the nucleus where it influences gene expression. While the provider stated that this Veteran's GBM was not affected by exposure to herbicides, it must be remembered that herbicides can change, damage or alter the DNA (4/21/2021 Appellate Brief). No medical opinions of record have addressed the assertions set forth in the Appellate Brief. The Appellant also indicated that the Veteran does not have a history of cancer in his family (3/12/2010 Correspondence, pg. 4). The examiner did not address whether an absence of a family history of cancer weighs in favor of the Appellant's claim. Because these contentions have not been addressed, the medical evidence of record is not sufficient for the Board to consider and weigh against other evidence of record. Accordingly, remand is required for an addendum opinion. The matters are REMANDED for the following action: Forward the claims file to the October 2019 examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that the Veteran's brain tumor is a result of service or any incident occurring during service, to include herbicide exposure. The examiner should address the manner in which the Veteran's brain tumor was treated as described by the Veteran's son, a physician. The examiner should address whether the described pointing of the chemotherapy at the tissue where the cancer was, and at the scull bone, suggests the presence of two different types of cancer or brain tumor. If so, is it as likely as not that any other tumor would have been a soft tissue sarcoma? The examiner should address the Appellant's assertion that the Veteran does not have a history of cancer in his family (3/12/2010 Correspondence, pg. 4), specifically, whether an absence of a family history suggests the Veteran's brain tumor is attributable to in-service herbicide exposure. The examiner should further address whether the level of sophistication of medical understanding of cancer, specifically brain tumors, in 1985, may have impacted the terminology used, resulting in inaccurate characterization of the Veteran's tumor. In this regard, the examiner should address the article of record (10/11/2006 Medical Treatment Record - Non-Government Facility, pg. 3, http://www.sdneurosurgeon.com/diseases/glioblastoma2.html ) that mentions the treatment benefits were established by studies in the 1970's, but since that time, there have been few advances in the treatment of malignant gliomas (GBM and anaplastic astrocytoma). The examiner should address any impact the forgoing has in formulating an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that the Veteran's brain tumor is a result of service or any incident occurring during service, to include conceded herbicide exposure. Finally, the examiner should address the Appellant's contention that the cause of Glioblastoma Multiforme is not clear, taken in conjunction with the assertion that herbicide exposure can change, damage or alter one's DNA (4/21/2021 Appellate Brief). The examiner should address any impact the foregoing has in formulating an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that the Veteran's brain tumor is a result of service or any incident occurring during service, to include conceded herbicide exposure. The examiner should reconcile any conflicting medical evidence of record to the extent possible. (Continued on the next page) A comprehensive rationale for all opinions expressed must be provided. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.