Citation Nr: 1722845 Decision Date: 06/20/17 Archive Date: 06/29/17 DOCKET NO. 10-34 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a tumor on the right lung. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 1988, and from December 1990 to May 1991, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2015 and August 2016 the Board remanded the case for additional development which has been completed. The Board notes that the Agency of Original Jurisdiction (AOJ) is also processing an appeal on multiple other issues in response to a notice of disagreement (NOD) submitted by the Veteran in May 2014. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and those issues presently before the RO will be the subject of a later Board decision, if ultimately necessary. Since the AOJ last considered the appeal, additional evidence has been added to the record. The Veteran waived initial AOJ review of the evidence in September 2016. As such, initial review of the evidence by the Board is appropriate. See 38 U.S.C.A. § 7105(e) (West 2014). FINDING OF FACT The Veteran's tumor on his right lung, diagnosed as a teratoma, is a congenital disease that was not aggravated by service. CONCLUSION OF LAW The criteria for establishing service connection for a tumor on the right lung have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in October 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, service personnel records, and VA examination report which are of record, as is a transcript of the Veteran's Travel Board hearing. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board also notes that actions requested in the prior remand have been undertaken. In this regard, additional treatment records were obtained, the Veteran underwent a VA examination, and a medical opinion was obtained. Further, the Board notes that the RO mailed the Veteran an authorization form to obtain private treatment records; however, to date the Veteran has not responded. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and was not aggravated by service. A lack of aggravation may be shown 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 pre-existing condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the § 1111 presumption, the claim is one for service connection, not aggravation. Id. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2016). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a pre-existing disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that frequent exposure to "fog oil" while performing his duties during active duty service caused or contributed to the development of a benign tumor on his right lung. As noted above, the Veteran served on active duty from October 1985 to October 1988 and from December 1990 to May 1991. Service treatment records reveal that the Veteran reported pain or pressure in his chest on a November 1989 medical history report completed in connection with a periodic National Guard examination, and that he reported chest pain or pressure, as well as congestion and phlegm, on an April 1991 medical history report completed in connection with his release from his second period of active duty service. Subsequent private treatment records reflect that in July 1995, the Veteran underwent surgery to remove a right lung mass, diagnosed as a teratoma. Further, during a follow-up appointment in September 1995, a physician noted that the Veteran's lung mass was a "somewhat perplexing situation." He stated that it was unusual for a tumor in that location to be a "pure benign teratoma," and that it was also "unusual for these tumors to sit in the lung for many years without causing major problems. Upon review of the record, the Board finds that the most probative evidence is against the claim for service connection. In this regard, the medical evidence of record establishes that the benign mature teratoma is a congenital disease, and therefore, pre-existed the Veteran's military service. The December 2015 VA examiner explained that a teratoma is a germ cell tumor meaning it is derived from embryonic cell tissue. She stated these are most often found around the reproductive organs but can, as in this case, have an atypical location, and that they are considered congenital. Thus, the teratoma neither arose during active service nor was removed during active service. However, in light of the April 1991 report of medical history wherein the Veteran reported chest pain or pressure, as well as congestion and phlegm, an opinion on whether the congenital teratoma was aggravated by service was requested. Following examination of the Veteran and review of the claims file, the December 2015 VA examiner opined that the Veteran's congenital right lung teratoma was not permanently worsened beyond normal progression during service. In addressing the Veteran's assertion that the condition was due to toxic exposures, the examiner noted there are no known chemical triggers for a teratoma and in fact, they are considered congenital. She stated they usually increase in size over the years and become symptomatic or are incidental findings on imaging done for another reason. As far as the November 1989 and April 1991 report of chest pain is concerned, the examiner stated that these symptoms were the Veteran's words on a report of medical examination that can have many etiologies. Further, the Veteran did not seek care for this condition and a mediastinal teratoma would not produce nasal congestion. Regarding the comments by the Veteran's private physician as to the unusual presentation for the type and location of his right lung tumor, the examiner concluded that a less common location or presentation would not have any bearing on an aspect of military service. In support, the examiner relied on the medical treatise Up to Date and stated that while germ cell tumors are most often found in or near reproductive organs, they have the potential to be anywhere in the body. The examiner also cited to medical literature for the proposition that anterior mediastinum is the most common extragonadal site. The examiner stated that a mediastinal mass most often is an incidental finding or found as a result of a mass effect that produces symptoms of another organ system. Per Up to Date, "In adults, anterior compartment thymomas are the most common mediastinal masses, followed by lymphoma and germ cell tumors. Only one-third of lesions in adults are symptomatic." She stated that the Veteran left the service in May 1991 and there is no evidence that his congenital condition produced symptoms attributed to a mediastinal mass at that time. The examiner concluded that the Veteran's congenital right lung teratoma was not permanently worsened beyond normal progression during service. She explained that benign mature teratomas have excellent prognosis post-surgical excision, and that review of the literature did not show there was an association between fog oil, smoking and teratoma prognosis. She stated that the Veteran has had extensive follow up after his teratoma excision which has documented excellent recovery. Considering, this extensive follow up that did not yield any residual complications, the condition was not worsened beyond normal progression by any external facts. As the December 2015 opinion was provided following examination of the Veteran and thorough review of the claims file, and included a detailed rationale that cited to medical literature, the Board finds this opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no medical opinion to the contrary. While the Veteran asserts that his tumor arose in service or is otherwise related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of a teratoma and whether such condition has been worsened require medical testing and expertise to determine. The Board finds the opinion of the 2015 VA examiner to be significantly more probative than the Veteran's lay assertions in this matter. In summary, the most probative evidence indicates the Veteran's benign teratoma on his right lung is a congenital disorder that was not aggravated by his military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and service connection for a tumor on the right lung is denied. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a tumor on the right lung is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs