Citation Nr: 0612429 Decision Date: 05/01/06 Archive Date: 05/15/06 DOCKET NO. 03-00 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a brain tumor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M.A. Herman, Counsel INTRODUCTION The veteran had active military service from October 1977 to April 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2000 rating action of the Department of Veterans' Affairs (VA) Regional Office (RO) in Des Moines, that reopened the claim for service connection for a brain tumor and subsequently denied that claim on its merits. The veteran was afforded a personal hearing before the undersigned Veterans Law Judge in October 2005. A transcript of the hearing is of record. FINDINGS OF FACT 1. An RO rating decision was issued in April 1997 that found service connection for a brain tumor was not warranted because the evidence of record failed to show a causal relationship between the tumor and the veteran's exposure to toxins in service. The veteran did not appeal this decision within one year of being notified. 2. The evidence received since the April 1997 rating decision is so significant that it must be considered to fairly decide the merits of the claim for service connection for a brain tumor. 3. Resolving the benefit of the doubt in favor the veteran, the evidence shows that the veteran's brain tumor (oligodendroglioma of the left temporal lobe) was likely caused by his exposure to vinyl chloride during his active military service. CONCLUSIONS OF LAW 1. The April 1997 rating action denying service connection for a brain tumor is final. 38 U.S.C.A. § 7105 (West 1991 & West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a brain tumor. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). 3. Entitlement to service connection for an oligodendroglioma of the left temporal lobe is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2005). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a tumor of the brain becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2005). Service connection may 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). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board acknowledges that the regulation regarding new and material evidence was amended during the course of this appeal. See 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.156(a)). This amendment to 38 C.F.R. § 3.156(a) applies only to claims to reopen a finally-decided claim received on or after August 29, 2001. The veteran's request to reopen his claim was filed prior to that date. Therefore, the amended regulation does not apply. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with claims for service connection. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. While the RO reopened the veteran's claim for service connection for a brain tumor and considered the claim on a de novo basis, the Board is not bound by that determination and is, in fact, required to conduct an independent new and material evidence analysis in claims involving final rating decisions. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd No. 95-7058 (Fed. Cir. May 6, 1996). In this regard, using the guidelines noted above, the Board finds that new and material evidence has been presented. Hence, the claim concerning service connection for a brain tumor is reopened. Service connection for a brain tumor was originally denied in April 1997. In that decision, the RO observed that there was no evidence showing that the veteran's brain tumor was diagnosed in service or within one year of his service discharge. The RO acknowledged the veteran's assertion that his tumor was caused by his exposure to contaminated water while he was stationed at Wurtsmith Air Force Base (AFB), and that there was evidence documenting the existence of groundwater contamination at that facility. However, the RO concluded that the veteran had not submitted any competent evidence that related his brain tumor to his active service including exposure to contaminated drinking water. The evidence considered at that time consisted of service medical records, reports from D.H. Dudley, M.D., and J.E. Hammrick, M.D., a fact sheet from the Michigan Department of Natural Resources, and a March 1997 VA examination report. The veteran did not perfect an appeal. The April 1997 rating decision therefore became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). The evidence received by VA after the April 1997 decision includes a statement from R.J. Hohl, M.D.. Dated in July 2001, Dr. Hohl reported that he had been the oncologist managing the veteran since 1998. He said the veteran suffered from a low grade oligodendroglioma, which was a tumor involving his central nervous system. He stated that the veteran provided a history of excessive exposure to vinyl chloride and trichloral ethylene during his active service. He referenced a report pertaining to a United States Air Force Installation Restoration Program. He also cited two medical treatises that addressed the relationship between intercranial gliomas like the one experienced by the veteran and exposure to carcinogens such as vinyl chloride. In this regard, Dr. Hohl rendered the opinion that the veteran's exposure to there aforementioned carcinogens during his active duty "substantially contributed to and likely caused him to develop his low grade glioma." The July 2001 statement from Dr. Hohl clearly draws an etiological link between the veteran's brain tumor and his exposure to chemicals during his active service. This evidence is not cumulative or redundant of the evidence previously of record. This evidence is so significant that it must be considered in order to fairly decide the merits of the claim. The July 2001 statement is therefore new and material; consequently, the claim for service connection for a brain tumor is reopened. Having reopened the claim, the Board must now consider whether service connection for a brain tumor is warranted. The evidence clearly establishes that the veteran was diagnosed as having an oligodendroglioma of the left temporal lobe in 1991. There is also evidence showing a causal relationship between the type of brain tumor experienced by the veteran and his exposure to chemicals (vinyl chloride) in service. The July 2001 statement from Dr. Hohl is conclusive on this point. At noted above, Dr. Hohl stated veteran's exposure to carcinogens such as vinyl chloride during his active duty "substantially contributed to and likely caused him to develop his low grade glioma." The reports of VA examinations conducted in May and July 2000 do not disprove this conclusion. Indeed, although it could "never be proven one way or the other," the July 2000 report indicated that it was "at least possible the veteran did receive exposure to carcinogenic material leading to his oligodendroglioma." Similarly, in the May 2000 report, the same examiner stated that it was "conceivable" the veteran's exposure to chemicals (vinyl chloride) caused his brain tumor but that it could not be proven since the origin of the tumor was unknown and the degree of exposure was also unknown. The Board acknowledges that treatment notes from the veteran's treating physician at the Mayo Clinic (Dr. Hammrick) are disfavorable to the claim. In a treatment note dated in May 1997, Dr. Hammrick indicated that she did not think that the small amount of vinyl chloride that the veteran was exposed to in service caused his brain tumor. She said the exposure had to be significant and prolonged, which the veteran did not have. She added in December 1997 that she did not believe there was a correlation between the tumor and the veteran's in-service exposure to vinyl chloride. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, both Drs. Hohl and Hammrick have personal knowledge of the veteran's tumor because each treated him at different times. The physicians also based their opinions on research and their expertise in the area of oncology. Further, they provided ample rationale for their divergent conclusions. The opinions rendered by Drs. Hohl and Hammrick are essentially of equal probative value. The VA examination reports, which suggest there is at least "conceivable" that the veteran's brain tumor was caused by his in-service exposure to chemicals including vinyl chloride, are at least in equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board therefore finds that the evidence supports the finding that there is an etiological relationship between the development of brain tumor such as oligodendroglioma of the left temporal lobe and exposure to chemicals, to include vinyl chloride. A review of the veteran's appeal does end here, however. The Board must next consider whether the veteran's exposure to vinyl chloride or other chemicals was high enough to have caused the brain tumor. The May and July 2000 VA examination reports both indicated that the causal relationship between the veteran's tumor and his in-service exposure to vinyl chloride was dependent on his level of exposure. In this regard, the evidence is far from being conclusive. Service personnel records show that the veteran was stationed a Wurtsmith AFB from 1977 to April 1982. During that time, there is little question as to whether the veteran was exposed to vinyl chloride in service. The November 1990 Fact Sheet from the Michigan Department of Natural Resources indicated that there were at that time four major plumes of contamination emanating from Wurtsmith AFB, and that at least one of the plumes involved vinyl chloride. The contamination at Wurtsmith AFB is also documented in a March 1997 Remedial Action Plan (Action Plan) that was prepared for Wurtsmith AFB. The Plan provides a detailed history of the contamination that occurred at Wurtsmith, which consisted primarily of three landfills that were used for storing fuels, oils, solvents, lubricants, thinners, and other waste products consistent with base operations. The landfills were utilized from 1960 until 1979. Actions to clean-up up the facility began shortly thereafter. In considering the human health risk, the Action Plan indicated that testing samples taken in 1996 showed no chemicals of potential concern (including vinyl chloride), and that, because there were no chemicals of potential concern, non- cancer hazards and theoretical excess lifetime cancer risks were negligible. However, using a worst-case or average-case scenario, it was noted that the estimated potential non- carcinogenic hazards and theoretical excess lifetime cancer risks to a resident adult "would exceed MDEQ criteria" due to the presence of vinyl chloride in the groundwater. This report seems to suggest that the hazard potential was relatively low. However, the Board is conscious of the fact that this determination was made in 1997, which was 15 years after the veteran left Wurtsmith and 17 years after clean up operations were started. The elapsed time between the veteran's stationing at Wurtsmith and the testing performed at that facility is addressed in a March 2001 Department of Health and Human Services (DHHS) Memorandum. This memorandum was prepared in order to address the concerns of a former Wurtsmith AFB employee who had been assigned to the base between 1978 and 1982 and diagnosed as having a brain tumor in 1991. In this regard, DHHS indicated that water samples taken in the late 1970s and early 1980s were not analyzed for vinyl chloride. DHHS was therefore unable to determine whether the employee was actually exposed to vinyl chloride. It was noted, however, that samples taken between 1983 and 1997 were positive for vinyl chloride. As concentration of vinyl chloride from those samples was assessed as being too low to pose a health hazard to people exposed to on-base drinking water wells, DHHS indicated that it would not be expected that the employee's pre-1982 exposure to vinyl chloride would have been harmful. However, it was also noted that it was possible that the employee was exposed to high concentrations of vinyl chloride because the testing had been performed after groundwater treatment efforts had been initiated and the contaminated wells had been taken offline. DHHS therefore observed that it was possible that the employee consumed more harmful contaminated water than the 1983 through 1997 data would reflect. Careful consideration has been given the DHHS Memorandum, Remedial Action Plan, and other evidence that addressed the contamination that occurred at Wurtsmith AFB. There is no definitive evidence addressing the level of vinyl chloride toxicity at Wurtsmith during the period of time (1977 to 1982) when the veteran was stationed at that facility. As discussed above, the Action Plan was focused on the present and future risk of exposure to those who lived in the area surrounding Wurtsmith. The DHHS Memorandum clearly noted, however, that the use of the landfills had ceased many years prior to the testing and after clean up operations had been initiated. There is simply no clear way to determine the level of exposure experienced by the veteran. All the same, considering DHHS's finding that the levels of vinyl chloride toxicity could been much higher than when samples were taken in 1983, the Board concludes that the evidence is at least in equipoise, and that the veteran's exposure to vinyl chloride or other chemicals was high enough to have caused his brain tumor as indicated by Dr. Hohl. For the reasons set forth above, and resolving the benefit of the doubt in favor the veteran, the Board finds that service connection for a brain tumor (oligodendroglioma) is warranted. Finally, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2005). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of the VCAA have been satisfied with respect to the claim for service connection for a brain tumor, it is the Board's conclusion that the new law does not preclude the Board from adjudicating the claim. This is so because the Board is taking action favorable to the veteran by granting service connection for a brain tumor, and thus represents a full grant of the issue on appeal. A decision therefore poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for a brain tumor is granted. Entitlement to service connection for an oligodendroglioma of the left temporal lobe is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs