Citation Nr: 1805801 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-18 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for ethesioneuroblastoma. REPRESENTATION Appellant represented by: Brett Buchanan, Agent ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from September 1980 to July 1992, to include service in the Southwest Asia theatre of operations. He was also a member of the Army National Guard from January 1994 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama. In his May 2014 substantive appeal, the Veteran requested a Board videoconference hearing. However, through his representative, he subsequently withdrew his request in May 2017. In a May 2016 rating decision, the RO denied entitlement to a total rating due to individual unemployability (TDIU). In March 2017, the Veteran submitted a notice of disagreement (NOD) with respect to this decision. The RO has not issued a statement to the case with respect to this matter. However, the electronic Veterans Appeals Control and Locator System (VACOLS) also noted receipt of the NOD as to this claim. As VACOLS indicates additional action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable at this time. FINDING OF FACT Ethesioneuroblastoma did not manifest during active service, within one year of service, and was not the result of any established event, injury, or disease during active service, to include exposure to environmental hazardous in the Southwest Asia Theatre of operations. CONCLUSION OF LAW The criteria for service connection for ethesioneuroblastoma have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist With respect to the claim decided herein, the Veteran has not alleged that VA has failed to fulfill its duty notify or assist in the development of his claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Analysis The Veteran is seeking service connection for ethesioneuroblastoma. He asserts that his cancer was due to exposure to environmental hazards while stationed in the Southwest Asia Theatre of operations. Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, 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. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board observes that the Veteran served in the Southwest Asia Theatre of operations; however, as the Veteran's disorder has been attributed to a known clinical diagnosis, the presumptive regulations pertaining to an undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317 are not applicable. 38 U.S.C. § 1117 (2014); 38 C.F.R. § 3.317 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). Service personnel records show that the Veteran served in the Southwest Asia Theatre of operations in 1991. However, service treatment records are silent with respect to any findings pertaining to ethesioneuroblastoma. Post service clinical records show that the Veteran was diagnosed with ethesioneuroblastoma in 2008. In support of his claim, the Veteran submitted an April 2011 private medical opinion by B.A., M.D. Assistant Professor of Surgery, Division of Otolaryngology. The doctor outlined the Veteran's course of treatment for his ethesioneuroblastoma. The examiner opined that the Veteran's military service in Southwest Asia more likely than not was a contributing factor to ethesioneuroblastoma. This cancer was rare and is due to exposure to environmental toxins such as pollution and smoke. The Veteran was afforded a VA examination in March 2012 with the VA Chief of Medicine. After reviewing the record and examining the Veteran, the examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that there was no evidence of the onset of the Veteran's condition starting in service based on review of service treatment records. The examiner also noted that this type of cancer was extremely rare with only a few hundred cases per year. Further, based on the medical literature, the examiner saw no evidence linking Southwest Asia or pollution/smoke as an etiology for this cancer. The statement from the Veteran's private medical doctor was mere speculation, which was not confirmed with the current literature. The literature did suggest a genetic component to this cancer. There have been links to trisomy 8 in pediatric studies. The examiner concluded that if this cancer was indeed associated with travel to Southeast Asia or to pollutions/smoke, then it would not be as rare as it is. The examiner also listed his medical references. Subsequently, Dr. B.W. provided another opinion dated in February 2014. At this time, the examiner indicated that he had reviewed the service records, claims file and March 2012 opinion. The examiner stated that during the Veteran's service in the Southwest Asia Theatre of operations, he was exposed to environmental hazards of sand, dust and smoke. Ethesioneuroblastoma is a rare cancer that is associated with exposure to these hazards. This type of cancer is found more in Southwest Asia than here in the United States. Due to this type of exposure, the examiner opined that the Veteran's ethesioneuroblastoma was more likely than not associated with exposures to these environmental hazards while service in Southwest Asia. In light of the additional private opinion, a follow up VA opinion was obtained in June 2014. The examiner stated that she had reviewed the conflicting medical evidence and stated that ethesioneuroblastoma, also called olfactory neuroblastoma, was a rare cancer that occurred in the upper cribriform region of the nasal cavity. The disease is believed to arise from the cribriform region of the olfactory nerves that carry sensation of smell from the nose to the brain. The Brain Tumor Center at Johns Hopkins Hospital reports that these tumors are believed to start in the olfactory nerve, which transmits impulses related to smell from the nose to the brain. Review of the literature revealed that the cause of ethesioneuroblastoma to be unknown at this time. There are also no known risk factors. It accounts for about three percent of all nasal tumors. There was also no geographical distribution pinpointed to Southwest Asia in the literature reviewed. The examiner opined that it would be speculative to state that the cause of ethesioneuroblastoma was due to exposure of toxins and smoke in Southwest Asia when the preponderance of the literature reports that the cause of ethesioneuroblastoma was unknown and its exact cell of origin is controversial. If it were due to smoke and toxin exposure in Southwest Asia, then it would no longer be as rare as it is. Also, the Veteran was stationed in Southwest Asia for 8 months in 1991 to 1992 and subsequently developed ethesioneuroblastoma in 2008 (over 16 years later). There is no evidence that the condition began in service and continued until 2008. This is not a condition that is presumed to be associated with Gulf War exposure. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that ethesioneuroblastoma was incurred as a result of an established event, injury, or disease during active service. Initially, the Board notes that as the Veteran was not diagnosed with cancer within one year of his discharge from active service, the service incurrence of such may not be presumed. Moreover, there is no competent medical or lay evidence documenting pertinent symptomatology since service. See Walker, cited above. Nevertheless, with respect to whether the Veteran's ethesioneuroblastoma was due to environmental hazards while stationed in the Southwest Asia Theatre of operations, the Board observes that the record contains conflicting medical opinions. On one hand, Dr. BW found that the Veteran's cancer was related to his service. On the other hand, both of the VA examiners found that it was not due to his service in Southwest Asia. All of the examiners reviewed the Veteran's claims file and acknowledged the Veteran's exposure to environmental hazards in Southwest Asia during service. Nevertheless, the Board finds that the VA opinions are more probative than the opinions of Dr. B.W. In this regard, the VA examiners both referenced medical literature that indicated that the cancer was very rare and the etiology was unknown. Although Dr. B.W. also claimed that the cancer was rare, he did not reference any medical literature to back up his assertion that the etiology of such cancer was visiting Southwest Asia. The VA examiners noted that there was no medical literature to support the contention by the private examiner that it was more prevalent in Southwest Asia. In fact, the VA examiners noted that if this was the case, the cancer would most likely not be as rare. In sum, the VA examiners addressed the private opinions and noted that the private examiner's statements were speculative and not based on any known medical literature. The Board notes that, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens, 11 Vet. App. at 382. Accordingly, as the VA opinions were based on review of medical literature, the Board finds that the VA opinions are more probative than the opinions of Dr. BW. Thus, the most persuasive medical opinions on the question of etiology of ethesioneuroblastoma weigh against the claim. The Board has considered the assertions that the Veteran and his representative have advanced on appeal. However, the Veteran and his representative cannot establish a service connection claim on the basis of their assertions alone under the circumstances of this case. While the Board does not doubt the sincerity of the Veteran's belief that his ethesioneuroblastoma is related to his time in service, this claim turns on medical matters: the diagnosis of any current disorder and its relationship to the Veteran's period of service. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Board is sympathetic to the Veteran's claim, and he is certainly competent to describe his experiences in service, he is not competent to relate his ethesioneuroblastoma to these incidents in service. There is no indication that he or his representative possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). For the foregoing reasons, the claim for service connection for ethesioneuroblastoma must be denied. In arriving at the decision to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for ethesioneuroblastoma is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs