Citation Nr: 0711033	
Decision Date: 04/13/07    Archive Date: 04/25/07

DOCKET NO.  02-13 528	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to service connection for residuals of a brain 
tumor, status post left frontal temporal craniotomy.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel

INTRODUCTION

The veteran had active service from September 1960 to 
September 1962.  

This case is before the Board of Veterans' Appeals (Board) on 
appeal from a June 2000 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in San Diego, 
California, which determined that new and material evidence 
had not been submitted to reopen the claim of service 
connection for residuals of a brain tumor, status post left 
frontal temporal craniotomy.  The veteran testified before 
the undersigned Veterans Law Judge at a Travel Board hearing 
in February 2004.  A transcript of his testimony is 
associated with the claims file.  

Service connection for headaches and/or a brain tumor was 
initially denied by the Board in a September 1982 decision.  
The veteran subsequently testified at a personal hearing 
before a Hearing Officer at the RO in January 1985, and a 
copy of that transcript is also associated with the claims 
file.  In a September 2004 decision, the Board reopened the 
previously denied claim of service connection for the 
residuals of a brain tumor, status post left frontal temporal 
craniotomy, and remanded the matter back to the RO, via the 
Appeals Management Center (AMC) for additional development.  

After completion of the requested development, the RO/AMC 
issued a supplemental statement of the case in September 2005 
and returned the case to the Board.  The Board subsequently 
requested an independent medical opinion pursuant to 
38 C.F.R. § 3.328 and 20.901(d).  The opinion was secured and 
associated with the claims file in November 2006, and the 
veteran submitted additional evidence in support of his claim 
in response to the medical opinion, with a waiver of review 
by the Agency of Original Jurisdiction (AOJ).  The case is 
now ready for appellate review and disposition.  





FINDINGS OF FACT

1.  The veteran's brain tumor clearly and unmistakably pre-
existed service and was not aggravated by service.

2.  The medical evidence of record demonstrates that any 
permanent increase in severity of the veteran's pre-existing 
brain tumor during service was due to the natural progression 
of the disease.  

3.  The evidence does not demonstrate that the veteran's 
current residuals of a brain tumor status post left frontal 
temporal craniotomy are related to the veteran's military 
service.  


CONCLUSIONS OF LAW

1.  The presumption of soundness at entry into service is 
rebutted by clear and unmistakable evidence demonstrating 
that the veteran had a pre-existing brain tumor that was not 
aggravated during service; no permanent increase in severity 
was shown other than that which is due to the natural 
progression of the disease.  38 U.S.C.A. §§ 1110, 1111, 1131, 
1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006).

2.  A brain tumor was not incurred in or aggravated by 
service, and may not be presumed to have been aggravated 
therein.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103(a), 
5013A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 
3.303, 3.307, 3.309(a) (2006).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; and (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in his or her possession 
that pertains to the claim, in accordance with 38 C.F.R. § 
3.159(b)(1).  See Pelegrini v. Principi, 18 Vet. App. 112 
(2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd 
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In Pelegrini, the U.S. Court of Appeals for Veterans Claims 
held, in part, that a adequate notice, as required by 38 
U.S.C.A. § 5103(a), must be provided to a claimant before the 
initial unfavorable AOJ decision on a claim for VA benefits.  
In the present case, this was not done.  However, as 
discussed below, the Board finds that the duty-to-assist 
notification provided to the veteran was adequate.

In the Mayfield case, the U.S. Court of Appeals for the 
Federal Circuit addressed the meaning of prejudicial error 
(38 U.S.C.A. § 7261(b)), what burden each party bears with 
regard to the Court's taking due account of the rule of 
prejudicial error, and the application of prejudicial error 
in the context of the VA's duty to notify (38 U.S.C.A. § 
5103(a)).  The Federal Circuit held, in effect, that the 
Board must specify what documents satisfy the duty to provide 
notice to a claimant, and that the Court of Appeals for 
Veterans Claims must, if a case is appealed to the Court, 
specifically review the Board's findings regarding such 
notice.  Considering the decisions in Pelegrini and Mayfield, 
the Board finds that the notice requirements have been 
satisfied in this matter, as discussed below.

In November 2001, May 2003 and September 2004 letters, the RO 
informed the veteran of its duty to assist him in 
substantiating his claim, and the effect of this duty upon 
his claim.  In addition, the veteran was advised, by virtue 
of a detailed September 2003 statement of the case (SOC) and 
September 2005 supplemental statement of the case (SSOC) 
issued during the pendency of this appeal, of the pertinent 
law, and what the evidence must show in order to substantiate 
his claims.  The Board therefore finds that appropriate 
notice has been given in this case.  Further, the claims file 
reflects that the SOC and SSOC contained the new duty-to-
assist regulation codified at 38 C.F.R. § 3.159 (2005).  See 
Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).  As the 
Federal Circuit Court has stated, it is not required "that 
VCAA notification must always be contained in a single 
communication from the VA."  Mayfield, supra, 444 F.3d at 
1333.

The Board concludes that the notifications received by the 
veteran adequately complied with VA's duty-to-assist and 
subsequent interpretive authority, and that he has not been 
prejudiced in any way by the notice and assistance provided 
by the RO.  See Bernard v. Brown, 4 Vet. App. 384, 393-94 
(1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)).  
Likewise, it appears that all obtainable evidence identified 
by the veteran relative to his claims has been obtained and 
associated with the claims file, and that neither he nor his 
representative has identified any other pertinent evidence, 
not already of record, which would need to be obtained for a 
fair disposition of this appeal.  Thus, for these reasons, 
any failure in the timing or language of duty-to-assist 
notice by the RO constituted harmless error.  See also Conway 
v. Principi, 353 F.3d 1359, 1374 (2004), holding that the 
Court of Appeals for Veterans Claims must "take due account 
of the rule of prejudicial error."

Accordingly, the Board finds that VA has satisfied its duty 
to assist the veteran in apprising him as to the evidence 
needed, and in obtaining evidence pertaining to his claims.  
The Board, therefore, finds that no useful purpose would be 
served in remanding this matter for yet more development.  
Such a remand would result in unnecessarily imposing 
additional burdens on VA, with no additional benefit flowing 
to the veteran.  The Court of Appeals for Veterans Claims has 
held that such remands are to be avoided.  See Winters v. 
West, 12 Vet. App. 203 (1999) (en banc), vacated on other 
grounds sub nom.  Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 
2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); 
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  See also 
Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc).

In addition to the foregoing harmless-error analysis, to 
whatever extent the recent decisions of the Court in Dingess 
v. Nicholson, 19 Vet. App. 473 (2006), and Kent v. Nicholson, 
20 Vet. App. 1 (2006) requires more extensive notice in 
claims for compensation, e.g., as to what evidence is 
considered new and material, and as to potential downstream 
issues such as disability rating and effective date, the 
Board finds no prejudice to the veteran in proceeding with 
the present decision.  Since the claim of service connection 
was reopened in 2004, any defect in the notice regarding what 
constitutes new and material evidence is also harmless error; 
and since the reopened claim for service connection is being 
denied, no disability rating or effective date will be 
assigned, so there can be no possibility of any prejudice to 
the veteran.

II.  Service Connection

The veteran seeks service connection for residuals of a brain 
tumor, status post left frontal temporal craniotomy.  The 
veteran maintains that the early manifestations of his brain 
tumor were present during service.  The veteran also asserts 
that the military should be held responsible for not 
discovering his tumor during service based on his continuous 
complaints of seizures, paralysis, dizziness and headaches.  
In this regard, the veteran asserts that radiographic testing 
such as a CT scan performed during service, or shortly 
thereafter, would have shown the presence of the tumor.  

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of preexisting injury 
suffered or disease contracted in the line of duty.  38 
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006).

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) (2006).

Where there is a chronic disease shown as such in service or 
within the presumptive period under § 3.307 so as to permit a 
finding of service connection, subsequent manifestations of 
the same chronic disease at any later date, however, remote, 
are service connected, unless clearly attributable to 
intercurrent causes.  38 C.F.R. § 3.303(b) (2006).

This rule does not mean that any manifestations in service 
will permit service connection.  To show chronic disease in 
service there is required a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic".  When the disease entity is 
established, there is no requirement of evidentiary showing 
of continuity.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  38 C.F.R. § 
3.303(b) (2006).

Continuous service for 90 days or more during a period of 
war, or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as a brain 
tumor, to a degree of 10 percent within one year from the 
date of termination of such service, establishes a rebuttable 
presumption that the disease was incurred in service.  38 
U.S.C.A. §§ 1101, 1112, 1113; 1137 (West 2002); 38 C.F.R. §§ 
3.307, 3.309 (2006).

The Court has held that, in order to prevail on the issue of 
service connection, there must be medical evidence of a (1) 
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 
present disease or injury.  Hickson v. West, 12 Vet. App. 
247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 
(1999).

The Board notes that a veteran is presumed in sound condition 
except for defects noted when examined and accepted for 
service.  Clear and unmistakable evidence that the disability 
existed prior to service and was not aggravated by service 
will rebut the presumption of soundness.  38 U.S.C.A. § 1111 
(West 2002); VAOPGCPREC 3-2003.  A pre-existing disease will 
be considered to have been aggravated by active service where 
there is an increase in disability during service, unless 
there is a specific finding that the increase in disability 
is due to the natural progression of the disease.  38 
U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2006).

In VAOGCPREC 3-2003, the VA's General Counsel determined that 
the presumption of soundness is rebutted only where clear and 
unmistakable evidence shows that the condition existed prior 
to service and that it was not aggravated by service.  The 
General Counsel concluded that 38 U.S.C.A. § 1111 requires VA 
to bear the burden of showing the absence of aggravation in 
order to rebut the presumption of sound condition.  See also 
Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant 
v. Principi, 17 Vet. App. 116, 123-30 (2003).

The effect of section 1111 on claims for service-connected 
disability thus may be summarized as follows.  When no 
preexisting condition is noted upon entry into service, the 
veteran is presumed to have been sound upon entry.  The 
burden then falls on the government to rebut the presumption 
of soundness by clear and unmistakable evidence that the 
veteran's disability was both preexisting and not aggravated 
by service.  The government may show a lack of aggravation by 
establishing that there was no increase in disability during 
service or that any "increase in disability [was] due to the 
natural progress of the" preexisting condition.  38 U.S.C.A. 
§ 1153.  If this burden is met, then the veteran is not 
entitled to service-connected benefits.  However, if the 
government fails to rebut the presumption of soundness under 
section 1111, the veteran's claim is one for service 
connection.  This means that no deduction for the degree of 
disability existing at the time of entrance will be made if a 
rating is awarded.  Wagner v. Principi, 370 F. 3d 1089, 1096 
(Fed. Cir. 2004).

Regulations also provide that a preexisting injury or disease 
will be considered to have been aggravated by active 
military, naval, or air service where there is an increase in 
disability during such service, unless there is a specific 
finding that the increase in disability is due to the natural 
progress of the disease.  38 U.S.C.A. §§ 1137, 1153 (West 
2002); 38 C.F.R. § 3.306(a) (2006).

The presumption of aggravation is not applicable unless the 
preservice disability underwent an increase in severity 
during service.  See Hunt v. Derwinski, 1 Vet. App. 292, 296 
(1991).  The determination of whether a preexisting 
disability was aggravated by service is a question of fact.  
See Doran v. Brown, 6 Vet. App. 283, 286 (1994).  In deciding 
a claim based on aggravation, after having determined the 
presence of a preexisting condition, the Board must first 
determine whether there has been any measured worsening of 
the disability during service and then whether such worsening 
constitutes an increase in disability or was the result of 
natural progression of the injury or disease.  See Browder v. 
Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. 
App. 155, 163 (1993).  Temporary or intermittent flare-ups of 
the preexisting condition during service are not sufficient 
to be considered aggravation unless the underlying condition 
(as contrasted to the symptoms) has worsened.  See Davis 
(John F.) v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002); 
Hunt, 1 Vet. App. at 296-97.

The Court held that, in cases where a condition is properly 
found to have preexisted service, the Board, in considering 
the pertinent statutory and regulatory framework governing 
the presumption of aggravation, must determine: (1) Whether 
there was a worsening of the disorder during service; and (2) 
if so, whether there was clear and unmistakable evidence that 
the increase in severity was due to the natural progress of 
the disease.  See Crowe v. Brown, 7 Vet. App. 238 (1995).

The Board must assess the credibility and weight of all the 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  See Masors 
v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 
Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).  Equal weight is not accorded to each piece of 
evidence contained in the record; every item of evidence does 
not have the same probative value.  

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise, with 
the veteran prevailing in either event, or whether a 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).

Historically, the veteran's military entrance examination 
report from July 1960 noted the veteran's reported history of 
headaches and dizziness in 1956, which were attributed to 
tension.  The remainder of the service medical records are 
negative for complaints, treatment or diagnosis of headaches.  
There notations of treatment for acute gastrointestinal 
complaints in October and December 1960 and March 1961, 
although no chronic disorder was noted.  Additionally, the 
service medical records are silent as to a brain tumor or 
manifestations therefrom.  The August 1962 separation 
examination report is negative for any pertinent abnormality, 
although the veteran continued to report a history of 
dizziness, trouble sleeping, nervousness, eye trouble, 
gastrointestinal trouble, and nightmares; he denied a history 
of frequent or severe headaches.  

In numerous post-service medical evaluations and reports, the 
veteran reported that he began to experience a variety of 
symptoms during his senior year of high school, including 
loss of energy and strength, dizziness, headaches, temporary 
loss of hearing in his left ear, nausea, vomiting and severe 
problems with excessive gas and constipation.  He also 
reported difficulty concentrating in school and he began to 
experience mood swings.  Those symptoms and related life 
difficulties such as the inability to hold a job, persisted 
for over twenty years without relief.  

Post-service medical evidence of record indicates that the 
veteran underwent surgery for a brain tumor in June 1980.  
The veteran submitted a claim of service connection for 
residuals of a brain tumor shortly thereafter, in June 1981.  
In his initial claim for service connection, the veteran 
reported that he had the tumor at the time he entered 
service, and that he went on sick call numerous times during 
service for "headaches."  

A letter dated in June 1969 from a private Dr. Holleran, 
which was initially received at the RO in 1981, indicated 
that the veteran had a chief complaint of severe numbness of 
the left side of the head and he got very sleepy.  Past 
history included being hit on the forehead with a wrench in 
1963 and subsequently being hit with a tire iron on the left 
side of the head in 1964.  

A June 1969 private treatment report showed complaints of 
dizziness.  An x-ray report of the skull revealed normal 
sella and an uncalcified pineal.  There was no unusual 
intracranial calcification or evidence of increased pressure 
nor was there healing or recent skull fracture.  The 
conclusion was "normal skull."  Likewise, a June 1969 
electro-encephalogram (EEG) was interpreted as normal.

In correspondence dated October 1969, a private Dr. Greenwood 
indicated that he examined the veteran in August 1969.  At 
that time, the veteran's chief complaint was generalized 
weakness.  The veteran reported that symptoms of stomach 
trouble began in 1959, but more recently, he had periods of 
dizziness.  Neurological examination showed a paucity of 
speech; thought was slow, and somewhat disconnected in 
sequence of history and symptoms.  The impression was, 
"Undiagnosed condition of the central nervous system, 
manifested by generalized weakness, occasional dizziness, 
with vomiting, constipation, pain in the abdomen, etc."  

January 1974 correspondence notes that the veteran had to 
recently stop attending college due to extreme tiredness and 
trouble concentrating.  

A September 1978 private treatment record noted the veteran 
reported occasional headaches.  Private treatment records 
from 1979 noted his complaints of blurring in the left eye.  
Diagnostic testing in 1980, including a CT scan revealed a 
brain tumor.  A May 1980 cerebral angiogram revealed 
asymmetric enlargement of the sella with erosion and 
destruction of the floor and dorsum on the left, erosion of 
the left anterior clinoid and left clivus.  There was a large 
mass identified, primarily located in the left temporal 
fossa.  A May 1980, a private hospital admission report noted 
that a month prior, the veteran had developed a left central 
scotomata, and was seen by an ophthalmologist.  The veteran 
reported that he had been clumsy since high school and 
developed some psychosomatic disturbances because of his 
clumsiness, and occasional difficulty with motor movement.  

On June 2, 1980 the veteran underwent left frontotemporal 
craniotomy for partial removal of a huge ("grapefruit" 
size) frontotemporal dural tumor.  Because of the size, the 
tumor had displaced the Sylvian figure and other cortical 
structures, and filled the entire middle fossa.  Some sinuses 
and the posterior tentorium were penetrated, and the fifth 
(trigeminal) nerve had to be sacrificed.  Some of the 
surrounding bone had deteriorated, indicating longstanding 
presence of the tumor.  Postoperatively, the veteran 
experienced a resultant neurological deficit and nerve palsy.  
The discharge diagnosis was frontotemporal schwannoma, with 
residual third and sixth nerve palsies, secondary to excision 
of the tumor.  

In a May 1981 letter, the vice principal of the veteran's 
high school reported that, because of constant complaints of 
headaches, the veteran missed approximately four months of 
school during the 1958 school year.  In November 1981 
correspondence, a fellow serviceman, who served with the 
veteran, recalled the veteran as having headaches during 
service.  

In a lay statement, submitted in January 1982, a fellow high 
school classmate recalled the veteran's complaints of severe 
headaches in 1958 and indicated that during that time, he 
noticed that the veteran seemed confused or disoriented at 
times.

A March 1984 memorandum from the veteran's treating physician 
at that time noted that the tumor showed no evidence of 
recurrence as assessed by yearly brain scans and physical 
examination.  However, the doctor noted that the veteran was 
left with considerable residual disability including complete 
left ptosis, complete left third nerve palsy with reduced 
visual acuity in the left eye at 20/400.  There was also 
muscle wasting over the masseter and temporalis muscles on 
the left and a hemisensory facial loss conforming to the 
distribution of the 5th cranial nerve.  His residual 
disability was therefore assessed as stationary and permanent 
at 80-100 percent.  The doctor also noted that the veteran 
had symptoms dating back as early as 1958 and it was 
noteworthy that he was out of school for 4 months because of 
complaints of headaches, nightmares, and dizziness.  The 
doctor also indicated that the veteran voiced similar 
complaints during service; however, he did not undergo 
sufficient diagnostic studies to diagnose the tumor until 
1980.  

In another letter dated in March 1984, the veteran's surgeon, 
Dr. Marshall indicated that he, too, found it noteworthy that 
the veteran was out of school for 4 months in 1958; however, 
it was impossible to absolutely determine whether the brain 
tumor was present in 1958.  Nevertheless, given the veteran's 
complaints of severe clumsiness, Dr. Marshall concluded that 
it was possible, although not absolutely certain, that the 
tumor was present in the 1950's.  

At a personal hearing before a Hearing Officer at the RO in 
January 1985, the veteran testified that he experienced 
symptoms during service which he believed were manifestations 
of his brain tumor, such as nausea, vomiting, dizziness, 
black-outs, loss of sense of taste and scent, nightmares and 
hallucinations.  

Additional private treatment records dated throughout the 
late 1980's, the 1990's, and this decade, continue to 
demonstrate treatment for residuals of a brain tumor and 
current disability associated with such, including residual 
cranial nerve deficits affecting the 4th, 5th, and 6th cranial 
nerves, partial complex seizures, sleep disorder, and in 
March 2003, the veteran developed severe left Bell's palsy.  

At his personal hearing in February 2004 before the 
undersigned Veterans Law Judge, the veteran testified that he 
consistently complained of the same symptoms of headaches, 
dizziness, nightmares, constipation, etc., beginning in 1958 
and continuing until his surgery in 1980.  The veteran 
testified that he consistently sought treatment for his 
complaints, and was frustrated that nobody would listen to 
him.  

At a VA examination in March 2005, the veteran reiterated his 
assertions regarding the likely onset of his brain tumor.  
The examiner noted a diagnosis of left frontotemporal 
neurilemoma and residuals from surgery.  The examiner opined 
that the veteran did have manifestations of a brain tumor 
when he entered the service, given the veteran's complaints 
of headaches, dizziness and GI symptoms at that time, which 
the examiner explained were frequently part of the 
presentation of a person with a brain tumor.  Additionally, 
the examiner indicated that the veteran's symptoms associated 
with the brain tumor probably progressed minimally during 
service.  To support this conclusion, the examiner noted that 
the service medical records were sparse regarding complaints 
of symptoms that might be related to a brain tumor.  The 
examiner reviewed the service medical records and noted only 
three entries that might relate to a brain tumor during his 
two years of service.  Additionally, the examiner pointed to 
the fact that his symptoms did not manifest to a degree at 
which the brain tumor was diagnosed until eighteen years 
later, which indicated that it had to be a very slowly 
progressing lesion.  The examiner summarized that the 
veteran's tumor was a very slowly progressing tumor that had 
nothing to do with him being in the service; however, the 
veteran did present with symptoms prior to service, and 
during service, which, in retrospect, were related to the 
tumor.  The examiner concluded that it was more likely than 
not that the veteran had the tumor while he was in service; 
he presented with symptoms that were at least as likely as 
not related to the tumor when he entered service, and during 
service; and it was at least as likely as not that there was 
no increase beyond the natural progression of the disorder 
when he was in the service.  

In support of his claim, the veteran submitted a January 2006 
private medical opinion from Dr. Craig N. Bash.  Dr. Bash 
opined that the veteran's pituitary region neurilemoma tumor 
significantly advanced and progressed permanently during his 
military service.  Dr. Bash indicated that the veteran had 
symptoms of brain tumor while in service which included 
visual symptom changes.  More specifically, Dr. Bash noted 
that the veteran had normal vision on entry into service, but 
on discharge, the veteran noted having "eye trouble."  Dr. 
Bash further indicated that, "Eye trouble very likely 
represents a serious major progression of symptoms, in this 
patient, because his pituitary region tumor, (as documented 
on MRI scans), even though slow growing, was likely 
responsible for his eye trouble during service because his 
record does not contain any other more likely cause and the 
tumor was growing very near the optic tracts and/or chiasm."  
Dr. Bash also felt that it should be noted that the veteran 
was currently blind in his left eye due to surgical removal 
of the tumor in 1980 and its location near the optic 
chiasm/radiations.  Finally, Dr. Bash was certain that the 
veteran's tumor, more likely than not, did not predate his 
service because his symptoms were thought to be due to 
gastrointestinal diagnosis and he entered service with a 
normal physical.  

Upon further appellate review, the Board noted the 
conflicting opinions of the VA examiner and Dr. Bash, also 
noting that Dr. Bash primarily relied on the separation 
Report of Medical History on which the veteran indicated that 
he had experienced "eye trouble."  In an attempt to clear 
up any uncertainty regarding this matter, the Board requested 
an independent medical expert (IME) opinion in August 2006, 
from a doctor specializing in neurology to answer the 
following questions:

1.  Did the veteran have manifestations 
of a brain tumor when he entered service?

2.  If the answer to question 1 is yes, 
did those symptoms undergo a permanent 
increase in severity during service, and 
if so, was the increase beyond the 
natural progression of the disorder?  In 
answering this question, please address 
Dr. Bash's assertion that the veteran had 
a permanent vision loss during service 
which was related to the brain tumor.  

3.  If the answer to question 1 is no, 
were initial manifestations of a brain 
tumor shown during service, or within one 
year of the veteran's separation from 
service; and/or was the veteran's post-
service brain tumor otherwise related to 
service?  

In November 2006, Dr. W, an associate professor of neurology 
from Howard University Hospital provided a response.  Dr. W 
first summarized the medical evidence in the claims file, as 
already noted hereinabove.  Next, Dr. W opined that the 
large, low/non-invasive tumor began growth before 1960.  Dr. 
W also noted that during the veteran's service, the tumor's 
growth was evidently gradual and unremarkable.  Dr. W 
indicated that there was no apparent reason to presume 
something worse.  In response to Dr. Bash's opinion, Dr. W 
indicated that a documented visual acuity of 20/20 [at 
discharge] does not support a complaint of visual changes or 
worsening.  Additionally, Dr. W referred to an August 2, 1979 
report that notes, "vision Left eye blurry - started about 2 
weeks ago."  Finally, Dr. W indicated that the CT scan of 
the brain was first developed by Hounsfield in 1972-3.  By 
1980 it was a standard of care/assessment, but was 
unavailable for most of the years of growth of the veteran's 
tumor.  

Thus, in sum, the medical evidence in this case indicates 
that the veteran clearly suffered from symptoms of headaches, 
dizziness, lethargy, nightmares, weakness and 
gastrointestinal symptoms during high school in 1958, prior 
to service.  This is supported by the veteran's own 
statements, statements of schoolmates, and teachers.  
According to the veteran, these symptoms continued throughout 
service, and for the following eighteen years, at which time, 
the veteran was diagnosed with a brain tumor.  Diagnostic 
tests, medical and surgical reports, and subsequent post-
operative treatment reports all note that the veteran's brain 
tumor was the extremely slow-growing type, and the veteran's 
doctors have agreed that the brain tumor probably pre-existed 
service, given the consistent and steady stream of symptoms 
reported by the veteran since 1958.  Additionally, the VA 
opinion of March 2005 and the IME opinion of November 2006 
also support a finding that the veteran's brain tumor pre-
dated service.  

As noted above, when no preexisting condition is noted upon 
entry into service, as in this case, the veteran is presumed 
to have been sound upon entry.  The burden then falls on the 
government to rebut the presumption of soundness by clear and 
unmistakable evidence that the veteran's disability was both 
preexisting and not aggravated by service.  As to the first 
prong of this analysis, the Board finds that, given the 
medical evidence as noted hereinabove, the veteran's brain 
tumor clearly and unmistakably pre-existed service.  This is 
based on lay statements regarding the veteran's symptoms 
beginning in 1958, supported by multiple doctor's opinions as 
noted above, which overwhelmingly support a finding that the 
veteran's brain tumor pre-existed service.  In this regard, 
the Board notes that the veteran is competent to testify as 
to his experiences and symptoms.  See Washington v. 
Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 
Vet. App. 465, 469-71 (1994) (holding that lay testimony is 
competent if it is limited to matters that the witness has 
actually observed and is within the realm of the witness' 
personal knowledge).  

The Board acknowledges Dr. Bash's January 2006 opinion letter 
in which he opines that the veteran's brain tumor did not 
pre-date service; however, this opinion is completely 
inconsistent with his own statement in that same opinion 
letter that, "the crux of this issue revolves around the 
question concerning a permanent increase in symptoms of this 
patient's brain tumor while he was in the service."  If the 
brain tumor did not pre-date service, as Dr. Bash has 
concluded, then the crux of the issue in this case would 
involve the question of whether the brain tumor was incurred 
in service; not whether there was any increase in severity 
during service as Dr. Bash suggested.  In fact, the question 
of whether the brain tumor increased in severity during 
service would be moot if the brain tumor did not pre-date 
service.  Thus, Dr. Bash is essentially admitting that the 
brain tumor pre-existed service, yet he ultimately concludes 
that the tumor did not pre-date service.  Furthermore, Dr. 
Bash reasoned that the brain tumor did not pre-date service 
because the veteran's pre-service symptoms were thought, by 
medical professionals, to be due to a gastrointestinal 
diagnosis.  This argument is fatally flawed.  While the 
medical evidence of record does indeed show that medical 
professionals, prior to service and during service, 
attributed the veteran's pre-service symptoms to a 
gastrointestinal diagnosis, they did so before anyone had any 
knowledge that the veteran had a brain tumor.  Doctors since 
that time have agreed, in hindsight, that it is likely that 
the veteran's symptoms in 1958 were manifestations of a brain 
tumor.  It would have been impossible to opine otherwise 
prior to 1980 because the existence of a brain tumor was not 
known prior to that date.  In other words, the fact that the 
veteran's symptoms prior to service may have been attributed 
to a gastrointestinal diagnosis at that time does not, on its 
face, discount a future opinion that is proffered on the 
basis of a more complete record which includes additional 
pertinent medical evidence, in this case the existence of a 
slow-growing brain tumor.  Thus, Dr. Bash's argument that the 
veteran's brain tumor did not pre date is completely without 
merit.  

The Board now turns to the second prong in the analysis; 
whether there is clear and unmistakable evidence that the 
veteran's pre-existing brain tumor was aggravated during 
service.  The government may show a lack of aggravation by 
establishing that there was no increase in disability during 
service or that any "increase in disability [was] due to the 
natural progress of the" preexisting condition.  38 U.S.C.A. 
§ 1153.  If this burden is met, then the veteran is not 
entitled to service-connected benefits.  

The evidence in this case clearly shows that the veteran's 
brain tumor was slow growing.  This fact is undisputed, and 
there is no opinion to the contrary.  In addition, various 
medical professionals have opined that the veteran's pre-
existing brain tumor did not undergo an increase in severity; 
or, if there was any increase in severity, symptoms 
supporting such an increase are not shown during service.  
Moreover, the VA examiner in March 2005 and the IME doctor of 
November 2006 both opined that there was no increase in 
severity of the veteran's slow-growing tumor during service.  
In fact, the VA examiner in March 2005 also noted that the 
veteran's brain tumor had nothing to do with the veteran 
being in service.  In other words, there was no event or 
injury in service that could be attributed to the brain 
tumor.  

Likewise, Dr. W, the IME doctor, also determined, based on a 
review of the entire record, that the growth of the tumor 
during service was gradual and unremarkable, and there was no 
apparent reason to presume something worse.  In addition, and 
in response to Dr. Bash's opinion that the veteran's visual 
changes during service were a clear indication of a 
significant worsening of the brain tumor during service, Dr. 
W explained that a documented visual acuity of 20/20 (which 
is noted on the veteran's separation examination in 1962) did 
not support a complaint of visual changes or worsening.  
Thus, although Dr. Bash is convinced that the veteran had 
significant visual changes during service, no such visual 
changes are found in the record.  As noted above, the veteran 
noted on his discharge examination that he had experienced 
"eye trouble" which he did not note on his Report of 
History at induction.  Nevertheless, there is nothing in the 
record which clarifies to what type of eye trouble the 
veteran is referring, or the severity of the claimed eye 
trouble, or whether the veteran was simply including "eye 
trouble" along with his other symptoms of dizziness, 
gastrointestinal symptoms, and the like.  Dr. Bash, has 
evidently concluded, without any supporting documentation or 
evidence, that the veteran's claim of "eye trouble" on his 
Report of History at discharge represents a "significant" 
increase or progression of symptoms.  While "eye trouble" 
noted in 1962 could very well represent, along with the other 
noted symptoms, manifestations directly related to the brain 
tumor, there is no evidence in the record to support a 
finding that that particular notation represents a 
significant increase in severity of symptoms during service, 
particularly given the lack of complaints during service.  
Thus, once again, Dr. Bash's opinion is without merit.  

Certainly it is possible, and perhaps likely, that the 
veteran's pre-existing brain tumor progressed, or grew, 
during service; however, there appears to be no measurable 
growth during that time.  A measurable increase in symptoms 
is not shown during service, and the post-service medical x-
rays and EEG testing from 1969 revealed a normal skull.  
Thus, any increase in severity during service, nearly seven 
years earlier than the 1969 diagnosis of "normal skull" 
would not likely have been significant or beyond the natural 
progression of the disease.  Additionally, an actual 
diagnosis of a brain tumor was not made until 1980, many, 
many years after discharge from service.  Moreover the VA 
examiner in 2005 and Dr. W in November 2006 found no evidence 
in the record to support a finding of an increase in severity 
during service beyond the natural progression of the disease.  

As such, the Board finds that the veteran's pre-existing 
brain tumor clearly and unmistakably did not permanently 
increase in severity beyond the natural progression of the 
disease, and therefore there was no aggravation of a pre-
existing brain tumor during service.  In light of the 
foregoing, the presumption of soundness at entry is rebutted 
by clear and unmistakable evidence showing that the veteran 
had a pre-existing brain tumor that was not aggravated by 
service.  As such, the criteria of service connection are not 
met in this case, and the claim must fail.  

Finally, as noted hereinabove, the veteran has consistently 
argued that the military should be held responsible for not 
discovering the veteran's brain tumor during service.  In 
other words, the veteran argues that the military should have 
been more responsive to his complaints of symptoms during 
service.  To some extent, the veteran appears to be raising 
an argument couched in equity.  The Board is certainly 
mindful of the current severity of the veteran's residuals of 
his brain tumor due to the large size, and, while certainly 
sympathetic to the veteran, the Board is nonetheless bound by 
the law and is without authority to grant benefits on an 
equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); 
Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board has 
decided this case based on its application of this law to the 
pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), 
quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) (noting 
that the Court must interpret the law as it exists, and 
cannot extend benefits out of sympathy for a particular 
claimant).  The Board also notes that the brain tumor was not 
only not discovered during service; but it was eighteen years 
after discharge from service before the tumor was finally 
discovered.  Thus, there remains a large gap of nearly two 
decades between discharge from service and an actual 
diagnosis, during which time other private providers were 
also unable to make the diagnosis.  

As the preponderance of the evidence is against the claim, 
the "benefit-of-the-doubt" rule does not apply, and the Board 
must deny the claim.  See 38 U.S.C.A. § 5107(b) (West 2002); 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The claim of service connection for residuals of a brain 
tumor, status post left frontal temporal craniotomy, is 
denied.  



____________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs