Citation Nr: 1305294 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-24 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for brain disability. 2. Entitlement to service connection for deep venous thrombosis disability. 3. Entitlement to service connection for skin disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to January 1969, with service in the Republic of Vietnam from May to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded to the RO in January 2011. In a January 2008 statement, the Veteran asserted additional claims of service connection for diabetes and for peripheral neuropathy of the bilateral lower and bilateral upper extremities. These matters were referred to the RO for appropriate action in January 2011, with no apparent action having been taken in the interim since then, and so they are again referred to the RO for such action. The issue of service connection for skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board has described the underlying issue as one of service connection for skin disability in recognition of the judicial guidance offered in Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era. 2. The Veteran's grade II atypical brain meningioma is as likely as not related to his presumed Agent Orange exposure during his Vietnam service. 3. The Veteran's deep venous thrombosis was proximately due to his grade II atypical brain meningioma. CONCLUSIONS OF LAW 1. The criteria for service connection for grade II atypical brain meningioma are met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for deep venous thrombosis as secondary to the Veteran's service-connected grade II atypical brain meningioma are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the claims for service connection for grade II atypical brain meningioma and deep venous thrombosis have been granted, no further notification or assistance is necessary, and deciding the appeals on these matters is not prejudicial to the Veteran. 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; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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). 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 C.F.R. § 3.303(d). If a Veteran served in the Republic of Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2012). VA currently recognizes does not presumptively recognize atypical brain meningioma as associated with exposure to herbicides. See 38 C.F.R. § 3.309(e). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignancy, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's service personnel records indicate that he served in the Republic of Vietnam from May to October 1968, and the RO has conceded service in Vietnam as reflected in July 2007 the statement of the case. Since the Veteran served in the Republic of Vietnam during the Vietnam Era, his exposure to Agent Orange while serving in Vietnam is presumed. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309. The Veteran has a current diagnosis of grade II atypical brain meningioma, which was discovered during private treatment in 2006. On VA evaluation in March 2008, he was found to have deep venous thrombosis which was likely provoked by his meningioma. In September 2010, Kelly Schmidt, M.D. indicated that she is a neurosurgeon. She indicated that she had reviewed the Veteran's medical history and noted that the Veteran had a grade II atypical meningioma. She noted that it was well established in the medical literature that a grade I meningioma is a benign, very slow growing tumor, and that it was thought that grade II atypical meningioma can begin as a grade I lesion that converts at some point to the more aggressive, atypical form during the long course of the tumor growth. A grade II atypical meningioma can also develop de novo as a result of exposure to an extreme environmental insult such as radiation. While published data on exposure to Agent Orange and development of an atypical meningioma is not available in the medical literature, there is no question that exposure to Agent Orange would be considered exposure to an extreme environmental insult. In her opinion, the possibility of conversion of a previously benign grade I tumor to an atypical grade II tumor, or the development of a new grade II atypical tumor after exposure to Agent Orange certainly exists. She stated that the Veteran's tumor very possibly could have been present for a period of 30 to 40 years. The Veteran had been evaluated in service for nervousness, mental difficulties, and sinus pressure, all of which could additionally be consistent with an early diagnosis of a frontal lobe brain tumor. After reviewing the Veteran's partial service medical record, being involved in the Veteran's surgical procedures, and with her understanding of the use and potential consequences of the pesticide Agent Orange, she was of the professional opinion that the Veteran's giant grade II atypical meningioma found and removed in 2006 was as likely as not (with at least a 50 percent probability) incurred or aggravated during the time period of 1965 to 1968 or even before. In May 2011, a VA examiner attempted to render an opinion as to whether the Veteran's meningioma was related to Agent Orange exposure or trauma incurred in service but could not render the opinion without resorting to speculation. She indicated that she was very impressed with the letter from Dr. Schmidt, who had tried to research Agent Orange in connection with meningiomas. The VA examiner could not find a clear cut answer in her research. She indicated that some VA examiners give a 50/50 benefit of doubt and others find it not likely that brain tumors are related to Agent Orange exposure. She felt that an unbiased neurosurgeon with no previous experience with the Veteran and experience with atypical meningiomas should be the one to help make a decision. Her little research had pointed out that some early trauma could contribute to meningioma growth. She indicated that deep venous thrombosis have been attributed to meningioma growth. The Veteran did not have chloracne at the time of the examination, but there were some facial skin changes, diagnosed as telangiectasia and rosacea, that were secondary to prednisone and other medications/treatments. A May 2011 letter from Bruce Mickey, M.D., a neurosurgeon who is the chair of a department of neurological surgery in Dallas, Texas, indicates that he had reviewed the September 2010 letter from Dr. Schmidt and agreed with her statement that an extreme environmental insult such as radiation may contribute to the development of a grade II atypical meningioma. He was aware of evidence that supports an association between Agent Orange exposure and chronic lymphocytic leukemia, soft tissue sarcoma, and non-Hodgkin's lymphoma and Hodgkin's disease, and on the basis of that evidence he believes it is possible that Agent Orange exposure might act in a fashion similar to ionizing radiation and contribute to the development of a grade II atypical meningioma. In the case of meningiomas associated with ionizing radiation exposure, the latent period between the exposure and the clinical presentation of the tumor may be 30 years of more. The Board sought an independent medical expert medical opinion, and in August 2012, one was provided by R. Scott Turner, M.D., the director of a memory disorders program and professor of the department of neurology at a university medical school. He indicated that he was a board-certified neurologist with more than 16 years of clinical experience beyond internship, residency, and fellowship training in neurology. This included experience with evaluation and management of individuals with meningiomas of the brain. He indicated that he had no bias in the case and that he reviewed the Veteran's claims folder. He noted the Veteran's dates of service and the fact that Agent Orange exposure is presumed for the Veteran as he had Vietnam service. He noted that prior exposure to carcinogenic ionizing radiation increases the prevalence of grade I meningiomas later in life (typically much later in life). Grade II meningiomas were much less common and may include brain invasion. The Veteran had been diagnosed with grade II atypical meningioma in July 2006 after a clinical presentation consistent with that of a large frontal tumor (changes in personality, irritability, decreased attention, and poor motivation). He reported nervousness, mental difficulties, and sinus pressure while in service, but Dr. Turner felt that these symptoms were nonspecific and may or may not have been related to a meningioma at the time of service. Dr. Turner felt that it was unlikely that the Veteran's grade II atypical meningioma was first manifest during service or within one year of discharge. However, he felt that it was at least as likely as not that it was causally related to the Veteran's presumed in-service exposure to herbicides. He agreed with the Institute of the National Academy's 2010 ruling that there was inadequate or insufficient evidence of an association between Agent Orange exposure and cancers of the brain or nervous system. However, he noted that further studies were suggested to determine whether an association may exist. He felt that the lack of evidence did not rule out a possibility of causation, and he noted that predictions based on population studies do not extrapolate well to prediction of individual risk. He disagreed with Dr. Schmidt in that he felt that it is unlikely that a meningioma was present in service. He agreed with Dr. Mickey that exposure to a carcinogen (Agent Orange in this case) may have a delayed effect in presenting with a tumor (grade II meningioma in this case) in later life. His expert medical opinion was derived from many years of experience with similar patients, a review of the available scientific and medical literature, and a review of the particular circumstances of the Veteran's case. Based on the evidence, the Board concludes that it is as likely as not that the Veteran's grade II atypical meningioma of his brain was caused by in-service Agent Orange exposure. The independent medical expert opined to this effect in August 2012, and in doing so, he referenced the agreement between his opinion and Dr. Mickey's to the effect that Agent Orange exposure may have a delayed effect in presenting with grade II meningioma. Furthermore, Dr. Schmidt's opinion is supportive of service connection as it indicates that it was as likely as not that it was incurred at about the time of the Veteran's service. Moreover, Dr. Mickey indicated in May 2011 that Agent Orange exposure might contribute to a grade II meningioma based on the fact that evidence supports an association between Agent Orange exposure and leukemia, sarcoma, lymphoma, and Hodgkin's disease. As it appears that it is about as likely as not that the Veteran's atypical grade II brain meningioma was due to in-service Agent Orange exposure, reasonable doubt is resolved in the Veteran's favor as to causation, as the law requires. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board further concludes that the evidence supports a findings that the Veteran's deep venous thrombosis was proximately due to his service-connected grade II atypical meningioma of his brain, as there are March 2008 and May 2011 VA medical opinions of record to this effect, and no evidence of record to the contrary. In light of the above, service connection will be granted for grade II atypical brain meningioma, as due to in-service Agent Orange exposure, and for deep venous thrombosis, as secondary to the service-connected grade II atypical brain meningioma. ORDER Service connection for grade II atypical brain meningioma is warranted. Service connection for deep venous thrombosis as secondary to the service-connected grade II atypical brain meningioma is warranted. The appeal is granted to this extent. REMAND The VA skin examination conducted in May 2011 lists a diagnosis of chloracne currently asymptomatic. Comments by the examiner are not entirely clear and the Board believes additional clarification is necessary. Specifically, the examiner referred to multiple emboli in the chest and legs which is now considered a lifelong diagnosis, but was currently asymptomatic. It is unclear whether the examiner was indicating that the Veteran does have chloracne, or whether another skin disorder was being addressed. Accordingly, the case is REMANDED for the following actions: 1. The claims file should be forwarded to the VA examiner show conducted the May 2011 skin examination. The examiner should be asked to clearly report whether a medical diagnosis of chloracne is warranted based on the May 2011 examination. The examiner should specifically address the reference to emboli of the chest and legs in relation to the chloracne claim. If the May 2011 skin examiner is no longer available, then the RO should schedule the Veteran for a VA skin examination. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. All skin disorders found on examination should be clearly reported, to specifically address whether a diagnosis of chloracne is warranted. The examiner should clearly indicate whether any current skin disorder found is at least as likely as not (a 50% or higher degree of probability) causally related to the Veteran's period of active duty service, including Agent Orange exposure. The examiner should furnish a detailed rationale for the opinions with specific reference to and discussion of service treatment records and post-service medical records. 2. In the interest of avoiding further remand, the RO should review the examination report to ensure that it is responsive to the posed questions and includes a rational for all opinions. 3. After completion of the above, the RO should review the expanded record and determine if the skin disability claim can be granted. The Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if necessary. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs