Citation Nr: 0815033 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-35 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for benign schwannoma on the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The veteran served on active duty from November 1967 to October 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of the appeal, the veteran's claims file was transferred to the Atlanta, Georgia RO. FINDINGS OF FACT 1. The veteran served in the Republic of Vietnam, and is presumed to have been exposed to an herbicide agent, to include Agent Orange. 2. In February 2000, the veteran underwent a L1-L2 laminectomy and resection of a benign schwannoma. 3. Residuals of a benign schwannoma are not likely related to herbicide exposure during service in Vietnam. 4. Affording the veteran the benefit of the doubt, benign schwannoma had its onset during active duty service. CONCLUSION OF LAW Benign schwannoma was incurred during active duty service. 38 U.S.C.A. §§ 1101, 1112, 1116, 1137, 5103(A), 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In this case, by letter of July 2003, the RO advised the appellant of the criteria for claims for service connection and provided an opportunity to submit any evidence pertinent to the claim. The appellant submitted relevant private medical treatment records, and during the course of the appeal, the Board forwarded his claims file for review for an expert medical opinion by a VA Veterans Health Administration physician. However, in view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claim. II. Analysis The veteran alleges that residuals of benign schwannoma were incurred as a result of exposure to herbicides during service in the Republic of Vietnam. He does not allege treatment for a benign tumor during service. Rather, the record reveals, that in February 2000, some thirteen years following discharge from service, he underwent a surgical resection of a benign schwannoma at L1-L2. At the time of the surgery, he reported a four-year history of increasing low back and left lower extremity pain. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in a current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A disorder may also be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In this matter, the veteran served in the Republic of Vietnam during the Vietnam era, and is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C.A. § 1116. There is no affirmative evidence to the contrary. For these Vietnam War veterans diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) 3.309(e). The list of associated diseases includes soft tissue sarcomas and malignant schwannomas, but does not include benign schwannomas. 38 C.F.R. § 3.309(e). Thus, there is no presumption under law available to the veteran to aid in linking his residuals of a benign schwannoma to his active duty service in Vietnam. While the veteran is not precluded from otherwise showing that the residuals of a benign schwannoma are related to herbicide agents, here, that theory of entitlement is not supported by the competent medical evidence of record. In this respect, in January 29, 2008, after reviewing the veteran's claims file and the lists of diseases associated with exposure to herbicide agents, the Chief of the Neurology Section at the Atlanta VA Medical Center opined that it was not possible to relate the disease to herbicide exposure in the absence of toxicological or epidemiological data demonstrating such a relationship. Thus, the weight of the evidence is against a finding linking residuals of benign schwannoma to presumed exposure to herbicides agents. Notwithstanding the foregoing, the appellant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, there is competent medical evidence to support the claim that the benign schwannoma had its onset during active duty service. The same examiner who reviewed the veteran's claims file in January 2008 noted that the tumor measured 2 centimeters in length when removed in January 2000. Based upon the growth rate for that type of tumor, he opined that the tumor had an approximate length of 8 millimeters at the time the veteran was discharged from service. Accordingly, the physician opined that the benign schwannoma more likely than not had its onset during a period of active duty service. The Board notes that there is no contrary evidence or medical opinion of record. In view of the above-referenced medical evidence, and affording the veteran the benefit of the doubt, the Board finds that the criteria for a grant of service connection for residuals of a benign schwannoma have been met. ORDER Service connection for residuals of a benign schwannoma is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ STEVEN L. KELLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs