Veteranclaims’s Blog

March 27, 2020

Single Judge Application; AO; agent orange; brain cancer; glioblastoma (GBM); “[t]o permit the denial of service connection for a disease . . . solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of service connection simply because there is no presumptive service connection.” Polovick, 23 Vet.App. at 53;

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” Dr. Abrams clearly based his rationale solely on the findings of the IOM report, seemingly without an appreciation of the purpose of the IOM reports. The IOM provides biennial reports to address, inter alia, whether a statistical association exists between herbicide exposure and various
diseases. Polovick v. Shinseki, 23 Vet.App. 48, 52 (2009). The IOM reports recommend that a particular disease be included among those for which service connection is presumed under 38 U.S.C. § 1116 when there is “sufficient evidence of an association” between that disease and
herbicide exposure. Id. Dr. Abrams’s rationale for his negative linkage opinion is based solely on the IOM’s finding of a lack of a statistical association, sufficient for presumptive status, between herbicide exposure and brain cancers. R. at 53-54. However, “[t]o permit the denial of service
connection for a disease . . . solely because the statistical analysis does not support presumptive
7 The portions removed from Dr. Abrams’s rationale relate to his challenges to Dr. Mohile’s opinions, which
the Court will discuss below.
8
service connection, would, in effect, permit the denial of service connection simply because there is no presumptive service connection.” Polovick, 23 Vet.App. at 53. “

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-1586
ADELINE MORACCO, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Appellant Adeline Moracco, mother of veteran Thomas J. Cray,
appeals through counsel a February 8, 2019, Board of Veterans’ Appeals (Board) decision that
denied service connection for her son’s glioblastoma (GBM), entitlement to a temporary total
disability evaluation pursuant to 38 C.F.R. § 4.30 for convalescence, and entitlement to special
monthly compensation (SMC) due to the need for aid and attendance of another person or due to
being housebound. Record (R.) at 7-19.1 For the reasons that follow, the Court will set aside the
February 2019 Board decision and remand the matter for readjudication consistent with this
decision.
I. FACTS
Mr. Cray served honorably on active duty in the U.S. Navy from June 1969 to February
1973, including service in the Republic of Vietnam. R. at 921-22, 1929.
In January 2017, Mr. Cray filed, inter alia, claims for service connection for a “brain tumor”
and a temporary total evaluation based on surgery and hospitalization. R. at 1001-04. In February
1 On March 6, 2020, the Court granted Ms. Moracco’s motion to expedite proceedings in this appeal. See U.S.
VET. APP. R. 47.
2
2017, he submitted a January 2017 private examination report reflecting that he was diagnosed
with an “extensive” GBM. R. at 924-25. The private neurosurgeon, Dr. Walker, noted that Mr.
Cray had “a history of extensive exposure to Agent Orange during the Vietnam era” and that “[o]ne
of the only links to GMB epidemiologically is exposure to organic chemicals.” R. at 925. Dr.
Walker then stated that he “would consider [Mr. Cray’s] cancer to be linked to his service time.”
Id.
In April 2017, a VA regional office (RO) denied service connection for GBM and denied
entitlement to a temporary total evaluation based on continuous hospitalization in excess of 21
days or treatment requiring convalescence. R. at 891-93.
In May 2017, Mr. Cray submitted two private medical opinions. R. at 867-88. In one
opinion, Dr. Usuki, a radiation oncologist, noted that GBM is a rare primary brain cancer, that Mr.
Cray served in Vietnam with “extensive” exposure to Agent Orange, and that the components of
Agent Orange are known carcinogens. R. at 868. Dr. Usuki then stated: “While I cannot say with
entire certainty that this exposure directly led to his development of this rare disease []. It is
possible that the exposure increased his risk of developing [GBM].” Id.
In the second opinion, Dr. Mohile, a neuro-oncologist, also noted that GBM is a rare
primary brain cancer and that Mr. Cray served in Vietnam with “extensive” exposure to Agent
Orange. R. at 867. He then stated: “While I cannot say with entire certainty that this exposure
directly led to his development of this rare disease, one of the only epidemiological links to cancer
development is exposure to organic chemicals. Therefore[,] I do believe that it is entirely possible
that his exposure was causative.” Id.
In a July 2017 VA opinion, the examiner opined that Mr. Cray’s GBM was less likely than
not incurred as a result of service. R. at 843-44. The examiner noted that “there is no definitive
conclusion about the causes of [GBM],” stating that, although several studies concluded that
exposure to chemicals leads to an increased risk of the development of glioma in men, other studies
have found no association between glioma and herbicide exposure. R. at 843. The examiner
referenced three scientific studies in her opinion. Id.
In August 2017, Mr. Cray submitted a second opinion from Dr. Mohile along with other
evidence, including medical treatise evidence. R. at 816-33, 837-40. In his opinion, Dr. Mohile
stated that “[w]hile a definitive cause for [GBM] has not yet been established, several studies have
3
linked exposure to herbicides containing dioxin to brain cancer. Of the possible causes for Mr.
Cray’s cancer, I believe dioxin exposure to be at least as likely as not.” R. at 839. Dr. Mohile found
the July 2017 examiner’s reliance on the three studies referenced in her opinion “problematic
because they focus on purely civilian populations,” noting that the herbicides sprayed in Vietnam
were 6-25 times more concentrated than civilian applications, thereby rendering the results from
civilian studies inapplicable. Id. Instead, Dr. Mohile relied on a 2014 study that found a nearly
five-fold increase in the mortality risk related to brain cancer in female service nurses deployed in
Vietnam as compared to female service nurses who were not deployed and indicated that “[s]ince
the main variable between the groups was exposure to dioxin, these results strongly suggest that
exposure to Agent Orange resulted in the development of brain cancer.” Id.; see R. at 816 (abstract
of the 2014 study).
Following Mr. Cray’s submission, the RO sought an addendum medical opinion from the
July 2017 VA examiner. In the August 2017 addendum opinion, the examiner again opined that
Mr. Cray’s GBM was less likely than not the result of his exposure to herbicides during service. R.
at 812-13. The examiner noted several problems with the 2014 study relied upon by Dr. Mohile,
including the authors’ own supposition that herbicide exposure was unlikely the cause of the
increased risk demonstrated in female Vietnam veterans. Id.; see R. at 804.2 She then indicated
that current research does not suggest that exposure to Agent Orange causes brain cancer. R. at
813.
In September 2017, the RO confirmed and continued its previous denial of service
connection for GBM. R. at 789-94. The RO also denied entitlement to a temporary total evaluation
2 Mr. Cray submitted the research report in its entirety in September 2017. R. at 797-806. The report, entitled
Mortality Study of Female US Vietnam Era Veterans, 1965-2010, describes a retrospective study comparing the
mortality rates of women who served in the U.S. military in Vietnam as compared to women who served in countries
near Vietnam and women who served stateside (nondeployed). As relevant, the study found that, of the 12,104 women
analyzed, 14 Vietnam veterans died of a brain or other nervous system cancer as compared to 7 near-Vietnam veterans
and 8 nondeployed veterans. R. at 801. Although the study revealed a higher number of deaths in Vietnam veterans,
the authors noted that this different was not statistically significant. R. at 799. However, noting that more than twothirds
of the Vietnam veteran cohort were nurses, the authors found an almost five-fold increase in the mortality risk
of nurses serving in Vietnam from brain or other nervous system cancers as compared to nondeployed military nurses.
R. at 802-03. However, the authors speculated that herbicide exposure was an unlikely explanation for the increased
risk, concluding that, based on the length and locations of service (one year and on a military installation), the
cumulative exposure was unlikely to be higher than that of industrial workers who have been occupationally exposed.
R. at 804.
4
and denied entitlement to SMC. Id. In October 2017, Mr. Cray filed a Notice of Disagreement, R.
at 771-72, and, following an October 2017 Statement of the Case, R. at 726-70, he timely perfected
an appeal to the Board, R. at 718.
However, in November 2017, Mr. Cray died. R. at 237. The death certificate lists cardiac
arrest as the immediate cause of death due to GBM. Id. Also in November 2017, Mr. Cray’s
veterans service organization (VSO) representative submitted a research study report, a November
2010 medical opinion provided in the context of another veteran’s claim,3 and a March 2016 Board
decision for yet another veteran awarding service connection for brain cancer as due to herbicide
exposure. R. at 239-67.
In January 2018, Ms. Moracco filed for substitution as an accrued benefits claimant, R. at
220-28, and the RO determined that she was an appropriate substitute, R. at 196. In April 2018,
she submitted an opinion from Mr. Cray’s treating physician’s assistant, who opined that, because
Mr. Cray had long-standing coronary artery disease and diabetes, both service-connected
conditions, he had a poor response to the GBM and a “rapid demise.” R. at 146.4
In October 2018, the Board requested an independent medical opinion to address the
conflicting medical opinions of record. R. at 56-59.5 In an October 2018 opinion, Dr. Abrams, a
VA neurologist, opined that it was less likely than not that Mr. Cray’s GBM was due to the inservice
herbicide exposure. R. at 52-54. After reviewing the conflicting medical opinions, Dr.
Abrams indicated that the most recent Institute of Medicine (IOM) report on Agent Orange (2014
Update) “concluded that the synthesis of available studies did not show an association that could
be interpreted as adequate or sufficient to indicate a causal relationship between Agent Orange
exposure and brain cancer.” R. at 54. Dr. Abrams specifically noted that the IOM “cautioned that

[the 2014 female veteran study’s finding of increased risk of cancer in nurses who served in
3 The author of this opinion is Dr. Carey, an emergency medicine physician. In her briefs, Ms. Moracco refers
to this evidence as Dr. Carey’s opinion. See Appellant’s Brief (Br.) at 7, 15; Reply Br. at 4.
4 In addition to serving as a substituted claimant, Ms. Moracco also filed a claim for dependency and
indemnity compensation (DIC). R. at 220-28; see R. at 91-96 (RO’s acknowledgment of the DIC claim). The status of
the DIC claim is unclear from the record of proceedings.
5 The Board actually requested and received two independent medical opinions. R. at 52-63. However, in its
February 2019 decision, the Board found the opinion provided by Dr. Frank, see R. at 55, lacking in probative value
because it lacked an appropriate rationale and was conclusory in nature. R. at 15.
5
Vietnam]

was only one of many sub-analyses in a larger otherwise negative study and that the lack
of correction for multiple testing made this single outlier prone to error.” Id.
In November 2018, Ms. Moracco, through her VSO representative, argued against Dr.
Abrams’s opinion “because it presupposes a high level of certainty well beyond what the law
requires.” R. at 44. She additionally noted that in its 2018 Update, the IOM
explained why it would be inappropriate to deny claims merely due to an absence
of evidence: “The committee believes it is appropriate for VA to be mindful of the
concerns raised about the possible association between Vietnam service and
[GBM], but it observes that the outcome is so rare and the information concerning
herbicide exposure so imprecise that it is doubtful that any logistically and
economically feasible epidemiologic study of veterans—no matter how well
designed or executed—would produce meaningful results.”
Id. (quoting R. at 48 (portion of the 2018 Update submitted by Ms. Moracco)).
In the February 2019 decision on appeal, the Board denied service connection for GBM,
finding Dr. Abrams’s medical opinion “highly probative[] because it is based on an accurate
medical history and provides an explanation that contains clear conclusions and supporting data.”
R. at 15. In contrast, the Board found Dr. Mohile’s May 2017 opinion less probative because it was
based on the 2014 female veterans study, which, as the Board noted, was criticized by the VA
examiner, Dr. Abrams, and the IOM. R. at 15-16. Additionally, as the Board found the claims for
a temporary total evaluation and SMC were based on the claim for service connection for GBM,
the Board similarly denied these additional claims. R. at 17-18. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Ms. Moracco’s appeal is timely and the Court has jurisdiction to review the February 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determinations regarding service connection are findings of fact subject to the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Davis v. West, 13 Vet.App.
178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
6
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
To comply with this requirement, the Board must analyze the credibility and probative value of
evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its
rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
III. ANALYSIS6
Ms. Moracco argues, in part, that the Board clearly erred in concluding that the evidence
preponderated against a finding that Mr. Cray’s GBM was caused by herbicide exposure.
Appellant’s Br. at 11-17. She, therefore, urges the Court to reverse the Board’s determination or,
in the alternative, set aside the Board’s determination in this regard as not supported by adequate
reasons or bases. Id. at 20-26. The Secretary urges the Court to affirm the Board decision, arguing,
in part, that the Board appropriately determined that the evidence of record did not establish
causation between herbicide exposure and Mr. Cray’s GBM. Secretary’s Br. at 7-16. In addition,
he argues that the Board otherwise provided adequate reasons or bases for its determination that
service connection for GBM is not warranted. Id. at 20-27.
The Court concludes that the Board failed to provide adequate reasons or bases for its
assignment of relative probative weight to Dr. Abrams’s opinion. In this regard, the Court agrees
with Ms. Moracco that the Board’s determination that Dr. Abrams’s opinion was “highly probative”
is not supported by adequate reasons or bases because of his reliance on the IOM report as the sole
basis for his opinion.
In his opinion, Dr. Abrams recounted specific details of Mr. Cray’s service and medical
history and described the conflicting medical opinions of record. R. at 52-53. However, despite
6 Both parties agree that the claims for entitlement to a temporary total evaluation and SMC are inextricably
intertwined with the service-connection claim. Appellant’s Br. at 26; Secretary’s Br. at 28-29; Reply Br. at 12. Ms.
Moracco advances no argument asserting error in the Board’s adjudication of the temporary total evaluation or SMC
claims independent of the service-connection claim. Appellant’s Br. at 26. Therefore, the Court’s analysis will focus
on the Board’s adjudication of the claim for service connection for GBM. See Grivois v. Brown, 6 Vet.App. 136, 138
(1994) (explaining that the Court has discretion to deem abandoned issues not argued on appeal).
7
the Secretary’s assertion to the contrary, Secretary’s Br. at 11-12, the sole basis for Dr. Abrams’s
opinion was the findings and conclusions found in the IOM report. Dr. Abrams’s rationale was as
follows:
The [IOM] has regularly reviewed in a sequential fashion whether or not there is
an association between exposure to Agent Orange and cancer of the brain, including
[GBM]. The most recent, 2014 Update on Agent Orange . . . concluded that the
synthesis of the available studies did not show an association that could be
interpreted as adequate or sufficient to indicate a causal association between Agent
Orange exposure and brain cancer. That update included review of nearly forty
studies and, within that, multiple sub-analyses. Their finding of inadequate or
insufficient data is the reason why there is no presumption of a causal nexus
between military service in Vietnam and [GBM]. . . . The IOM report also
highlighted the lack of supporting animal experimental data as another factor in its
negative assessment. The reason why the IOM series of reports is so important to
an appropriate assessment of exposure risk is precisely because of the systematic
and detailed approach it takes to the full body of scientific evidence. In terms of the
other opinions summarized above, none is directly applicable or as specific as the
IOM data. Although organic chemicals may cause cancer, it does not support any
specific relationship between herbicides and brain cancer. . . . Based on my review
of these data, it is less likely as not that the veteran’s [GBM] was due to in-service herbicide exposure. R. at 53-54.7
Dr. Abrams clearly based his rationale solely on the findings of the IOM report, seemingly without an appreciation of the purpose of the IOM reports. The IOM provides biennial reports to address, inter alia, whether a statistical association exists between herbicide exposure and various diseases. Polovick v. Shinseki, 23 Vet.App. 48, 52 (2009). The IOM reports recommend that a particular disease be included among those for which service connection is presumed under 38 U.S.C. § 1116 when there is “sufficient evidence of an association” between that disease and herbicide exposure. Id. Dr. Abrams’s rationale for his negative linkage opinion is based solely on the IOM’s finding of a lack of a statistical association, sufficient for presumptive status, between herbicide exposure and brain cancers. R. at 53-54. However, “[t]o permit the denial of service connection for a disease . . . solely because the statistical analysis does not support presumptive
7 The portions removed from Dr. Abrams’s rationale relate to his challenges to Dr. Mohile’s opinions, which
the Court will discuss below.
8
service connection, would, in effect, permit the denial of service connection simply because there is no presumptive service connection.” Polovick, 23 Vet.App. at 53.

Ms. Moracco argues that Dr. Abrams’s reliance on the IOM report should divest his opinion
of any probative value. Appellant’s Br. at 12-14. She, therefore, argues that “the only remaining
medical evidence to weigh against [the four] favorable opinions are the VA [examiner’s] opinions,
which should leave the Court with a definite and firm conviction that there is, at a minimum, an
approximate balance of evidence on herbicide causation, making the Board’s contrary finding
definitely mistaken.” Id. at 12-13.8 The Court disagrees.
Although Dr. Abrams’s rationale is based solely on the IOM report, it does not necessarily
follow that the Board may not consider it within the totality of the evidence or may not afford it
any probative value. See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) (noting that, “even if
a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion
is entitled to absolutely no probative weight”). In this regard, Dr. Abrams’s opinion contains
information that directly contradicts the basis for Dr. Mohile’s opinion that the Board may consider
separate from his rationale.
Notably, Dr. Abrams noted that the IOM cautioned that the 2014 female veterans study’s
finding of an increased number of deaths from brain cancer in nurses serving in Vietnam was one
sub-analysis of a larger study that overall found no statistically significant elevation in the number
of deaths from brain cancer depending on the location of service. R. at 54; see R. at 797-806. Dr.
Abrams’s challenge to Dr. Mohile’s opinion is consistent with the VA examiner’s challenge, R. at
813, where she noted that Dr. Mohile’s conclusion about the study’s implications ran directly
counter to the study authors’ own conclusions. Compare R. at 839 with R. at 804.
To be clear, the Court is not making a conclusion about the adequacy of Dr. Mohile’s
opinion or espousing an opinion about its probative value. The Court is simply noting that there
are parts of Dr. Abrams’s opinion, divorced from his reliance on the IOM in forming his likelihood
8 Although Ms. Moracco refers to the various doctors by name, she refers to the VA examiner as the “VA
nurse” throughout her briefs. Because the examiner is in fact a nurse practitioner, the Court trusts that Ms. Moracco’s
characterization in this regard is solely for identification purposes and was not intended to imply that the examiner’s
opinion should be afforded less probative value simply because she is a nurse practitioner. See Cox v. Nicholson,
20 Vet.App. 563, 570 (2007) (concluding that, in general, nurse practitioners are competent to provide medical opinion
evidence). In fact, Ms. Moracco has not argued that the VA examiner was not competent to render a medical opinion
in this case.
9
opinion, that the Board may consider upon readjudication of the claim. In this regard, the Court is
not persuaded by Ms. Moracco’s framing of Dr. Mohile’s opinion as demonstrative that the Board
clearly erred in rendering its decision.9
Therefore, the Court concludes that the Board’s February 2019 decision is not supported
by adequate reasons or bases. Although Ms. Moracco argues that the proper remedy is to reverse
the Board’s conclusion that the evidence preponderated against finding a link between herbicide
exposure and GBM and requests that the Court direct the Secretary to grant service connection,
Appellant’s Br. at 26, the Court concludes that remand is appropriate because the Board provided
inadequate reasons or bases for its analysis. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(holding that remand is the appropriate remedy “where the Board has . . . failed to provide an
adequate statement of reasons or bases for its determinations”). Because proper evaluation of the
evidence is necessary to make a decision on the claim, remand, not reversal, is the proper remedy
in this case. See Bankhead v. Shulkin, 29 Vet.App. 10, 23 (2017); see also Deloach v. Shinseki,
704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that reversal is appropriate only when the Court,
“on the entire evidence, [] is left with the definite and firm conviction that a mistake has been
committed”).
As noted above, both parties agree that the claims for entitlement to a temporary total
evaluation and SMC are inextricably intertwined with the service-connection claim. Supra n.6.
Because those claims depend on whether service connection for GBM is awarded, the Court agrees
that the claims are inextricably intertwined and must be remanded together. See Smith v. Gober,
236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial economy and
avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated
together); Henderson v. West, 12 Vet.App. 11, 20 (1998) (“[W]here a decision on one issue would
9 The Court is likewise not persuaded by Ms. Moracco’s characterization of Dr. Carey’s “opinion.” Notably,
although Mr. Cray’s VSO representative submitted a statement from Dr. Carey in November 2017, this statement was
a November 2010 opinion Dr. Carey provided with respect to another veteran’s claim for service connection. R. at
256-57. Ms. Moracco asserts that Dr. Carey’s rationale for that opinion is favorable evidence describing the scientific
basis for establishing a link between herbicide exposure and GBM formation, see Appellant’s Br. at 15; she does not
assert that Dr. Carey reviewed Mr. Cray’s medical records or was familiar with the specific facts of Mr. Cray’s case
nor could she, as Mr. Cray was not diagnosed with GBM until January 2017. Yet, she asserts a lack of familiarity with
the specifics of Mr. Cray’s case as part of her arguments undercutting the unfavorable opinions of Dr. Abrams and the
VA examiner. See Appellant’s Br. at 21-23. Therefore, her arguments seem to similarly undercut her characterization
of Dr. Carey’s “opinion.”
10
have a significant impact upon another, and that impact in turn could render any review by this
Court of the decision on the other [issue] meaningless and a waste of judicial resources, the two [issues] are inextricably intertwined.” (internal quotations and alterations omitted)). Accordingly,
the Court will remand the issues of entitlement to a temporary total evaluation and SMC along
with the remanded service-connection claim.
Given this disposition, the Court need not address Ms. Moracco’s remaining arguments,
which could not result in a remedy greater than remand. On remand, she is free to submit those
arguments, as well as additional arguments and evidence, to the Board in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the February 8, 2019, Board decision is SET ASIDE
and the matter is REMANDED for readjudication consistent with this decision.
DATED: March 25, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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