Citation Nr: 0600255 Decision Date: 01/05/06 Archive Date: 01/19/06 DOCKET NO. 03-00 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Entitlement to service connection for residuals of brain tumors. 2. Entitlement to service connection for right lower extremity neuropathic pain, claimed as secondary to brain tumors. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from August 1974 to December 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Procedural history In October 2001, the RO received the veteran's claim of entitlement to service connection for residuals of brain tumors and for right leg pain, claimed as secondary to brain tumors. In an August 2002 rating decision, the RO denied the claims. The veteran disagreed with the August 2002 rating decision and initiated this appeal. The appeal was perfected with the timely submission of the veteran's substantive appeal (VA Form 9) in December 2002. In connection with his appeal, the veteran testified at a videoconference hearing which was chaired by the undersigned Veterans Law Judge (VLJ) in May 2003. A transcript of the hearing has been associated with the veteran's VA claims folder. In December 2003, the Board remanded the matter to the RO for additional evidentiary development. FINDINGS OF FACT 1. The most probative evidence of record indicates that the veteran's post-service brain tumors are causally related to his active service. 2. Residuals of the veteran's brain tumors include right lower extremity dysesthetic pain. CONCLUSIONS OF LAW 1. Brain tumors were incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). 2. A disability manifested by dysesthetic right lower extremity pain is due to or is the result of the veteran's brain tumors. 38 C.F.R. § 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to service connection for residuals of brain tumors, including right lower extremity neuropathic pain, which he claims was present in service as evidenced by symptoms he experienced therein, such as headaches. In the alternative, he argues that his brain tumors are casually related to various toxic chemicals to which he was exposed in service while stationed aboard the USS Lawrence. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (the VCAA) [codified as amended at 38 U.S.C.A. § 5102, 5103, 5103A, 5107], enacted in November 2000, eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,630 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)]. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review The current standard of review is as follows. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). Third, VA must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). Finally, VA must request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). A review of the record indicates that in January 2003 and May 2004, the RO provided the veteran with letters specifically intended to address the requirements of the VCAA. These letters notified the veteran of the information and evidence needed to substantiate and complete his claims, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. For example, the letter specifically advised the veteran of the elements which must be satisfied in order to establish service connection for a particular disability. The letter also advised the veteran that VA would obtain a medical examination, as well as records from Federal agencies, although he was responsible for providing enough information about such records so that VA could obtain them. With respect to the final element, the January 2003 letter specifically advised the veteran to "[t]ell us if you know of any additional evidence you would like us to consider." The Board finds that this letter substantially satisfied the "give us everything you've got pertaining to your claim" requirement contained in 38 C.F.R. § 3.159(b)(1). The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of the issue by the RO. While that was not done in this case, the Board does not believe that the veteran has been prejudiced by such failure in timing. See Bernard v. Brown, 4 Vet. App. 384 (1993) [when the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby]. In this case, the VCAA notices discussed above were provided by the RO prior to the transfer and certification of the veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, the veteran is represented and has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. In addition, a review of the record shows that after providing appropriate VCAA notice, the RO reconsidered the veteran's claims, as evidenced by the September 2005 Supplemental Statement of the Case. Based on this procedural history, the Board finds that the veteran was not prejudiced by any timing deficiencies. Neither the veteran nor his representative has argued otherwise. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) [due process concerns with respect to VCAA notice must be pled with specificity]. Duty to assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). In this case, the RO has obtained the veteran's service medical records, as well as all pertinent post-service clinical records specifically identified by the veteran. The RO also contacted the National Personnel Records Center (NPRC) and requested information pertaining to the veteran's exposure to toxic chemicals in service. In August 2004, the NPRC unambiguously advised the RO that no such information was on file. The Board finds that, based on the RO's efforts and the responses from NPRC, it is reasonably certain that such records are not available and that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). Given the nature of the veteran's claim, the RO also obtained an August 2005 medical opinion regarding the etiology of the veteran's brain tumors. As set forth below, the opinion obtained by the RO specifically addresses the question at issue in this case. The Board finds that another examination is not necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). For the reasons set forth above, the Board finds that the development of this claim on appeal has been consistent with the provisions of the VCAA, without any error that would affect the essential fairness of this adjudication. The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2005). The veteran engaged the services of a representative and he presented testimony at a Board hearing before the undersigned VLJ. Accordingly, the Board will proceed to a decision on the merits. Relevant law and regulations Service connection - in general Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2005). For certain chronic disorders, including tumors of the brain, spinal cord, or peripheral nerves, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1131, (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2005). In addition, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2005). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Secondary service connection Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2005). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background The veteran's service medical records are negative for complaints or findings of a brain tumor. His service personnel records show that he served aboard the USS Lawrence and that his military occupational specialty was marine mechanic. He left service in December 1976 Post-service medical records show that in April 1990, the veteran was evaluated in connection with his complaints of persistent headaches, dizziness, and neck stiffness. He indicated that his symptoms had been present for approximately five years, but had become increasingly severe. Although neurological examination was relatively unremarkable, MRI and CT scans revealed a posterior fossa and fourth ventricular brain tumor. The veteran underwent surgery to remove the tumor in May 1990. Thereafter, the veteran developed another brain tumor. In May 1998, he underwent surgical removal of a right middle fossa meningioma. Additional clinical records show that the veteran developed persistent right lower extremity dysesthetic pain, which was felt to be a residual of the central brainstem tumor. Records show that because exhaustive efforts at medical treatment and pain management failed, the veteran's right lower extremity symptoms were felt to be permanent in nature. In October 2001, the veteran submitted a claim of service connection for residuals of brain tumors. In various statements to the RO and at his May 2003 Board hearing, he indicated that he had served aboard the USS Lawrence where he worked as a machinist's mate in the main engine room. He indicated that his duties included painting and cleaning out tanks. He indicated that it was his belief that his brain tumors were caused by his exposure to chemicals in the course of his duties aboard the USS Lawrence. The veteran explained that he began to experience symptoms such as headaches within a year of his separation from service. He indicated that his symptoms eventually worsened, causing him to seek medical treatment. He stated that he was diagnosed as having a slow- growing brain tumor in 1990. The veteran explained that he experienced various residuals as a result of the brain tumor, particularly pain in his right leg due to nerve damage from the brain tumor. In support of his claim, the veteran submitted statement from numerous friends and family members. In essence, these statements indicated that the veteran began to complain of symptoms such as headaches shortly after his separation from service. In a November 2001 letter, J.R.S., Jr., MD. , a Board Certified Neurological Surgeon, indicated that he was the veteran's physician . He explained that the veteran had been found to have intracranial tumors on two different occasions. The first was a left brainstem low-grade astrocytoma in May 1990, and the second was a temporal meningioma in May 1990. Dr. S. explained that since it was highly unusual to see two separate and histologically different intracranial tumors in the same patient, the tumors may have been related to the veteran's military service. Dr. S. noted that the veteran had served in the engine room of a Naval destroyer during service, an environment in which exposure to potentially toxic materials was feasible. Dr. S. noted that no other specific predisposing etiologies had been identified. Also submitted by the veteran was a June 2003 statement from M.R.M., M.D., a Board Certified specialist in Anesthesiology and Pain Management. Dr. M. indicated that the veteran had undergone craniotomies in May 1990 for removal of a left brainstem astrocytoma and in May 1990 for removal of a benign temporal meningioma. Like Dr. S., Dr. M. explained that since two distinct intracranial tumors in the same patient was quite unusual, particularly given that the veteran had no other predisposing factors, it was conceivable that the veteran's brain tumors could be related to potential toxic exposure while serving in the engine room of a Navy destroyer. In a June 2004 statement, Dr. S. opined that "[a]fter reviewing the service related medical records of [the veteran] it is my opinion that more likely than not his intracranial tumor started during the time of his military service." The veteran underwent VA medical examination in August 2005. He reported that he worked in the engine room in service using cleaning solutions and lead based paint. He indicated that after his separation from service, he was not exposed to any toxic chemicals. After examining the veteran and reviewing the claims folder, the VA physician diagnosed status post resection of brain tumors, in stable condition. He indicated that he had reviewed a textbook on cancer and noted that a higher incidence of brain tumors was observed in individuals who had been exposed to pesticides, herbicides, fertilizers, and various petrochemical industries. However, the VA physician indicated that it was his opinion that "this veteran's brain tumor is less likely due to his military service, as there was no evidence that he was exposed to any pesticides or herbicides or fertilizers or any petrochemicals while he was in the Navy." The VA physician did not provide a more likely etiology for the veteran's brain tumors. Analysis 1. Entitlement to service connection for residuals of brain tumors. As noted, the veteran is seeking service connection for residuals of brain tumors. In order to establish service connection, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the in-service disease or injury and the current disability. See Hickson, supra. With respect to element (1), the veteran unquestionably has a current disability. As set forth above, the record contains medical records showing that the veteran underwent surgeries to remove brain tumors in May 1990 and May 1998, and continues to experience various residuals. With respect to issue (2), in-service disease or injury, the Board will separately discuss disease and injury. Regarding disease, there is no medical evidence of brain tumors in service or within the one year presumptive period after service. To the extent that the veteran and his relatives contend that headaches experienced in or shortly after service represent the onset of brain tumors, it is well established that lay persons without medical training, such as the veteran and his relatives, are not competent to attribute symptoms to a particular cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Concerning in-service injury, however, the veteran has reported that he used materials such as paint and cleaning solvents during the course of his duties as a machinist's mate aboard the USS Lawrence. The veteran's service aboard the USS Lawrence as a marine mechanic is confirmed by his service personnel records. The Board believes that such evidence, along with the veteran's credible hearing testimony regarding his duties in service, is sufficient to establish that he was exposed to materials such as paint and cleaning solvents. Element (2) is therefore satisfied to that extent. The matter of the effects of exposure to such materials, however, is a matter for medical expertise. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. In this regard, with respect to element (3), the record contains conflicting medical opinions regarding the etiology of the veteran's post-service brain tumors, including whether such tumors are causally related to the veteran's active service and exposure to chemicals therein. On the one hand, the record contains the June 2003 statement from Dr. M., who indicated that it was "conceivable" that the veteran's brain tumors could be related to potential toxic exposure in service. Dr. M. noted that the veteran had no other predisposing factors. Moreover, he reasoned that it was highly unusual for an individual to develop two distinct intracranial tumors, as the veteran had. However, this opinion is rather weakly presented so as to be lacking in probative value. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [medical opinions which are speculative, general or inconclusive in nature cannot support a claim.]. Dr. S., a Board Certified Neurological Surgeon, reached a similar but much more strongly stated conclusion, stating that it was more likely than not the veteran's intracranial tumors began during service. Dr. S. also explained that it was highly unusual to see two separate and histologically different intracranial tumors in the same patient. Moreover, he noted that the veteran had served in the engine room of a Naval destroyer, an environment which was consistent with exposure to potentially toxic materials. Dr. S. also noted that the veteran had no other specific predisposing etiologies. On the other hand, in an August 2005 VA medical examination report, a VA physician concluded that it was less likely that the veteran's brain tumors had been incurred in service. The VA examiner acknowledged that although medical studies had shown a higher incidence of brain tumors in individuals who had been exposed to various petrochemicals, he reasoned that there was no evidence that the veteran had been exposed to chemicals in service. The examiner did not elaborate on the factual basis for his so concluding. In determining the probative weight to be assigned to these medical opinions, the Board must consider factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In that regard, the Board notes that all three physicians who provided opinions in this case are clearly competent to render a medical opinion as to the etiology of the veteran's brain tumors. The Board further observes that both the VA physician and Dr. S. based their conclusions on a review of the pertinent medical history, an examination of the veteran, and a review of the veteran's service medical records. All physicians provided a rationale for their opinions. The Board believes that the opinion of Dr. S. is the most probative in this case. Moreover, that opinion is buttressed, to some extent, by the opinion of Dr. M. The opinion of the VA physician is undermined by his statement that the veteran was not exposed to petrochemicals in service, when the veteran has indicated that he was in fact exposed to paints and solvents. In this case, the ultimate cause of the veteran's brain tumors will never be known to a certainty. However, certainty is not required. Here, the evidence is at least in equipoise as to the matter of in-service causation of the veteran's brain tumors. As noted above, under the benefit-of-the-doubt rule, for the veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made in this case. Thus, the Board finds that service- connection for residuals of brain tumors is warranted. Additional comment The Board specifically declines to address the matter of exactly what the residuals of the veteran's brain tumor may be. This is a medical question. See Colvin, supra. However, the matter of entitlement to service connection for right lower extremity neuropathic pain, which has come to the Board as a separately developed issue, will be addressed immediately below. 2. Entitlement to service connection for right lower extremity neuropathic pain, claimed as secondary to brain tumors. The veteran also seeks service connection for right lower extremity pain, which he claims is secondary to his brain tumors. As noted, in order establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service- connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, all three elements have been met. The record on appeal contains clinical records showing that the veteran developed, and continues to suffer from, persistent right lower extremity dysesthetic pain, which his physicians have concluded is a residual of his brain tumors. Given the Board's decision above to award service-connection for residuals of brain tumors, clearly, secondary service connection for right lower extremity pain is warranted. ORDER Entitlement to service connection for residuals of brain tumors is granted. Entitlement to service connection for right lower extremity neuropathic pain, secondary to brain tumors, is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs