Citation Nr: 1509680 Decision Date: 03/09/15 Archive Date: 03/17/15 DOCKET NO. 13-12 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a brain tumor. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from February 1978 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2013, the Veteran was afforded a videoconference hearing before John J. Crowley, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). A copy of the hearing transcript has been uploaded to the Veterans Appeals Control and Locator System (VACOLS). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he has a brain tumor (gangliocytoma) that is related to headaches, and other symptoms he had during service,beginning in 1993, to include lightheadedness, nausea, and weakness in his extremities. See Veteran's notice of disagreement, received in April 2011; transcript of hearing, held in December 2013. He further argues that he currently has residuals of a brain tumor that include headaches, a seizure disorder, and short-term memory loss. See Veteran's appeal (VA Form 9), received in May 2013. Briefly summarized, the Veteran's service treatment records show treatment for left hand numbness in April 1994. The assessment was ulnar nerve paresthesia. He received treatment for headaches on two occasions in October 1995. A CT (computerized tomography) scan of the head was within normal limits, providing evidence against this claim. The assessment were "cephalgia, resolved," and common headache. Upon separation from service, his "report of medical history," dated in September 1997, shows that he indicated that he had a history of "frequent or severe headaches." As for the post-service medical evidence, a September 1999 VA examination report shows that the Veteran reported having occasional numbness in his hands and feet which he attributed to frostbite, and occasionally severe headaches once every three to four months; there was no relevant diagnosis. An August 2009 VA progress note shows that the Veteran was noted to have smoked 11/2 to 2 packs of cigarettes per day, that he had smoked for 35 years, that he was advised to quit smoking, and that he was offered enrollment in a smoking cessation program. See also November 2010 VA progress note. In August 2010, he was noted to have a history of seizures, and he was found to have a right temporal brain mass, diagnosed as gangliocytoma. In January 2011, he underwent a right temporal craniotomy with removal of mediotemporal lobe tumor. In January 2011, the Veteran was afforded a VA examination. The examiner concluded that she was unable to provide an etiological opinion without resort to mere speculation, explaining that there were complaints of headaches during service, but no imaging studies. The examiner also stated that, "[T]here is insufficient evidence and no nexus of the incidents." A December 2012 VA progress notes states that 80 percent of the ganglioneuroma had been removed, and notes continued complaints of headaches. In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. The January 2011 VA examination report contains somewhat contradictory findings which render it inadequate for adjudication purposes. Barr; see also Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning). The Board further notes that the examiner was a nurse practitioner, and that subsequent to this examination, a significant amount of medical evidence has been associated with the claims file, to include articles which state that a ganglioma may exist "for years before the tumor is detected," and that its symptoms may include headaches, seizure, cranial pressure, nausea, and impaired movement on one side of the body. In addition, a statement from B.N., M.D., dated in April 2013, shows that this physician states that the Veteran "may have had a brain tumor back to 1994 and 1995 during his military service." While this opinion is deeply speculative, it does providing some limited probative evidence in support of this claim. The United States Court of Appeals for Veterans Claims (Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Given the foregoing, on remand, the Veteran should be afforded a new VA examination by a physician, to include another etiological opinion. The appellant is notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2014). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician to determine the nature and etiology of his brain tumor. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The physician should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran's brain tumor had its clinical onset during the Veteran's active duty service, or within one year of service discharge (in February 1998), or is otherwise etiologically related to his active service. The examiner should specifically address the Veteran's argument that he had headaches, and neurological symptoms in his extremities, during service, and that this is evidence of an existing brain tumor. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Afterwards, review the claims files to ensure that the aforementioned development and remand instructions have been fully and properly executed. Any noncompliance found should be rectified with the appropriate development. 3. Readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence, and applicable law and regulations considered. The appellant and his representative should be given an opportunity to respond to the SSOC. 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 2014). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).