Citation Nr: 22017472 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-02 373 DATE: March 25, 2022 REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had military service from October 1981 to February 1999. His period of service from October 21, 1981 through February 21, 1996, has been determined to be honorable active service. His period of service from February 22, 1996 to February 17, 1999, has been determined to be dishonorable and a bar to VA benefits. The Veteran died in November 2013, and the appellant is recognized as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Milwaukee VA Pension Center. In May 2021, the appellant presented testimony at a virtual hearing before the undersigned Veterans Law Judge. The May 2021 hearing transcript reflects the record was held open for 60 days from the date of the hearing to allow the appellant to submit additional evidence. In July 2021 and August 2021, the appellant's representative also requested extensions of 30 days each, to submit additional evidence and argument. Subsequently, in September 2021, the appellant's representative submitted additional evidence. Thus, as the appellant's representative has submitted additional evidence and argument in support of the appeal, and as the requested extensions have elapsed, the Board may proceed with appellate review. As to the issue of representation, in May 2020, more than 90 days after she was notified that her appeal had been certified to the Board and placed on the Board's docket, the appellant submitted a VA Forms 21-22a, Appointment of Individual as Claimant's Representative, in favor of Brad H. Andringa, Esq., thereby revoking previous consent to representation by The American Legion. Under 38 C.F.R. § 20.1304 (b), a request for a change of representative in an appealed case made more than 90 days after notification of certification to the Board must be made by motion to the Board on the basis of good cause. Although the appellant has not made a motion showing good cause, as VA has already recognized and treated Brad H. Andringa as the appellant's representative, the Board will continue to recognize Brad H. Andringa as the appellant's representative. 1. Entitlement to service connection for cause of the Veteran's death is remanded. The appellant asserts service connection for the cause of the Veteran's death is warranted. Specifically, she primarily asserts the immediate cause of the Veteran's death, glioblastoma multiforme, was related to exposure to burn pits, other environmental hazards, and/or exposure to nerve agents, such as sarin gas, during his service in the Southwest Asia theater of operations during the Persian Gulf War. However, remand is warranted as the record is unclear as to if the Veteran had any service in the Southwest Asia theater of operations during the Persian Gulf War. In this regard, in a February 2015 application for benefits, the appellant argued the Veteran's brain cancer was due to exposure to a Sarin nerve agent in 1991 while serving in Saudi Arabia. Similarly, in a January 2016 notice of disagreement, the appellant argued that the Veteran was exposed to a Sarin nerve agent, in March 1991, during the Gulf War, which eventually caused his cancer and took his life. In an October 2016 statements, the appellant also argued the Veteran, when he was stationed in Saudi Arabia, was exposed to the organophosphate chemical warfare agents, sarin and cyclo sarin, when a munitions dump at Khamisiyah, Iraq, was destroyed in March 1991. However, in a December 2018 substantive appeal, the appellant instead argued the Veteran was deployed from December 14, 1991 to March 15, 1992 and cited to an attached service record. However, while this cited record does appear to be a travel order for the Veteran, for period from December 14, 1991 to March 15, 1992, this record is not wholly legible, and in particular, no locations are legible. Most recently, in May 2021 testimony, the appellant testified the Veteran was in Saudi Arabia or deployed to the Middle East for six months. In this regard, a September 1991 service treatment record documented, in part, the Veteran may deploy to Saudi Arabia. A December 1991 service treatment record, also documented, in part, that the Veteran must complete a physical examination upon return from a temporary duty assignment. Finally, a September 1993 service treatment record documented, in part, the Veteran reported he had been told he was not eligible to be a blood donor after "I came back from Saudi." However, it unclear from the current record whether the Veteran served in the designated areas in the Southwest Asia theater of military operations, during his period of service at issue from October 21, 1981 through February 21, 1996, and therefore, it is unclear whether he qualifies as a Gulf War veteran. Accordingly, remand is warranted further development to determine whether the Veteran had service in the Southwest Asia theater of operations during the Gulf War, and if so, the dates and location(s) of such service. Additionally, if any service in the Southwest Asia theater of operations during the Gulf War is verified, a VA opinion to address the claim on the basis of exposure to burn pits or other environmental hazards, would be warranted. In this regard, in September 2021, the appellant's representative submitted a fact sheet which noted that the Department of Defense (DoD) performed air sampling at Joint Base Balad, Iraq and Camp Lemonier, Djibouti and that most of the air samples had not shown individual chemicals that exceeded military exposure guidelines. Nonetheless, the DoD further concluded that the confidence level in their risk estimates was low to medium due to lack of specific exposure information, other routes/sources of environmental hazards not identified, and uncertainty regarding the synergistic impact of multiple chemicals present, particularly those affecting the same body organs/systems. Thus, if any service in the Southwest Asia theater of operations during the Persian Gulf War is verified during the period at issue, from October 21, 1981 through February 21, 1996, an opinion that addresses the claim due to exposure burn pits and/or exposure to other environmental hazards during the Gulf War would be warranted. Also, in December 2018, the appellant submitted a newspaper article, dated in December 2012, which noted that bombings of Iraqi munitions factories in January 1991 released a plume of sarin gas that travelled more than 300 miles to affect American troops in Saudi Arabia. Also, in December 2018, she submitted an article that troops sent to Iraq and Kuwait in January 1991 were exposed to nerve gas and other chemicals. Similarly, in December 2021, her representative submitted an article discussing that in March 1991 combat engineers and explosive ordnance disposal units destroyed two large Iraqi weapons caches at Khamisiyah Iraq. However, there is no indication that the Veteran was stationed in the Southwest Asia theater of operations in January or March 1991, because as discussed above, the appellant most recently argued the Veteran was deployed from December 14, 1991 to March 15, 1992, in the Southwest Asia theater of operations. Further, the record reflects the Veteran was stationed at Edwards Air Force Base, located in California, in early 1991. Accordingly, the current record does not reflect Veteran had any exposure to sarin gas during in early 1991, and further development of the claim on this basis is not warranted. Additionally, in a February 2021 statement, the appellant reported that she noticed a modest change in the Veteran's behavior a couple years after his return from service in the Middle East. Similarly, in May 2021 testimony, the appellant reported that she noticed a change in the Veteran's behavior after his deployment in 1991, specifically in terms of him going overboard with disciplining the kids. Accordingly, the Board will remand for an opinion on this basis. In September 2021, the appellant's representative also submitted an article regarding high blood pressure and some air pollutants, titled "High Blood Pressure Linked to Short-, Long-term Exposure to Some Air Pollutants", and an article regarding hypertension and glioma, titled "Hypertension as a Risk Factor for Glioma? Evidence From a Population-based Study of Comorbidity in Glioma Patients". Thus, the appellant's representative appears to be asserting a theory that the Veteran's hypertension, diagnosed during his lifetime, was related to his service, specifically as to due to air pollutants during his service in the Southwest Asia theater of operations, and that his hypertension contributed substantially or materially to the glioblastoma multiforme that caused his death. Thus, if any service in the Southwest Asia theater of operations is verified, during an appropriate period prior to February 21, 1996, an opinion that addresses the Veteran's confirmed diagnosis of hypertension during his lifetime, as due to burn pits and/or exposure to other environmental hazards during the Persian Gulf War, would be warranted, and if so, whether the Veteran's hypertension caused contributed substantially or materially to the glioblastoma multiforme that caused his death. This matter is REMANDED for the following actions: 1. Undertake all necessary actions to attempt to verify and document in the virtual file the dates and locations of any service of the Veteran in the Southwest Asia theater of operations from August 2, 1990, through February 21, 1996, with particular attention to the period from December 14, 1991 to March 15, 1992. 2. Obtain an addendum opinion addressing the claim of entitlement to service connection for cause of the Veteran's death, from an appropriate clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support the opinion, to the following: (a.) If and only the Veteran is determined to be a Persian Gulf Veteran, is it at least as likely as not that the Veteran's glioblastoma multiforme was related to exposure to burn pits and/or exposure to other environmental hazards during the Persian Gulf War, to include with consideration of the Fact Sheet, associated with the record in September 2021, which noted DoD concluded that the confidence level in their risk estimates was low to medium due to lack of specific exposure information, other routes/sources of environmental hazards not identified, and uncertainty regarding the synergistic impact of multiple chemicals present, particularly those affecting the same body organs/systems? and; (b.) If and only the Veteran is determined to be a Persian Gulf Veteran, is it at least as likely as not that the Veteran's hypertension was related to exposure burn pits and/or exposure to other environmental hazards during the Persian Gulf War with consideration of the article titled "High Blood Pressure Linked to Short-, Long-term Exposure to Some Air Pollutants"? (c.) If the answer to (b) is yes, is it at least as likely as not that the Veteran's hypertension (i) caused his death, or (ii) contributed substantially or materially to cause his death, with consideration of the article titled "Hypertension as a Risk Factor for Glioma? Evidence From a Population-based Study of Comorbidity in Glioma Patients"? and; (d) Is it at least as likely as not that the Veteran's glioblastoma multiforme had its onset during his active service from October 21, 1981 through February 21, 1996 or is related to any in-service disease, event, or injury during this period of service, to include with consideration of the appellant's statements that she noticed a change in the Veteran's behavior, after his deployment in 1991? Please explain. (e) In providing the requested opinion under (d), is there any medical reason to accept or reject the proposition that the appellant's report of the Veteran's symptoms in 1991 and thereafter represented the onset of his glioblastoma multiforme? Stated another way, do the appellant's reports about the Veteran's symptoms in 1991, or shortly thereafter, align with how glioblastoma multiforme is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? 3. After undertaking any other development deemed appropriate, include as a result of the above actions, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the appellant and her representative with a supplemental statement of the case, and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.