Citation Nr: 1756614 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 08-02 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a brain tumor, to include a meningioma with rhabdoid features and to include as secondary to herbicide exposure during service. 3. Entitlement to a compensable evaluation for residuals of a left inguinal herniorrhaphy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from January 1971 to April 1972, with service in the Republic of Vietnam from August 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2016. The increased evaluation issue for left inguinal herniorrhaphy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's hepatitis C did not have onset during and was not caused by his active military service. 2. The Veteran's brain tumor did not have onset during and was not caused by his active military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hepatitis C have not all been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing service connection for a brain tumor, to include a meningioma with rhabdoid features, have not all been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hepatitis C Initially, the Board reflects that the Veteran is shown to have a diagnosis of hepatitis C during the appeal period; such was first diagnosed by VA in 2005. The Veteran's service records do not document any complaints, treatment or diagnosis of hepatitis C during his period of service. On appeal, the Veteran has asserted that his hepatitis C is the result of being inoculated with vaccinations during military service by an airgun injector. In support of those assertions, the Veteran has submitted a Department of Defense (DOD) memorandum from December 1997 indicating that the airgun injector used to vaccinate servicemembers should be discontinued until assurances are made that they are safe to use. In a January 1998 DOD memorandum, airgun injectors with disposable tips were recommended instead. Finally, the Veteran submitted VA Fast Letter 04-13, which concluded that a large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products prior to 1992 and injection drug use. However, despite the lack of any scientific evidence of transmission by airgun injectors, it was noted that such was "biologically plausible." Thus, the Fast Letter instructed VA examiners to consider all modes of transmission and provide a rationale for the likelihood that airgun injectors were the source of the hepatitis C in that particular case. The Veteran underwent a VA examination in March 2009, at which time that examiner opined as follows with regards to the likely etiology of the Veteran's hepatitis C: [The] Veteran contends that his hepatitis C is due to air gun inoculations in service. The [Veteran] was first diagnosed with hepatitis C at [a] VA Medical Center. He had blood tests done [in] May [] 2005 which [were] positive for hepatitis C antibody. He, at that time, had normal liver function tests. The most recent liver function tests done [in] January [] 2008 have remained normal. As noted above, CT of the abdomen showed no liver abnormality as an incidental finding. The [Veteran] does have a history of intravenous drug abuse. He tells me that he did amphetamine. He also is documented to have done cocaine. It is my medical [opinion] that it is more likely than not that this [Veteran's] hepatitis C virus infection is connected to the [Veteran's] intravenous drug abuse that has been documented in [his VA] medical records[,] rather than to any possible other condition. The [Veteran] denies any previous blood transfusions it should be noted. There is no history of blood transfusions. Therefore . . . it is my medical opinion that it is more likely than not to be not caused by air gun inoculation in service given the fact that the [Veteran] has a history of intravenous drug abuse. During his hearing before the undersigned, the Veteran denied any intravenous drug use. However, the Board finds those statements to be not credible, in light of review of the Veteran's direct statements to the March 2009 VA examiner during the March 2009 examination. Furthermore, the Veteran reported in multiple VA treatment records, including prior to his diagnosis of hepatitis C in 2006, that he shared straws with past cocaine use, as well as using "speed" (amphetamines) and heroin; in those records to VA treatment providers, the Veteran indicated he quit using intravenous drugs in the 1980s. The Board finds that the Veteran's statements to his VA treatment providers and to the VA examiner during his March 2009 examination to be more credible than his later statements that he did not use intravenous drugs, as the statements to medical providers-particularly prior to his diagnosis of hepatitis C-are inherently more trustworthy given the motive to provide an accurate medical history in order to receive proper medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Although the Veteran and his spouse have provided statements as to their belief that his airgun injections during service cause his hepatitis C, the Veteran and his spouse are not competent to render such medical opinions. This is because the assessment of risk factors is not a simple question but rather a complex one and as such requires medical expertise to address. The record does not show that the Veteran or his spouse have such medical expertise. Just as significantly, those opinions are based on the Veteran not having used intravenous drugs and the Board has found as fact that he did use intravenous drugs. The statements relating his hepatitis C to air gun injections therefore rely on an inaccurate factual foundation. The Board acknowledges the DOD memoranda and the VA Fast Letter submitted by the Veteran. Although those documents appear to acknowledge the medical plausibility that blood-borne diseases such as hepatitis C may be contracted through airgun injectors without a disposable tip, at best, that evidence noted that it was "biologically plausible." Biological plausibility is not evidence of causation in this case; rather, such would be among one of the factors that must be considered in determining the likelihood of the etiology. The evidence, therefore, is not probative in this case as to the ultimate question of a nexus to service. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative). Instead, the sole competent evidence of record with respect to a nexus to service in this case is the March 2009 VA examiner's opinion. This evidence is the most probative evidence of record and weighs against finding a nexus to military service. The examiner considered the Veteran's contentions, including the biological plausibility of contraction by airgun injection during service; the March 2009 examiner concluded that the more likely cause of infection was the Veteran's intravenous drug abuse. Accordingly, the Board must deny the Veteran's claim of service connection for hepatitis C at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303. Brain Tumor The evidence of record documents a diagnosis of a meningioma with rhabdoid features status post excision in 2006 (hereinafter brain tumor). On appeal, the Veteran has asserted that his brain tumor-which has subsequently rematerialized following excision in 2006 and metastasized to his lower lumbar spinal region in 2016-is due to herbicide exposure, particularly Agent Orange, as a result of his service in the Republic of Vietnam. Given the Veteran's service in the Republic of Vietnam, he is presumed to be exposed to herbicides as a result of his military service. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service treatment records are void of any evidence of complaints, treatment or diagnosis of the Veteran's brain tumor during military service or for many years thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). VA regulations provide that for a veteran who has been exposed to an herbicide agent during military service, service connection for soft tissue sarcomas, to include rhabdomyosarcoma, will be presumed. See 38 C.F.R. § 3.309(e) (2017). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i) (2017). The Board, however, is unable to award presumptive service connection in this case, as a meningioma with rhabdoid features is not a soft tissue sarcoma within the meaning of VA regulation. See 38 C.F.R. § 3.307(e), Note 1. Thus, presumptive service connection is not applicable in this case, and the Board will turn to the nexus element at this time. See Combee v. Principi, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Although the Veteran and his spouse are adamant throughout the record that his brain tumor is related to military service, particularly as a result of his herbicide exposure therein, the Board reflects that neither the Veteran nor his wife are competent to render any such opinion in this case. Clearly, whether a disease was caused by exposure to Agent Orange is a complex medical question, as evidenced by the extensive research involving a relationship between diseases and such exposure that has been conducted by medical professionals. The opinions of the Veteran and his spouse in this regard are not competent evidence. Instead, the Board reflects that the Veteran underwent a VA examination in March 2009. That examiner considered the Veteran's contentions and opined as follows: The Veteran contends that his residuals of ?rhabdomyosarcoma?, craniotomy are due to exposure to herbicides. I have reviewed the actual surgical pathology reported from the hospital. . . . The date of surgery was June 21, 2006. The conclusion on the part of the pathologist was that the final diagnosis was a meningioma with rhabdoid features. It should be noted that this is a benign type of tumor. This is not a rhabdomyosarcoma. Consequently, the answer to the specific question regarding rhabdomyosarcoma is that [the Veteran] has never been diagnosed with rhabdomyosarcoma. Therefore, the question as to the relationship of the ?residuals of rhabdomyosarcoma? is an invalid question. The Rating Board is fully aware that there is a long list of cancers that by the VA decision have been identified as connected to exposure to herbicides, and I do not have this list available to me at the time of the examination, and I asked the Rating Board to determine if meningioma is one of those tumors that are on the list of VA recognized sequelae of exposure to herbicides. If there are any questions, of course, I will be glad to review the question if I am presented with information that meningioma is a tumor identified as connected with exposure to herbicides. The Veteran additionally submitted an October 2016 letter from a private nurse practitioner, J.D., who indicated that she was treating the Veteran for a spinal lesion, which was consistent with metastasis from his previous cranial lesion (rhabdoid meningioma). She further noted the Veteran's contention that such was the result of Agent Orange exposure; J.D. indicated that she did not have expertise in that area, although the question merited further investigation by VA. The Veteran additionally submitted an October 2016 letter from his VA physician, Dr. R.K.-K., who noted the extensive history of the Veteran's brain tumor since October 2005. Dr. R.K.-K. also noted that the Veteran served in Long Binh, Vietnam during his period of service. She further stated that "apparently veterans [who] served in Long Binh had greater exposure to Agent Orange than other veterans." She also noted that certain tumors including sarcomas have been implicated from exposure to Agent Orange. She concluded as follows: After reviewing [the Veteran]'s medical history [and] history of exposure to Agent Orange in service in Vietnam, it is my professional opinion that within a reasonable degree of certainty, it is at least as likely as not that [the Veteran]'s recurrent posterior fuss meningioma metastatic to L5-S1 intradural space with rhabdoid features is related to Agent Orange exposure in service in Vietnam. The Veteran also submitted a December 2016 letter from his private physician, Dr. M.S.G., indicated that he was treating the Veteran for his rhabdoid-type meningioma diagnosed and excised in 2006. Dr. M.S.G. indicated that the Veteran's tumor was noted to be more aggressive than the typical benign meningioma, and that it had, in fact, spread to his spinal column with another rhabdoid meningioma being removed from his lower lumbar spine in 2016, ten years after his prior cranial excision; he also noted a slow recurrence of the cranial tumor as well. Dr. M.S.G. finally concluded that there was "some suggestion that Agent Orange [was] a causative agent for this tumor on at least as likely as not basis." Finally, the Veteran has submitted several internet articles and other treatise evidence regarding rhabdoid and anaplastic meningiomas; those documents, however, do not document any indication or suggestion of relationship to tactical herbicide agents as defined under 38 C.F.R. § 3.307(a)(6)(i). Based on the foregoing evidence, the Board must deny service connection for the Veteran's brain tumor. The Board reflects that J.D.'s letter has no probative value as she indicated that she was not competent to render an opinion. Furthermore, Dr. M.S.G.'s opinion indicated that there was "some suggestion" that herbicides were a causative agent respecting the Veteran's brain tumor. The Board finds that opinion also lacks any probative value, as it is speculative in nature. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative). Finally, Dr. R.K.-K.'s opinion has diminished probative value when compared to the March 2009 VA examiner's opinion, as Dr. R.K.-K.'s opinion appears to rely on the fact that the Veteran was exposed to "more herbicides" than other veterans who served in the Republic of Vietnam, a finding that is not rooted in any factual basis in the record. Moreover, Dr. R.K.-K.'s opinion is unsupported by any rationale and is conclusory in nature, further diminishing its probative value. See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence). Consequently, when the entire record is viewed in totality, the Board cannot find that the evidence is at least in equipoise in this case as to whether the Veteran's brain tumor is shown to be the result of his presumed herbicide exposure during service in the Republic of Vietnam. Accordingly, as there is no indication that the Veteran's brain tumor began in or was otherwise the result of his military service, the Board must deny the Veteran's claim of service connection for a brain tumor, including a meningioma with rhabdoid features, at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. In reaching the above conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is denied. Service connection for a brain tumor, to include a meningioma with rhabdoid features, is denied. REMAND The Veteran's last VA examination of his left inguinal herniorrhaphy was in May 2014. During his hearing, the Veteran indicated that since that time, he has been treated for a recurrence of his left inguinal hernia, and he also submitted VA treatment records, particularly a June 2016 ultrasound and an October 2016 letter from his VA physician, Dr. J.D., which document that he had a small recurrent left inguinal hernia. The Veteran also indicated during his hearing that he was contemplating surgery with respect to his left inguinal hernia. Based on the foregoing evidence, as it appears that the Veteran's residuals of left inguinal herniorrhaphy may have worsened since his last VA examination, the Board finds a remand is necessary in order to afford him another VA examination which adequately addresses the current severity of that disability. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). On remand any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Philadelphia VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate examiner in order to determine the current severity of his residuals of his left inguinal herniorrhaphy. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should indicate all symptomatology associated with the Veteran's residuals of his left inguinal herniorrhaphy. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. 3. Following any additional indicated development, review the claims file and readjudicate the Veteran's claim for increased evaluation of his left inguinal herniorrhaphy. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs